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

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

Docket No. 11-480
Issued: September 26, 2011

Case Submitted on the Record

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

JURISDICTION
On December 14, 2010 appellant, through his attorney, filed a timely appeal of a
September 17, 2010 Office of Workers’ Compensation Programs’ (OWCP) merit schedule award
decision. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c)(1) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has permanent impairment of his right lower extremity
entitling him to a schedule award.
On appeal counsel argued that appellant was deprived of property rights through
OWCP’s use of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 7, 2003 appellant, then a 52-year-old clerk, filed a traumatic injury claim
alleging that he injured his right knee on that date picking up a sack of mail. On April 22, 2003
appellant underwent a magnetic resonance imaging (MRI) scan which demonstrated mild soft
tissue swelling and a tear of the anterior lateral meniscus as well as mild to moderate
chondromalacia patella and mild degenerative arthritic changes of the patellofemoral joint.
In a report dated April 10, 2003, Dr. Andre J. Pagliaro, a Board-certified orthopedic
surgeon, stated that appellant was lifting and throwing a heavy bag of mail into a bin when he
sustained a twisting injury to his right knee which caused him to fall and jam both knees into the
bin. Appellant sought additional treatment on April 18, 2003 due to increased pain, discomfort
and swelling of the right knee. On April 22, 2003 Dr. Pagliaro reviewed the result of the MRI
scan and recommended arthroscopic evaluation.
OWCP accepted appellant’s claim for right knee sprain on May 22, 2003. On March 3,
2009 appellant filed a claim for compensation requesting a schedule award. In a report dated
January 6, 2009, Dr. Arthur Becan, a Board-certified orthopedic surgeon, reviewed appellant’s
medical history and examined his right knee finding no gross effusion. He listed range of motion
as flexion/extension from 0 to 130 degrees. On manual muscle testing Dr. Becan found 4/5
strength in the right quadriceps and quadriceps circumference of 43 on the right and 46 on the
left. He diagnosed sprain and strain of the right knee, torn right lateral meniscus and aggravation
preexisting chondromalacia patella. Dr. Becan applied the fifth edition of the A.M.A., Guides
and found right lower extremity of 16 percent. Dr. Henry J. Megalith, a district medical adviser,
reviewed this report on March 19, 2009 and concurred with Dr. Becan’s findings.
In a letter dated May 19, 2009, OWCP informed appellant that beginning May 1, 2009
the sixth edition of the A.M.A., Guides became effective for determining permanent impairment
for schedule award purposes.2 Counsel responded on May 27, 2009 and requested that OWCP
issue a schedule award based on the fifth edition of the A.M.A., Guides as the claim was timely
submitted for an award under that edition of the A.M.A., Guides.
By decision dated March 22, 2010, OWCP denied appellant’s claim as he failed to submit
evidence of his permanent impairment in accordance with the appropriate edition of the A.M.A.,
Guides. Counsel requested an oral hearing on March 30, 2010. On March 5, 2010 Dr. Becan
addressed appellant’s permanent impairment under the sixth edition of the A.M.A., Guides and
found that appellant had a class 1 impairment of the right knee due to patellofemoral arthritis
resulting in three percent impairment.3 Dr. Becan found that appellant had a function history
modifier of two, physical examination modifier of three due to atrophy and clinical studies
modifier of two due to his positive findings on MRI scan and applied the appropriate formula to
2

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 1 (January 2010).
3

A.M.A., Guides 511, Table 16-3.

2

reach a grade modifier of four for an impairment rating of five percent. He stated that appellant
reached maximum medical improvement on January 6, 2009.
Counsel appeared at the oral hearing on July 19, 2010 and argued that OWCP improperly
failed to issue a schedule award based on the fifth edition of the A.M.A., Guides at the time
Dr. Megalith issued his report on March 19, 2009. The hearing representative noted that OWCP
did not have a copy of appellant’s surgical report and that the condition upon which Dr. Becan
based appellant’s schedule award under the sixth edition was patella femoral arthritis which was
not an accepted condition. He requested these documents.
On May 28, 2003 appellant underwent a right knee arthroscopy with resection of the
lateral meniscus, medial femoral condoyle chondroplasty and microfracture, chondroplasty
patellofemoral joint and resection of hypertrophic synovium, loose bodies and hypertrophic
plica.
By decision dated September 17, 2010, the Branch of Hearings and Review found that
appellant was not entitled to a schedule award on the grounds that the sixth edition of the
A.M.A., Guides did not provide for an impairment rating for the accepted condition of right knee
sprain and that appellant was therefore not entitled to a schedule award for the preexisting
condition of right knee patellofemoral arthritis.
LEGAL PRECEDENT
A claimant seeking compensation under FECA, has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence.4
Section 8107 provides that if there is permanent disability involving the loss or loss of use of a
member or function of the body, the claimant is entitled to a schedule award for the permanent
impairment of the scheduled member or function.5 A schedule award can be paid only for a
condition related to an employment injury. The claimant has the burden of proving that the
condition for which a schedule award is sought is causally related to his employment.6 In other
words, it is the claimant’s burden of proof to establish that he sustained a permanent impairment
of a scheduled member or function as a result of an employment injury.7
The schedule award provision of FECA8 and its implementing regulations9 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
4

Tammy L. Meehan, 53 ECAB 229, 230 (2001).

5

5 U.S.C. § 8107.

6

Veronica Williams, 56 ECAB 367 (2005).

7

Meehan, supra note 4.

8

5 U.S.C. §§ 8101-8193, 8107.

9

20 C.F.R. § 10.404.

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used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.10
ANALYSIS
In this case, OWCP accepted appellant’s claim for right knee sprain on May 22, 2003.
While Dr. Becan attributed appellant’s permanent impairment to right knee patella femoral
arthritis, OWCP has not accepted this condition as causally related to appellant’s employment
injury of April 7, 2003.
The medical evidence supporting appellant’s claim for a schedule award consists of the
reports of Dr. Becan who diagnosed strain and sprain of the right knee, but does not provide an
impairment rating based on the accepted condition. Instead Dr. Becan based his impairment
rating only on patellofemoral arthritis. He did not opine that this was a preexisting condition
instead listing the diagnoses of aggravation of preexisting chondromalacia patella. Dr. Becan did
not explain why he felt that the implicated condition of patellofemoral arthritis was due to the
accepted employment injury. The A.M.A., Guides provide that this condition may be rated due
to either a full thickness articular cartilage defect or unuited osteochondral fracture or based on
the cartilage interval from two millimeters to no cartilage interval.11 Dr. Becan does not describe
these findings in his report. As his report does not comport with the A.M.A., Guides in regard to
his finding of patella femoral arthritis, this report is not sufficient to meet appellant’s burden of
proof.
Furthermore, Dr. Becan did not provide an impairment rating based on the accepted
condition of strain. Consequently, there is no medical evidence in the record which addresses
appellant’s permanent impairment, if any, resulting from the strain accepted by OWCP as
employment related. The Board notes that not all medical conditions accepted by OWCP result
in permanent impairment to a scheduled member.12 The Board further notes that while
Dr. Becan’s report suggests that the diagnosed condition of patella femoral arthritis predated the
April 7, 2003 employment injury and thus this condition would be considered in evaluating
whether he has any permanent impairment as a result of the accepted conditions of strain of the
right knee,13 where the evidence does not demonstrate any permanent impairment caused by the

10

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
11

A.M.A., Guides 511, Table 16-3.

12

Thomas P. Lavin, 57 ECAB 353, 358 (2006).

13

When assessing the percentage of impairment of those conditions accepted by OWCP as job related, any
preexisting permanent impairment of the same member is included. J.H., 59 ECAB 377, 380 (2008).

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accepted occupational exposure, the claim is not ripe for consideration of any preexisting
impairment.14
On appeal, appellant asserts that she has property rights in a schedule award benefit under
the fifth edition and a protected property interest cannot be deprived without due process, citing
Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge, 424 U.S. 319 (1976). These
cases held only that a claimant who was in receipt of benefits (in Goldberg public assistance and
in Mathews Social Security benefits) could not have those benefits terminated without
procedural due process.15 In this case, appellant is simply making a claim for a schedule award.
She was not in receipt of schedule award benefits nor was OWCP attempting to terminate
benefits. Appellant has no vested right to a schedule award under the fifth edition of the A.M.A.,
Guides.
Appellant argued that there was a delay in the adjudication of the claim for a schedule
award, which deprived him of due process rights regarding a determination under the fifth
edition of the A.M.A., Guides. The Board does not find that there was any delay in the
adjudication of the schedule award claim. As noted by the hearing representative, the record
before OWCP did not contain the operative report prior to May 9, 2009. Dr. Becan addressed
this report in formulating his impairment rating and OWCP could not reasonably determine
appellant’s permanent impairment without reviewing this report. In Harry Butler,16 the Board
noted that Congress delegated authority to the Director regarding the specific methods by which
permanent impairment is to be rated. Pursuant to this authority, the Director adopted the
A.M.A., Guides as a uniform standard applicable to all claimants and the Board has concurred in
the adoption.17 On March 15, 2009 the Director exercised authority to advise that as of May 1,
2009 all schedule award decisions of OWCP should reflect use of the sixth edition of the
A.M.A., Guides.18 The applicable date of the sixth edition is as of the schedule award decision
reached. It is not determined by either the date of maximum medical improvement or when the
claim for such award was filed. OWCP properly determined appellant’s lower extremity
permanent impairment under that edition.
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.

14

Lavin, supra note 12.

15

In Mathews the court noted that the private interest that would be adversely affected by the erroneous
termination of benefits was likely to be less in a disabled worker than a welfare recipient and due process would not
require an evidentiary hearing.
16

43 ECAB 859 (1992).

17

Id. at 866.

18

FECA Bulletin No. 09-03 (issued March 15, 2009). The FECA Bulletin was incorporated in the Federal
(FECA) Procedure Manual, Part -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

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CONCLUSION
The Board finds that appellant has not submitted the necessary detailed medical opinion
evidence to establish his permanent impairment as a result of his accepted right knee strain.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2010 decision of Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 12-1641
Issued: May 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On July 30, 2012 appellant, through counsel, filed a timely appeal of the June 12, 2012
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration as it was not timely filed and failed to establish clear evidence of error. As more
than 180 days has elapsed from the last merit decision of March 3, 2011 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that her request was untimely filed and failed to demonstrate
clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 6, 2001 appellant, then a 35-year-old rural carrier, filed a traumatic injury claim
alleging that on June 4, 2001 she sustained a fracture of her lower arm during the performance of
her federal duties. OWCP accepted her claim for closed fracture of the upper end radius and
ulna and right shoulder sprain. On November 10, 2005 appellant returned to work as a modified
rural carrier for the employing establishment.
By decision dated March 16, 2006, OWCP issued a decision finding that appellant’s
position as a modified rural carrier represented her loss of wage-earning capacity (LWEC), and
since the wages in this position met or exceeded her earnings, her compensation payments were
reduced to zero. On December 3, 2010 appellant filed a claim for intermittent periods of
compensation. She indicated that she was sent home on several dates as there was no work
available. Appellant filed subsequent forms noting additional time loss from work.
By decision dated February 8, 2011, OWCP noted that the employing establishment
made a determination that no work was available as part of the National Reassessment Process
(NRP). It found that appellant did not submit evidence sufficient to warrant modification of the
LWEC decision of March 16, 2006 and denied her claim for compensation starting
November 29, 2010.
Appellant requested reconsideration on February 22, 2011. On March 3, 2011 OWCP
denied modification of the February 8, 2011 decision.
On March 14, 2012 appellant again requested reconsideration. By decision dated
June 12, 2012, OWCP denied her request as it found that it was untimely filed and failed to
demonstrate clear evidence of error.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.2 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.3 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.4
Modification of a standing loss of wage-earning capacity determination is not warranted
unless there is a material change in the nature and extent of the injury-related condition, the
employee has been retrained or otherwise vocationally rehabilitated or the original determination

2

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing that they do not fairly and reasonably represent the employee’s wage-earning capacity).
3

K.R., id; Ernest Donelson, Sr., 35 ECAB 503, 505 (1984); Roy Matthew Lyon, 27 ECAB 186, 190 (1975).

4

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

2

was erroneous.5 The burden of proof is on the party attempting to show a modification of the
loss of wage-earning capacity determination.6 There is no time limit for appellant to submit a
request for modification of a loss of wage-earning capacity determination.7
ANALYSIS
In the instant case, on March 16, 2006 OWCP issued a decision finding that appellant had
no loss of wage-earning capacity and reduced appellant’s compensation benefits to zero. On
February 8, 2011 it noted that, although the employing establishment indicated that no work was
available under NRP, appellant had not submitted evidence sufficient to warrant modification of
the LWEC determination. OWCP reviewed this decision on reconsideration, but denied
modification on March 3, 2011. Appellant filed a request for reconsideration on March 14, 2012
and, by decision dated June 12, 2012, OWCP denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
The Board finds that this case is not in posture for decision, as OWCP applied an
improper standard of review. OWCP erred when it denied appellant’s claim under the clear
evidence of error standard. When, as in this case, appellant files a claim for compensation after
a loss of wage-earning capacity decision has been issued and her hours have been reduced under
NRP, FECA Bulletin No. 09-05 requires OWCP to develop the evidence to determine whether a
modification of the decision is appropriate.8 On remand, OWCP shall further adjudicate
appellant’s request for modification of the loss of wage-earning capacity determination and issue
an appropriate decision in the case, taking into consideration the provisions of FECA Bulletin
No. 09-05.9
CONCLUSION
The Board finds that appellant is entitled to a merit review of the loss of wage-earning
capacity determination. The case will be remanded to OWCP for all necessary development and
issuance of a de novo decision on this issue.

5

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993).

6

Selden H. Swartz, 55 ECAB 272, 278 (2004).

7

See D.O., Docket No. 11-1607 (issued April 23, 2012); Daryl Peoples, Docket No. 05-462 (issued July 19,
2005); Emmitt Taylor, Docket No. 03-1780 (issued July 21, 2004); Gary L. Moreland, 54 ECAB 638 (2003).
8

D.T., Docket No. 12-217 (issued October 16, 2012).

9

FECA Bulletin No. 09-05 outlines procedures when limited-duty positions are withdrawn or hours reduced
pursuant to NRP. If, as in the present case, a formal loss of wage-earning capacity decision has been issued, OWCP
must develop the evidence to determine whether a modification of that decision is appropriate. FECA Bulletin No.
09-05 (issued August 18, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 12, 2012 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: May 24, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Durham, NC, Employer
__________________________________________

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

Docket No. 10-26
Issued: September 1, 2010

Case Submitted on the Record

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

JURISDICTION
On September 14, 2009 appellant filed a timely appeal of a March 20, 2009 decision of
the Office of Workers’ Compensation Programs denying her recurrence of disability claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained a recurrence of disability beginning May 21,
2007 causally related to her accepted employment injury.
FACTUAL HISTORY
On October 29, 2002 appellant, then a 45-year-old mail clerk, filed an occupational
disease claim alleging that she developed bilateral carpal tunnel syndrome due to repetitive use
of her hands and wrists from throwing mail and flats and keying on a computer at work.1 She
1

On July 6, 2002 appellant originally filed this as a traumatic injury claim. She refiled the claim as an
occupational disease after being advised by the Office regarding carpal tunnel syndrome claims.

stopped work on August 20, 2003 and returned to light duty on January 12, 2004. Initial medical
reports indicated bilateral carpal tunnel syndrome and pain and numbness in both hands. The
Office accepted appellant’s claim for bilateral carpal tunnel syndrome.
In a July 21, 2003 report, Dr. Peter Bronec, a Board-certified neurosurgeon, noted that
appellant developed hand numbness and tingling on June 29, 2002 that progressed to pain, left
worse than right. He indicated that an electromyogram (EMG) of both arms performed on
August 7, 2002 was normal and that nerve conduction studies were consistent with bilateral
medial nerve entrapment at both wrists. Dr. Bronec found bilateral hand pain and paresthesias
consistent with carpal tunnel syndrome based on the nerve conduction studies. He also
questioned C7 or C8 distribution weakness and possible early ulnar neuropathy. Dr. Bronec
performed left carpal tunnel release on August 20, 2003 and right carpal tunnel release on
October 31, 2003. He continued submitting reports noting continued satisfactory resolution of
carpal tunnel syndrome status post carpal tunnel releases.
Appellant returned to limited duty on January 12, 2004 with restrictions including no
lifting over 20 pounds and no pulling or pushing over 10 pounds.
On October 17, 2004 Dr. Bronec indicated that all of appellant’s residuals had resolved
and that she would have permanent work-related restrictions.
On December 1, 2004 the Office issued a notice of proposed termination of appellant’s
wage-loss and medical compensation benefits finding that the medical evidence established that
her work-related injury had resolved and that she did not have any continuing disability of
residuals due to her accepted condition. In a January 12, 2005 decision, it terminated her
compensation benefits effective that day finding that she had not submitted any evidence to alter
the recommendation to terminate her compensation benefits.
Appellant submitted several physician’s assistants reports. A December 16, 2004 report
from Dr. Iqbal Singh, a Board-certified orthopedic surgeon, diagnosed bilateral carpal tunnel
syndrome.
On November 5, 2005 appellant requested reconsideration. In a November 16, 2005
statement, she requested that the Office reevaluate her case as testing during a neurology
appointment on December 16, 2004 revealed that appellant had carpal tunnel syndrome again in
both hands.
In a May 24, 2005 decision, the Office denied appellant’s reconsideration request without
a merit review finding the evidence was repetitive and not relevant.
Appellant requested reconsideration. In a November 16, 2005 statement, she noted
requesting reconsideration because of continued problems with her hands after surgery. In an
October 27, 2005 health care certification form, Dr. Clifford Wheeless III, a Board-certified
orthopedic surgeon, advised light duty with two consecutive days off to rest appellant’s hands.
On July 29, 2005 he opined that appellant had continued carpal tunnel syndrome with resulting
neuropathic pain. In a November 1, 2005 duty status report, Dr. Wheeless diagnosed chronic
bilateral carpal tunnel syndrome from repetitive movements. He advised that appellant could
work with restrictions.
2

In a January 27, 2006 decision, the Office denied modification of its May 24, 2005 merit
decision finding the evidence was insufficient to warrant modification of its prior decision.
In a November 8, 2006 statement, appellant requested reconsideration and asserted that
she had problems after her surgeries as they did not correct her bilateral hand problems. In a
November 2, 2006 report, Dr. Latonja Ivery, Board-certified in family medicine, indicated that
appellant had continued pain, numbness and tingling in both hands in the medial nerve
distribution. She noted that an EMG test on March 8, 2006 confirmed persistent bilateral carpal
tunnel syndrome and the development of right ulnar neuropathy of the fifth digit without
evidence of left ulnar neuropathy.
In a February 8, 2007 decision, the Office vacated its January 27, 2006 decision finding
that the new medical evidence supported that appellant’s current bilateral carpal tunnel syndrome
continued to persist. It also found that the evidence supported that appellant continued to be
capable of working full-time limited duty.
Appellant stopped work on May 21, 2007 asserting that her bilateral carpal tunnel
syndrome had worsened. Duty status reports dated May 21 and August 2, 2007 from Dr. Ivery
diagnosed chronic bilateral carpal tunnel syndrome and decreased muscle strength of both hands.
She noted this condition was exacerbated by work and that appellant was unable to work.
On June 19, 2007 the employing establishment indicated that it provided appellant work
within her restrictions.
On July 9, 2007 appellant filed a claim for compensation for the period May 21 to
July 9, 2007. In an August 17, 2007 report, Dr. Ivery noted that appellant had been off work
since May 21, 2007 as a result of the progression of her carpal tunnel symptoms. She also noted
that appellant had progressive pain and weakness in both hands, left greater than right.
In an August 29, 2007 decision, the Office denied appellant’s claim for compensation
between May 21 and July 9, 2007 finding that the medical evidence of record fails to support that
appellant was disabled during the claimed period.
In a report dated September 6, 2007, Dr. Marc Richard, a Board-certified orthopedic
surgeon, noted the history of injury as reported by appellant and reported that EMG studies
showed bilateral carpal tunnel syndrome. The EMG reports were not included. On
September 20, 2007 Dr. Richard reviewed an August 29, 2007 nerve conduction study that
revealed prolonged sensory only latencies of both medial nerves and no significant progressing
from the previous 2006 study. He noted that only the medial nerve was studied at the most
recent study and that clinical examination showed weakness in the ulnar nerve distribution
demonstrated by manual muscle testing. Dr. Richard recommended EMG and nerve conduction
studies for the entire upper extremity to rule out any concomitant or more proximal pathology.
Appellant requested a review of the written record on September 24, 2007. In support of
her request, she also submitted reports from Dr. Ivery dated between June 26, 2006 and
September 12, 2007 that diagnosed carpal tunnel syndrome. In a September 12, 2007 report,
Dr. Ivery noted that appellant had been off work since May 21, 2007 due to the progression of

3

carpal tunnel symptoms. She also noted that appellant was not working as she needed to rest her
hands in an attempt to remove any precipitating activity that contributed to her symptoms.
In an October 8, 2007 nerve conduction and EMG report, Dr. Gloria Liu, a Boardcertified physiatrist, found an abnormal study with evidence of bilateral mono-medial neuropathy
at the bilateral wrist consistent with carpal tunnel syndrome and only involved demyelination.
She noted no evidence of acute axonal loss and no electrodiagnostic evidence of cervical
radiculopathy. Dr. Liu recommended clinical correlation.
In a January 17, 2008 decision, an Office hearing representative affirmed the August 29,
2007 decision finding that the medical evidence failed to establish that appellant sustained a
recurrence of total disability on or after May 21, 2007 due to the accepted employment injury.
Appellant continued filing claims for compensation for the period between July 10, 2007
and January 8, 2009.
On October 17, 2008 Dr. Ivery noted that appellant had been off work since May 21,
2007 due to symptoms from progressive bilateral carpal tunnel syndrome. She noted the
symptoms began on March 8, 2005 and included sharp pain radiating from appellant’s hands up
to her arms with numbness, tingling and weakness in her hands and fingertips. Dr. Ivery
indicated that nerve conduction studies from 2004 and 2006 showed persistent neuropathy. She
also indicated that clinical and medical treatment failed to alleviate appellant’s symptoms.
Dr. Ivery noted continued stiffness of the hands with tingling in the hands and wrist while
holding a steering wheel or simple objects. She advised that appellant’s symptoms continued to
progress and because of this she was unable to return to work. Appellant continued to submit
treatment reports from Dr. Ivery.
On January 27, 2009 the Office advised appellant of the evidence necessary to establish
her recurrence of disability claim and allowed her 30 days to submit such evidence.
In a February 23, 2009 report, Dr. Ivery reiterated that appellant had been off work due to
carpal tunnel symptoms. She noted that even light-duty tasks including sorting mail,
keyboarding, writing and cutting were too painful for appellant and that her hand weakness
would not allow her to manipulate things effectively. Dr. Ivery opined that, due to the
progressive nature of appellant’s condition, she was not able to return to any meaningful work
that would involve use of her hands.
In a February 27, 2009 statement, appellant indicated that her current disability related to
her original work injury as her carpal tunnel syndrome had spontaneously worsened due to
exposure to work factors. She noted that, when she returned to work after surgery, her light
duties involved cutting out names and addresses off magazines and writing addresses on
envelopes which bothered her hands. Appellant further noted that six months after returning to
light duty she was also assigned to sort letters and flats and that her hand condition worsened
after performing these duties. She submitted a January 22, 2008 statement from Dr. Ivery
indicating that she had been off work since May 21, 2007 and that her prognosis was poor.
Dr. Ivery noted that appellant was currently unable to perform her work duties indefinitely. On
February 13, 2009 she noted appellant’s complaints of exacerbated pain and numbness from

4

light-duty work activities postsurgery. Dr. Ivery diagnosed carpal tunnel syndrome not improved
despite bilateral surgery.
On March 2, 2009 the employing establishment noted that it had sought to obtain updated
work restrictions from Dr. Ivery but that she had not been responsive.
In a March 20, 2009 decision, the Office denied appellant’s recurrence of disability claim
beginning May 21, 2007 finding that prior Office decisions had already denied compensation
beginning May 21, 2007.
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”2 A “recurrence of disability” also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn (except when such
withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reduction-inforce), or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.3
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty job requirements.4 To establish a change in the nature and extent of
the injury-related condition, there must be probative medical evidence of record. The evidence
must include a medical opinion, based on a complete and accurate factual and medical history,
and supported by sound medical reasoning, that the disabling condition is causally related to
employment factors.5
ANALYSIS
Appellant returned to limited-duty work as a mail clerk on January 12, 2004. She
claimed a recurrence of disability beginning May 21, 2007 due to her accepted bilateral carpal
tunnel injury. Therefore, appellant has the burden of proof to show a change in the nature and

2

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

3

K.C., 60 ECAB ___ (Docket No. 08-2222, issued July 23, 2009); 20 C.F.R. § 10.5(x).

4

K.S., 60 ECAB ___ (Docket No. 08-2105, issued February 11, 2009).

5

K.C., supra note 3.

5

extent of her injury-related condition or a change in the nature and extent of her limited-duty job
requirements.
In a February 23, 2009 report, Dr. Ivery opined that appellant was unable to return to
work due to the progressive nature of her carpal tunnel syndrome. She noted that appellant’s
work activities, which consisted of sorting mail, keyboarding, writing and cutting, were too
painful for appellant to perform. Although Dr. Ivery listed activities that caused appellant pain,
she did not explain how appellant experienced disability from a spontaneous change in her
accepted condition without an intervening injury or new exposure to the work environment that
caused the illness. She also failed to provide any evidence of bridging symptoms.6 Similarly, in
a September 12, 2007 report, Dr. Ivery indicated that appellant was not working in order to rest
her hands and in an attempt to remove any precipitating activities that contributed to her
symptoms. However, she did not provide medical rationale to explain how the current disability
was due to a spontaneous change in her accepted condition. As noted, medical evidence must
contain a rationalized opinion demonstrating that the disabling condition is causally related to
employment factors.7
In duty status reports dated May 21 and August 2, 2007, Dr. Ivery generally concluded
that appellant’s work exacerbated her condition and that she was unable to work. As she failed
to clearly explain how appellant’s disability was caused by a spontaneous change in the accepted
condition, her opinion is of little probative value.8 Likewise, in reports dated between
August 17, 2007 and October 17, 2008, Dr. Ivery broadly opined that appellant had been unable
to work since May 21, 2007 due to the progression of her carpal tunnel symptoms. Although she
described symptoms resulting from appellant’s condition, she did not provide medical rationale
to explain the reasons the disability was caused by the accepted employment condition.
Dr. Ivery’s reports dated September 12, 2007 and February 13, 2009 diagnosed carpal
tunnel syndrome but did not address the issue of appellant’s disability beginning May 21, 2007.9
Likewise, the reports of Drs. Richard and Liu described findings regarding appellant’s condition
but did not clearly address the issue of causal relationship.
Consequently, the medical evidence is insufficient to establish that appellant sustained a
recurrence of disability beginning May 21, 2007 due to her accepted employment injury.

6

See Mary A. Ceglia, 55 ECAB 626 (2004) (to establish that the claimed recurrence of the condition was caused
by the accepted injury, medical evidence of bridging symptoms between appellant’s present condition and the
accepted injury must support the physician’s conclusion of a causal relationship).
7

See supra note 5.

8

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (a medical report is of limited probative
value on the issue of causal relationship if it contains a conclusion regarding causal relationship which is
unsupported by medical rationale).
9

See S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

6

Appellant may also establish a recurrence of disability by showing a disabling change in
the nature and extent of her limited-duty job requirements. On January 12, 2004 she returned to
limited duty as a mail clerk based on her current medical restrictions. On February 27, 2009
appellant indicated that her limited-duty activities involved cutting out names and addresses off
magazines and writing addresses on envelopes. She also indicated that six months after her
return to limited duty, she was also assigned to sort letters and flats. Appellant alleges that all of
these duties worsened her bilateral hand condition. However, she has not shown that her duties
were outside of her medical limitations and there is no evidence contemporaneous with the onset
of her claimed disability supporting that her duties were outside her established work restrictions
beginning May 21, 2007. In particular, appellant did not submit any evidence corroborating that
her limited-duty activities exceeded her work restrictions on lifting, pushing or pulling. As a
result, the factual evidence does not establish a disabling change in the nature and extent of
appellant’s limited-duty job requirements.
For these reasons, appellant has not met her burden of proof to establish that she
sustained a recurrence of disability on May 21, 2007 due to a disabling change in the nature and
extent of her injury-related condition or a disabling change in the nature and extent of her
limited-duty job requirements.
CONCLUSION
The Board finds that appellant has not sustained a recurrence of total disability beginning
May 21, 2007 causally related to her accepted employment injury.

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 20, 2009 is affirmed.
Issued: September 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, CARRIER ANNEX,
Albany, NY, Employer
__________________________________________

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Appearances:
Brett E. Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1521
Issued: February 7, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 9, 2012 appellant, through his counsel, filed a timely appeal of a January 13,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained a ratable impairment entitling him to a schedule
award.
FACTUAL HISTORY
On January 14, 2000 appellant, then a 33-year-old letter carrier, injured his right foot
while delivering mail. On October 25, 2000 OWCP accepted his traumatic injury claim for right

1

5 U.S.C. § 8101 et seq.

ankle sprain/strain and right tibia/fibula fracture.2 On August 5, 2003 it accepted right foot drop
and indicated that right tibia/fibula fracture was no longer accepted.3
A January 15, 2001 electromyogram (EMG) and nerve conduction study (NCS)
performed by Dr. James P. Wymer, a Board-certified neurologist, noted diminished right ankle
muscle recruitment, but did not present clear evidence of an ongoing neuropathic cause.
Stimulation of the right posterior tibial nerve on January 23, 2001 was unremarkable.
A February 1, 2001 duplex ultrasound of the right leg obtained by Dr. Mitchell E. Tublin, a
Board-certified diagnostic radiologist, did not exhibit signs of deep venous thrombosis. A
second EMG and NCS performed by Dr. Wymer on October 16, 2001 was normal while a
December 4, 2001 magnetic resonance imaging (MRI) scan obtained by Dr. Frederick J.
Fletcher, a Board-certified orthopedic surgeon, showed right intraosseous calcaneal lipoma and
otherwise intact osseous tissue, muscles and tendons.
Appellant filed a claim for a schedule award on November 26, 2007 and submitted
medical evidence.4 In a November 15, 2006 report, Dr. Daniel J. Arenos, a Board-certified
family practitioner, examined appellant and observed lack of ankle, hind foot and toe range of
motion (ROM) and mild varus deformity. He determined that appellant had impairment ratings
of 74 percent for the right foot, 52 percent for the right lower extremity and 21 percent for the
whole body as a result of the January 14, 2000 employment injury.5
OWCP’s December 10, 2007 statement of accepted facts detailed that appellant sprained
his right ankle and fractured his right tibia/fibula while in the performance of duty on
January 14, 2000. On December 10, 2007 Dr. Henry J. Magliato, an OWCP medical adviser and
Board-certified orthopedic surgeon, disagreed with Dr. Arenos’ impairment ratings. He
calculated that appellant had a 47 percent permanent impairment of the right leg.6
OWCP found that a conflict in medical opinion arose between Dr. Arenos and
Dr. Magliato regarding the extent of appellant’s permanent impairment due to his accepted
employment injury. It referred appellant to Dr. John V. Ioia, a Board-certified orthopedic
surgeon, for a referee examination. In an August 22, 2008 report, Dr. Ioia reviewed the medical
file and noted that appellant was treated for deep venous thrombosis of the right lower extremity
sometime after the January 14, 2000 work injury. On examination, he found lack of right ankle

2

OWCP subsequently authorized ankle-foot orthosis.

3

OWCP specified that the medical evidence did not sufficiently establish that the January 14, 2000 employment
injury resulted in a fractured tibia and/or fibula.
4

Appellant filed a prior claim for a schedule award on November 29, 2006, which OWCP denied by decision
dated August 24, 2007.
5

Dr. Arenos based his calculations on the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). In addition, his November 20, 2007 report essentially
restated his earlier findings.
6

Dr. Magliato based his calculations on the fifth edition of the A.M.A., Guides.

2

reflexes, dorsiflexion and plantar flexion, calf and pretibial atrophy and weakened active knee
extension.7
On September 8, 2008 Dr. Andrew A. Merola, an OWCP medical adviser and Boardcertified orthopedic surgeon, pointed out that Dr. Ioia failed to address appellant’s impairment.
On October 6, 2008 OWCP requested a supplemental opinion from Dr. Ioia, who did not
respond.
OWCP referred appellant to Dr. Robert S. Block, a Board-certified orthopedic surgeon,
for a second referee examination. In a July 1, 2009 letter, it instructed Dr. Block to base his
impairment rating on the sixth edition of the A.M.A., Guides.8
In a September 11, 2009 report, Dr. Block reviewed the medical file and performed a
physical examination of the right leg.9 He noted localized superior fibula tenderness, diminished
medial calf, anterior ankle and lateral foot sensation to pinprick, decreased hip, knee and ankle
strength and lack of active ankle and toe ROM to voluntary contraction. Dr. Block commented:
“[Appellant] is observed to extend the right knee actively when moving onto and
off the exam[ination] table. When asked to voluntarily contract the quadriceps he
provides a minimal force. With [appellant] seated he fails to provide a right
hamstring contraction but when actively lifting the left leg the right hamstring is
palpated to contract at near normal force. In moving onto and off the
exam[ination] table [he] is observed to have a weak but present anterior tibialis
contraction at the ankle but will not provide any voluntary anterior tibialis
contraction [or] any extensor hallucis longus contraction.... As noted above,
active contraction of anterior tibialis only identified when [appellant] is asked to
move spontaneously but not when he is asked to actively contract the anterior
tibialis or extensor hallucis. When [appellant] is observed ambulating [using a
cane in the right hand] ... he is supporting himself without sign of giving way or
weakness in the right knee.... There is no sign of gluteal or hamstring weakness
in the gait phase.”
Applying Tables 16-18 (Lesser Toe Impairments), 16-19 (Greater Toe Impairments), 16-20
(Hindfoot Motion Impairments) and 16-22 (Ankle Motion Impairments) of the sixth edition of
the A.M.A., Guides, Dr. Block assigned ratings of 6 percent for the lesser toes, 5 percent for the
greater toes, 5 percent for the hindfoot and 30 percent for the ankle, respectively, for a combined
46 percent leg impairment.10 He listed November 20, 2007 as the date of maximum medical
improvement.

7

Although Dr. Ioia remarked that he would utilize the fifth edition of the A.M.A., Guides, in conjunction with
New York’s workers’ compensation guidelines, he did not discuss the extent of appellant’s impairment.
8

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

9

The case record indicates that Dr. Block received the December 10, 2007 statement of accepted facts.

10

Dr. Block also included an impairment rating based on the fifth edition of the A.M.A., Guides.

3

On January 20, 2010 Dr. Morley Slutsky, an OWCP medical adviser and Board-certified
physiatrist, pointed out that the December 10, 2007 statement of accepted facts mistakenly
identified the right tibia/fibula fracture as an accepted injury.11 He added that a proper diagnosis
was required to account for appellant’s ankle symptoms in view of Dr. Block’s remarks and
recommended a neurological evaluation.12
OWCP found that a conflict in medical opinion existed between Dr. Block and
Dr. Slutsky regarding the extent of appellant’s permanent impairment due to his accepted work
injury and referred him to Dr. Shashi D. Patel, a Board-certified orthopedic surgeon, for a third
referee examination. In a May 26, 2010 report, Dr. Patel reviewed the December 10, 2007
statement of accepted facts and medical file. On examination, he found right thigh and calf
muscle atrophy, quadriceps weakness, “floppy” ankle with limited ROM and lack of deep tendon
ankle reflexes. Dr. Patel diagnosed right flail ankle and weakness of the quadriceps and
hamstring muscles. Applying Table 16-2 (Foot and Ankle Regional Grid) and Table 16-3 (Knee
Regional Grid) of the sixth edition of the A.M.A., Guides, he assigned ratings of 50 percent for
the ankle and 40 percent for the knee for a combined total of 70 percent.
On July 27, 2010 Dr. Magliato disagreed with Dr. Patel’s impairment rating. He asserted
that Dr. Patel did not adequately explain how he used the sixth edition of the A.M.A., Guides to
reach his conclusion. Dr. Magliato also articulated the need to properly diagnose appellant
ankle, in view of previous normal EMG and NCS and to determine whether the condition was
attributable to the January 14, 2000 employment injury.
OWCP referred appellant to Dr. Frank L. Genovese, a Board-certified neurological
surgeon. In a December 1, 2010 report, Dr. Genovese examined appellant’s right leg extremity
and observed minimal hip flexor weakness, lack of ankle dorsiflexion, limited plantar flexion
and diminished ankle reflexes. He noted during gait analysis without orthosis that appellant’s
right foot would “glide over the floor in an almost L-shaped manner, making me think that there
was some dorsiflexion of the right foot which was unable to be revealed with direct testing....”
Following a review of the medical file, Dr. Genovese diagnosed right foot drop, but pointed out
that appellant spontaneously demonstrated dorsiflexion and the radiological records did not
support a specific neuropathy or deep venous thrombosis. He concluded:
“My working diagnosis with the information that has been given to me at this
point is right ankle sprain with severe weakness of unknown etiology. I certainly
am in agreement with the degrees of disabilities as per the disability ratings by the
other physicians, but again, not having a clear definitive diagnosis is of
concern.”13
11

The case record contains an October 14, 2010 statement of accepted facts addendum that did not correct this
error.
12

Dr. Slutsky offered the same opinion in a March 25, 2010 report.

13

In an April 6, 2011 supplemental report, Dr. Genovese reviewed the December 10, 2007 statement of accepted
facts, the October 14, 2010 statement of accepted facts addendum and a February 8, 2011 lumbar MRI scan obtained
by Dr. Salvatore Richard Cavoli, a Board-certified diagnostic radiologist, exhibiting multilevel intervertebral disc
bulges. He did not revise his opinion.

4

In an April 7, 2011 report, Dr. Ish R. Kumar, a Board-certified neurosurgeon and OWCP
medical consultant, reviewed the medical file, the December 10, 2007 statement of accepted
facts and the October 14, 2010 statement of accepted facts addendum. He did not conduct a
physical examination. Dr. Kumar concluded that the objective findings, namely the absence of
posterior tibial, deep peroneal and superficial peroneal nerve damage, lack of atrophy and
negative diagnostic testing, were incompatible with appellant’s subjective complaints and, in
turn, did not support disability due to foot drop, deep venous thrombosis or any neuropathic
condition. Dr. Kumar recommended a psychiatric evaluation, suggesting functional overlay or
symptom magnification.
On April 14, 2011 Dr. Magliato remarked that an objective schedule award calculation
could not be ascertained in light of Dr. Genovese’s findings.
By decision dated January 13, 2012, OWCP denied appellant’s schedule award claim,
finding the medical evidence insufficient to establish that he sustained a permanent impairment
to a scheduled member due to accepted employment injury.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss of or loss of use of scheduled members or functions of the body.14 However, FECA does
not specify the manner in which the percentage of loss shall be determined. For consistent
results and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.15
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For lower extremity impairments, the evaluator identifies 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). The net adjustment
formula is (GMFH -- CDX) + (GMPE -- CDX) + (GMCS -- CDX). Evaluators are directed to
provide reasons for their impairment rating choices, including the choices of diagnoses from
regional grids and calculations of modifier scores.16
If there is a conflict in medical opinion between the employee’s physician and the
physician making the examination for the United States, OWCP shall appoint a third physician,
known as a referee physician or impartial medical specialist, to make what is called a referee
14

5 U.S.C. § 8107; 20 C.F.R. § 10.404. No schedule award is payable for a member, function or organ of the
body not specified under FECA or the implementing regulations. J.Q., 59 ECAB 366 (2008).
15

K.H., Docket No. 09-341 (issued December 30, 2011).

16

R.V., Docket No. 10-1827 (issued April 1, 2011).

5

examination.17 Where OWCP has referred appellant to a referee physician to resolve a conflict,
the referee’s opinion, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.18
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP initially accepted that appellant sustained right ankle sprain/strain and right
tibia/fibula fracture while in the performance of duty on January 14, 2000. Following further
radiological and neurological testing, OWCP amended the list of accepted conditions to replace
right tibia/fibula fracture with right foot drop. Appellant claimed a schedule award and provided
November 15, 2006 and November 20, 2007 reports from Dr. Arenos, who calculated
impairment ratings of 74 percent for the right foot, 52 percent for the right leg and 21 percent for
the whole body. On the other hand, Dr. Magliato, an OWCP medical adviser, determined that
appellant sustained a 47 percent permanent impairment of the right leg. After finding that a
conflict in medical opinion existed between Dr. Arenos and Dr. Magliato concerning the extent
of appellant’s impairment,19 OWCP referred the case to Dr. Ioia for a referee examination.
Dr. Ioia’s August 22, 2008 report presented physical examination findings, but otherwise
neglected to address the degree of appellant’s impairment based on the A.M.A., Guides. In order
to resolve a medical conflict arising in a schedule award case, the impartial medical specialist
should provide a reasoned opinion as to a permanent impairment to a scheduled member of the
body in accordance with the A.M.A., Guides.20 In an October 6, 2008 letter, OWCP asked
Dr. Ioia to clarify his August 22, 2008 report to correct this deficiency, but did not receive a
response. Consequently, Dr. Ioia’s August 22, 2008 report cannot be accorded special weight or
be used to resolve the outstanding medical conflict.21 Thereafter, OWCP properly appointed
Dr. Block, a Board-certified orthopedic surgeon, as the new referee physician.22
In a September 11, 2009 report, Dr. Block reviewed the medical file, performed a
physical examination and concluded that appellant had 46 percent permanent impairment of the
right leg based on Table 16-18, Table 16-19, Table 16-20 and Table 16-22 of the sixth edition of
the A.M.A., Guides. As noted, the report of an impartial medical specialist will be accorded
special weight so long as the report is sufficiently rationalized and based upon a proper factual
17

See 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321.

18

L.W., 59 ECAB 471 (2007); James P. Roberts, 31 ECAB 1010 (1980).

19

See Harold Travis, 30 ECAB 1071 (1979) (OWCP medical adviser may create a conflict in medical opinion
necessitating a referee examination under 5 U.S.C. § 8123(a)).
20

Thomas J. Fragale, 55 ECAB 619 (2004).

21

See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.11(d)(2) (September 2010) (the referee specialist’s report must actually fulfill the purpose for which it
was intended; it must resolve the conflict in medical opinion).
22

See L.R. (E.R.), 58 ECAB 369, 375 (2007); FECA Procedure Manual, id., Chapter 2.810.11(e).

6

background.23 Dr. Block’s report, however, contained extensive remarks indicating that
appellant did not exert full effort during the assessment. In particular, when he carried out
unprompted activities, such as walking or climbing on and off the examination table, he
demonstrated anterior tibialis and extensor hallucis longus contractions that were otherwise
absent when he was being evaluated. Dr. Block did not explain how or if he accounted for these
inconsistent findings when he calculated appellant’s impairment rating.24
Thus, his
September 11, 2009 report is insufficient to resolve the outstanding medical conflict.
OWCP referred appellant to Dr. Patel, another Board-certified orthopedic surgeon, for a
third referee examination after OWCP obtained Dr. Block’s September 11, 2009 report. At the
time of this referral, it erroneously attributed the medical conflict to Dr. Block, a referee
physician and Dr. Slutsky, an OWCP medical adviser. Under 5 U.S.C. § 8123(a), a conflict
cannot exist between two physicians making the examination for the United States.25 However,
the case record does not indicate that OWCP requested a supplemental report from Dr. Block
correcting the inadequacies of his original report before it proceeded with this referral. When
OWCP obtains an opinion from an impartial medical specialist for the purpose of resolving a
conflict in the medical evidence and the specialist’s opinion requires clarification or elaboration,
OWCP must secure a supplemental report from the specialist to cure the defect in his original
report. Only if the referee physician does not respond or does not provide a sufficient response
after being asked, should OWCP request a new referee examination.26 In this case, because
OWCP did not give Dr. Block the opportunity to clarify his opinion before it referred appellant
for a new referee examination, Dr. Patel’s May 26, 2010 report must be excluded from
consideration.27
On the basis of January 20 and March 25, 2010 reports from Dr. Slutsky, an OWCP
medical adviser who reviewed Dr. Block’s September 11, 2009 report and recommended a
neurological consultation, OWCP referred appellant to Dr. Genovese, a Board-certified
neurological surgeon. Although Dr. Patel’s appointment as a referee examiner was improper,
OWCP’s procedures allow for a separate examination by a physician who specializes in a
different field “to fully address work-related injuries and any complications that may be
23

See also James T. Johnson, 39 ECAB 1252, 1256 (1988) (the Board reviews the medical evidence to determine
whether the medical report was based on incomplete information and looks at such factors as the opportunity for and
thoroughness of examination performed by the physician; the accuracy and completeness of the physician’s
knowledge of the facts and medical history; the care of analysis manifested; and the medical rationale expressed by
the physician on the medical issues addressed to him by OWCP).
24

See K.S., Docket No. 11-2071 (issued April 17, 2012); Cleona M. Simmons, 38 ECAB 814 (1987). See also
Robert P. Bourgeois, 45 ECAB 745 (1994); Kenneth J. Deerman, 34 ECAB 641 (1983) (medical evidence must
convince the adjudicator that the conclusion drawn is rational, sound and logical).
25

See Albert J. Scione, 36 ECAB 717 (1985).

26

See supra note 22.

27

Jeannine E. Swanson, 45 ECAB 325 (1994); Joseph R. Alsing, 39 ECAB 1012 (1988). When an improperlyobtained medical report requires exclusion from the case record, it is annotated so that it is not retained and
considered in subsequent reviews of the file. Swanson, id. See also FECA Procedure Manual, supra note 21,
Chapter 2.810.11(d)(12); Terrance R. Stath , 45 ECAB 412, 420-21 (1994).

7

associated with the injuries.”28 In a December 1, 2010 report, Dr. Genovese diagnosed right foot
drop and simply agreed “with the degrees of disabilities as per the disability ratings by the other
physicians” without providing any reasoned opinion regarding impairment. His opinion cannot
represent the weight of the evidence as there is an outstanding conflict that remains unresolved.
The case record also contains an April 7, 2011 report from Dr. Kumar, an OWCP consultant,
who reviewed the record, generally addressed appellant’s disability status but did not address
permanent impairment.
Because the conflict in medical opinion between Dr. Arenos and Dr. Magliato concerning
the extent of appellant’s impairment remains unresolved, the case must be remanded. OWCP
shall request a supplemental opinion from Dr. Block. If he is unavailable or submits a report that
is not responsive to OWCP’s request, OWCP shall refer appellant to a new appropriate Boardcertified specialist for another referee examination,29 provide an updated statement of accepted
facts and annotated medical file30 and obtain a rationalized medical opinion, based upon a
complete and accurate factual background and in accordance with the sixth edition of the
A.M.A., Guides, resolving the outstanding conflict. After conducting such further development
as deemed necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

28

FECA Procedure Manual, supra note 21, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.4(b)(7) (July 2011).
29

See supra note 22.

30

The Board notes that the December 10, 2007 statement of accepted facts mistakenly identified right tibia/fibula
fracture as an accepted condition. The October 14, 2010 addendum did not correct this error. In addition, neither
listed right foot drop as an accepted condition. The statement of accepted facts must include all accepted conditions.
See FECA Procedure Manual, supra note 21, Chapter 3.600.3(a)(4) (October 1990).

8

ORDER
IT IS HEREBY ORDERED THAT the January 13, 2012 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: February 7, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WEST LOS ANGELES MEDICAL CENTER,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 18-1533
Issued: February 27, 2019

Case Submitted on the Record

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

JURISDICTION
On August 8, 2018 appellant, through counsel, filed a timely appeal from a March 5, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that counsel did not appeal from the August 2, 2018 decision which denied appellant’s claim for
a schedule award. Therefore, the Board has not exercised jurisdiction over that decision. See 20 C.F.R. § 501.3(c)(4).

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability commencing May 30, 2017, causally related to her accepted August 24, 2015
employment injury.
FACTUAL HISTORY
On August 25, 2015 appellant, then a 68-year-old health technician, filed a traumatic injury
claim (Form CA-1) alleging that on August 24, 2015 while in the performance of duty she
sustained a left knee injury when a confused patient pushed her and caused her to lose her balance.
She stopped work on the date of injury.
In a report dated September 1, 2015, Dr. Ezequiel Suarez, an attending internist, restricted
appellant to limited duty through September 10, 2015. In a report dated September 3, 2015, he
diagnosed a left knee sprain with osteoarthritis. Dr. Suarez returned appellant to full-time, fullduty work on September 14, 2015. In his report of that date, he opined that her left knee condition
had returned to baseline and released her from treatment. On October 9, 2015 OWCP accepted
that appellant sustained a left knee sprain.
On May 30, 2017 appellant filed a recurrence (Form CA-2a) alleging that she was still
experiencing pain in her left knee and having a difficult time walking and standing. She further
alleged that she previously received injections in her knee following her initial injury, but the pain
worsened after she stopped receiving injections in her left knee beginning December 2016.
In a report dated July 27, 2017, Dr. Kristine Enverga Cachola, an attending physician
specializing in occupational medicine and physiatry, noted appellant’s symptoms of left knee pain,
swelling, popping, and locking. On examination, she found hypertrophic changes to the medial
and lateral joint lines, crepitus on palpation, and degenerative osteoarthritic changes. Dr. Cachola
diagnosed osteoarthritis of the left knee with joint pain. She opined that the occupational 2015 left
knee injury had resolved. Dr. Cachola attributed appellant’s symptoms to a worsening of left knee
osteoarthritis unrelated to her federal employment. She restricted appellant to permanent modified
duty.
By development letter dated August 9, 2017, OWCP notified appellant of the additional
evidence needed to establish her recurrence claim, including a narrative report from her treating
physician which explained how and why the accepted August 24, 2015 left knee sprain had
spontaneously worsened such that she was no longer able to work. It afforded 30 days for
submission of the necessary evidence. Appellant did not provide additional evidence in response
to this request.
By decision dated September 14, 2017, OWCP denied appellant’s claim for recurrence of
disability as the medical evidence of record was insufficient to establish that the resolved
August 24, 2015 left knee sprain had spontaneously worsened. It noted that Dr. Cachola attributed
appellant’s condition to idiopathic osteoarthritis unrelated to the accepted injury.
On September 25, 2017 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative. During the hearing, held January 30, 2018, counsel asserted that

2

appellant was off from work due to left knee pain for approximately two weeks in July 2017, but
could not recall the exact dates. The hearing representative left the record open for 30 days to
allow submission of additional evidence.
Following the hearing, appellant provided additional medical evidence. In a report dated
February 9, 2018, Dr. Cachola noted that a June 6, 2016 x-ray demonstrated mild worsening of
degenerative osteoarthritis of the left knee. She attributed appellant’s left knee pain to
osteoarthritis and age-related changes which were “not work related or a recurrence” of disability.
By decision dated March 5, 2018, an OWCP hearing representative affirmed the prior
decision, finding that the medical evidence of record was insufficient to establish a recurrence of
disability commencing May 30, 2017 as a result of a material change/worsening of the accepted
employment injury. He noted that Dr. Cachola had explained in detail that appellant’s left knee
condition had been caused by osteoarthritis unrelated to the accepted August 24, 2015 left knee
sprain.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.4 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.5
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.6
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment

4

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008).

5

Id.

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket
No. 18-0334 (issued December 4, 2018); Kenneth R. Love, 50 ECAB 193, 199 (1998).

3

injury, and supports that conclusion with medical reasoning.7 Where no such rationale is present,
the medical evidence is of diminished probative value.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing May 30, 2017, causally related to her accepted August 24, 2015
employment injury.9
Dr. Cachola provided two reports which discussed appellant’s left knee condition on and
after May 30, 2017. She opined on July 27, 2017 that the occupational 2015 left knee sprain had
resolved and that any subsequent symptoms were caused by worsening of idiopathic osteoarthritis
unrelated to appellant’s federal employment. In a report dated February 9, 2018, Dr. Cachola
again attributed appellant’s left knee pain to osteoarthritis and age-related changes “not work
related or a recurrence” of disability.
Dr. Cachola did not document a spontaneous worsening of appellant’s left knee sprain
resulting in total disability on or after May 30, 2017.10 Rather, she specifically attributed
appellant’s condition to nonoccupational causes. As Dr. Cachola did not relate appellant’s
disability to the accepted left knee sprain, her reports fail to establish a work-related recurrence of
disability.11
The Board finds that the medical evidence submitted does not establish total disability
commencing May 30, 2017 due to residuals of the accepted August 24, 2015 injury. Thus, the
Board finds that appellant has not met her burden of proof to establish by the weight of the reliable,
probative, and substantial evidence, a change in the nature and extent of the injury-related
condition resulting in her inability to perform her employment duties.12
On appeal, counsel contends that OWCP’s hearing representative reviewed appellant’s
case under an incorrect standard as he considered whether the decision was “correct and
appropriate” rather than conduct a de novo review. As explained above, appellant had the burden
of proof to establish by the weight of the substantial, reliable, and probative evidence that the
disability for which she claimed compensation is causally related to the accepted injury. OWCP’s
hearing representative correctly applied this standard and the Board affirms his finding that the
evidence of record was insufficient to establish a recurrence of disability commencing
May 30, 2017.
7

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018);
see also Ronald A. Eldridge, 53 ECAB 218 (2001).
8

Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

9

J.D., supra note 7; Alfredo Rodriguez, 47 ECAB 437 (1996).

10

J.D., id.; J.H., Docket No. 12-1848 (issued May 15, 2013).

11

Id.

12

K.P., Docket No. 15-1711 (issued January 14, 2016).

4

Appellant may submit new evidence with a written request for reconsideration to OWCP
within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing May 30, 2017, causally related to her accepted August 24, 2015
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 5, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 27, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1595
Issued: February 1, 2012

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 June 28, 2011 appellant filed a timely appeal from a May 20, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of
compensation, denying waiver of recovery of the overpayment and directing repayment.
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 OWCP properly found that appellant received an
overpayment in the amount of $14,127.27 from June 1, 1997 through August 28, 2010 because
he concurrently received FECA and Social Security Administration (SSA) benefits without
appropriate retirement benefit offset; (2) whether it properly found that he was at fault in creating
the overpayment, thereby precluding waiver of recovery; and (3) whether it properly directed
recovery of the overpayment in full.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that he should not be required to repay the overpayment, as
he was not at fault in its creation and was never informed of the effect of retirement on his FECA
benefits.
FACTUAL HISTORY
On July 5, 1985 appellant sustained an acute back strain while lifting flats of mail.
OWCP accepted his claim for lumbar sprain and lumbar disc displacement. Appellant received
ongoing wage-loss compensation payments based on temporary total disability via OWCP’s
periodic rolls beginning May 8, 1990. The record reflects that, while on compensation, he
received retirement benefits from the SSA. OWCP, however, failed to offset the portion of
appellant’s social security benefits that was based upon his federal civilian service.
OWCP periodically required appellant to provide information regarding his income for
the previous 15-month period. On 11 separate occasions between May 21, 1998 and May 8,
2010, he completed the required form, indicating in each instance that he was not in receipt of
social security benefits as part of an annuity for federal service for the prior 15-month period.2
In a June 1, 2010 memorandum from the SSA, Lisa Anderson advised that appellant
received SSA benefits from June 1997 through August 2010. Ms. Anderson provided SSA rates
with a Federal Employees’ Retirement System (FERS) offset and without a FERS offset for the
applicable period.
The record contains a FERS and social security dual benefits calculation worksheet
specifying the social security benefits appellant would have received every 28 days without
FERS offset versus the amounts he should have received with FERS offset for the period June 1,
1997 through August 28, 2010. The worksheet reflects that OWCP’s failure to deduct the FERS
offset for the applicable period resulted in an overpayment of $14,127.27.
By notice dated September 15, 2010, OWCP advised appellant of its preliminary
determination that he received an overpayment in the amount of $14,127.27 because he was in
receipt of social security benefits attributable to his federal employment at the same time that he
was receiving compensation benefits under FECA for the period June 1, 1997 through
August 28, 2010. Appellant was found at fault in creating the overpayment. It requested that he
complete the enclosed overpayment recovery questionnaire and submit supporting financial
documents. Additionally, OWCP notified appellant that, within 30 days of the date of the letter,
he could request a telephone conference, a final decision based on the written evidence or a
prerecoupment hearing.
On January 11, 2011 appellant submitted an overpayment recovery questionnaire and
request for a prerecoupment hearing. He reported monthly income of $4,685.87, which included
social security benefits of $1,134.00 and compensation benefits of $1,448.00. Appellant noted
that he had a checking account with a balance of $26,000.00, a savings account with a balance of
$178,432.87, stocks and bonds worth $204,891.12 and other assets in the amount of $58,292.47,
2

Appellant signed the above-referenced forms on May 21, 1998, June 8, 2001, May 16, 2002, May 10, 2003,
July 6, 2004, July 1, 2005, May 18, 2006, June 22, 2007, May 23, 2008, May 15, 2009 and May 8, 2010.

2

for total assets in the amount of $467,616.46. He stated that his monthly expenses totaled
$2,519.35. Appellant did not submit evidence supporting his claimed expenses. He
acknowledged that he had failed to report his social security benefits to OWCP, indicating that
he “had no knowledge that there must be an offset.”
At the February 23, 2011 hearing, appellant testified that he never received notice that his
compensation should have been reduced by the amount of any social security benefits that were
attributable to federal service. He acknowledged that he had, indeed, received social security
benefits between June 1, 1997 and August 28, 2010. Appellant testified, however, that he did
not understand why he repeatedly answered “no” in response to the question as to whether he
had received social security benefits during that period. He further testified that his monthly
expenses exceeded his monthly income.
By decision dated May 20, 2011, an OWCP hearing representative found that the
preliminary determination that appellant received an overpayment of $14,127.27 for the period
June 1, 1997 to August 28, 2010, because his SSA retirement benefits based on federal service
were not deducted from his compensation during that period was correct. Finding that appellant
was at fault in the creation of the overpayment, the hearing representative denied waiver of the
overpayment. Noting that appellant failed to provide financial documentation supporting his
request for waiver, the hearing representative found that the evidence was insufficient to reach a
monthly repayment agreement. He, therefore, directed appellant to repay the overpayment
amount in full, noting that he had sufficient liquid assets to do so.
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.3 Section 8129(a) provides, in pertinent part, that when an overpayment has
been made to an individual under this subchapter 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 an individual is entitled.4
Section 8116(d)(2) of FECA provides for limitations on the right to receive compensation
and states in pertinent part:
“(d) Notwithstanding the other provisions of this section, an individual
receiving benefits for disability or death under this subchapter who is also
receiving benefits under [S]ubchapter [3] of [C]hapter 84 of this title or
benefits under [T]itle [2] of the [SSA] shall be entitled to all such benefits,
except that --”
***

3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

3

“(2) in the case of benefits received on account of age or death under title [2]
of the [SSA,] compensation payable under this subchapter based on the
[f]ederal service of an employee shall be reduced by the amount of any such
social security benefits payable that are attributable to [f]ederal service of that
employee covered by [C]hapter 84 of this title.”5
ANALYSIS -- ISSUE 1
The record establishes that appellant received compensation benefits under FECA
beginning May 8, 1990. On June 1, 2010 SSA provided information that appellant earned
regular retirement benefits from June 1, 1997 through August 28, 2010, and that a portion of his
benefits were based on federal service. The Board finds that appellant received an overpayment,
as he received compensation benefits under FECA at the same time that he received social
security benefits attributable to his federal employment.6
SSA provided OWCP with information regarding appellant’s benefit rate with, and
hypothetically without, federal service from June 1, 1997 through August 10, 2010. Based on
this information, OWCP correctly totaled the monthly offset that should have been made and
calculated that he received an overpayment of $14,127.27 for the period June 1, 1997 through
August 28, 2010. Appellant does not challenge fact or amount of the overpayment, and the
record supports OWCP’s determination that he received an overpayment of $14,127.27 for the
period June 1, 1997 through August 28, 2010.
The Board notes that the hearing representative incorrectly referred to the period of the
overpayment as June 1, 1997 to August 10, 2010. The hearing representative, however, found
that the preliminary overpayment determination, which identified the overpayment period as
June 1, 1997 to August 28, 2010, was correct. He also referenced the financial documentation
submitted by SSA and OWCP, which identified the period of the overpayment as June 1, 1997 to
August 28, 2010. The Board finds that the evidence establishes that the period of the
overpayment was June 1, 1997 to August 28, 2010, and that the hearing representative’s
reference to the overpayment period as ending on August 10, 2010 was harmless error.
LEGAL PRECEDENT -- ISSUE 2
When an overpayment of compensation has been made because of an error of factor law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled.7 OWCP may consider waiving an overpayment

5

Id. at § 8116(d)(2); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter
2.1000.11(a)(b) (January 1997); FECA Bulletin No. 97-9 (issued February 3, 1997) (the portion of SSA benefits
earned as a federal employee is part of the FERS retirement package and the receipt of FECA benefits concurrently
with federal retirement is a prohibited dual benefit).
6

5 U.S.C. § 8116(d); Janet K. George (Angelos George), 54 ECAB 201 (2002).

7

5 U.S.C. § 8129(a).

4

only if the individual to whom it was made was not at fault in accepting or creating an
overpayment.8
FECA’s implementing regulations provide that an individual is with fault, in the creation
of an overpayment who made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; failed to provide information which he or she knew or
should have known to be material; or accepted a payment which he or she knew or should have
known to be incorrect.9 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 is being overpaid.10
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is necessary to
determine whether an overpayment should be waived. This information will also be used to
determine the repayment schedule, if necessary. Failure to submit the requested information
within 30 days of the request shall result in denial of waiver and no further request for waiver
shall be considered until the requested information is furnished.11
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant was at fault in the
creation of the overpayment, thereby precluding waiver.
As noted, an individual is with fault in the creation of an overpayment who made an
incorrect statement as to a material fact which he or she knew or should have known to be
incorrect; failed to provide information which he knew or should have known to be material; or
accepted a payment which he knew or should have known to be incorrect.12 In this case, the
evidence establishes that appellant was aware that he was receiving social security and FECA
benefits simultaneously. However, he failed to inform OWCP that he was receiving social
security benefits on the forms he submitted but also repeatedly denied that he was receiving such
benefits.
Appellant contends that he was not at fault in the creation of the overpayment because no
one told him of a required offset due to his receipt of dual benefits and, therefore, presumably
was not aware that the information was material. His ignorance of the effect of the receipt of
dual benefits does not explain his misrepresentations on 11 separate occasions between May 21,
1998 and May 8, 2010 that he was not in receipt of social security benefits when, in fact, he was.
8

20 C.F.R. § 10.433(a).

9

Id. at § 10.433(a).

10

Id. at § 10.433(c).

11

Id. at § 10.438.

12

Id. at § 10.433(a).

5

The Board finds that appellant made incorrect statements as to a material fact which he knew or
should have known to be incorrect. The Board finds, therefore, that he was at fault in the
creation of the overpayment and is precluded from receiving a waiver.
LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual who is entitled to further
payments, proper adjustment shall be made by decreasing subsequent payments of compensation
having due regard to the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to minimize any
resulting hardship upon such individual.13
ANALYSIS -- ISSUE 3
The record reflects that appellant continues to receive wage-loss compensation under
FECA. As noted, appellant failed to timely submit supporting documentation or properly
represent his income on the overpayment questionnaire form. In cases where the appropriate
financial documentation or overpayment questionnaire as required by 20 C.F.R. § 10.441 is not
submitted, OWCP is unable to consider financial circumstances. The Board finds that OWCP
did not abuse its discretion in following its regulations and finding that the overpayment was due
in full.14 Appellant represented that he had liquid assets of $204,432.87 and his assets exceed the
resource base of $4,800.00. Therefore, recovery of the overpayment would not defeat the
purpose of FECA.15
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment in
the amount of $14,127.27 for the period June 1, 1997 through August 28, 2010 and that he was at
fault in creating the overpayment, thereby precluding waiver of recovery. The Board further
finds that OWCP did not abuse its discretion in determining that appellant should repay the
overpayment amount in full, as he failed to submit the necessary financial information from
which OWCP could determine an appropriate repayment schedule.

13

20 C.F.R. § 10.441(a); see Steven R. Cofrancesco, 57 ECAB 62 (2006).

14

C.H., Docket No. 09-26 (issued November 17, 2009).

15

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of FECA if it would
cause hardship because the beneficiary needs substantially all of his 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 from data provided by the Bureau of Labor Statistics. OWCP procedures provides
that assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual with a
spouse or dependent plus $960.00 for each additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 20, 2011 is affirmed as modified.
Issued: February 1, 2012
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