United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
HUNTER/HOLMES/MCQUIRE VA MEDICAL
CENTER, Richmond, VA, Employer
__________________________________________

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Appearances:
Theresa Ferguson, for the appellant
No appearance, for the Director

Docket No. 11-1553
Issued: February 16, 2012

Oral Argument November 16, 2011

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

JURISDICTION
On June 15, 2011 appellant, through her representative, filed a timely appeal from a
December 17, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which found her at fault in the creation of an overpayment of compensation and directed
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 an overpayment in compensation
in the amount of $8,083.40 was created for the period September 3, 2004 through August 8,
2008; (2) whether appellant was at fault in the creation of the overpayment; and (3) whether
OWCP properly set the rate of recovery.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 9, 1988 appellant, then a 44-year-old nursing assistant, sustained injury to her
right leg when she slipped and fell on ice in the parking lot. OWCP accepted her claim for
sprain and osteoarthritis of the right leg and provided appropriate compensation. Appellant
received compensation for partial disability at the augmented rate for dependants.
The record reflects that appellant received compensation by direct deposit. On
September 4, 2004 appellant received a direct deposit of compensation in the amount of $551.04
for the period August 8 through September 4, 2004.
In letter dated September 15, 2004, appellant informed OWCP that her husband died on
September 2, 2004. She also provided a copy of the death certificate, which confirmed her
husband died on September 2, 2004.
On October 15, 2004 she completed a Form EN1032, a form she had completed many
times in the past. In Part C, the section on dependants, the form explained who was considered a
dependent and how having a dependant, such as a husband living with her, entitled her to greater
compensation:
“A claimant who has no eligible dependants is paid compensation at 66 2/3
percent of the applicable pay rate. A claimant who has one or more eligible
dependents is paid compensation at 75 percent of the applicable pay rate. You
must answer the questions below to ensure your compensation is paid at the
correct rate.”
Appellant indicated that her husband died on September 2, 2004 and claimed no other
dependents. At the end of the form, she certified: “I understand that I must immediately report
to OWCP ... any change in the status of claimed dependents.”
Appellant claimed no dependents in subsequent EN1032 forms certified September 30,
2005, July 28, 2006, August 19, 2007 and August 8, 2008.2 OWCP continued to pay augmented
compensation for dependents from September 5, 2004 through August 8, 2008. In an August 8,
2008 letter, appellant informed it that she had a total right hip replacement on January 28, 2008.
In payment worksheets dated August 5, 2008, OWCP determined that an overpayment
existed due to change in compensation rate from the augmented three-fourths rate to the basic
two-thirds rate due to the death of appellant’s dependant spouse on September 2, 2004. It found
that she was paid $1,803.80 for the period September 3 to December 25, 2004 and $28,808.01
for the period December 26, 2004 through August 2, 2008 for a total of $30,611.81. However, at
the correct compensation rate, appellant should have been paid $26,299.12 for the period
September 3, 2004 through August 2, 2008. Thus, OWCP determined that appellant was
overpaid $4,312.69 for the period September 3, 2004 through August 2, 2008.

2

In the form signed on August 8, 2008, appellant indicated that her husband died September 2, 2004.

2

On September 12, 2008 OWCP made a preliminary determination that appellant received
an $8,083.40 overpayment from September 3, 2004 through August 8, 2008 because she
received compensation at the augmented rate for dependants when she was actually entitled to
compensation at the regular rate. It provided the total amount of compensation received at the
augmented rate and the amount she should have been paid for the periods September 2 to
December 25, 2004 and December 26, 2004 to August 2, 2008. OWCP found that appellant was
without fault in creating the overpayment.
In a September 30, 2008 letter, appellant requested a prerecoupment hearing before a
representative of OWCP. By decision dated June 24, 2009, OWCP’s hearing representative
vacated OWCP’s finding of fault as appellant had been apprised on numerous occasions that she
was in receipt of compensation at the augmented rate due to her dependent husband and she was
queried on numerous occasions regarding her dependents but continued to receive augmented
compensation after her husband’s death.
On April 6, 2010 OWCP issued a preliminary finding that appellant was overpaid in the
amount of $8,083.40 during the period September 3, 2004 through August 8, 2008 as she
continued to receive compensation at the augmented dependent rate subsequent to the death of
her dependent husband on September 2, 2004. It provided the total amount of compensation
received at the augmented rate and the amount she should have been paid for the periods
September 2 to December 25 and 26, 2004 to August 2, 2008. OWCP found that appellant was
at fault in creating the overpayment as she accepted payments she knew or should have known to
be incorrect.
Appellant requested a telephonic prerecoupment hearing before an OWCP hearing
representative on May 5, 2010. In an August 12, 2010 letter, she was informed her telephonic
hearing would take place on September 30, 2010 at 10:00 a.m. eastern time. Appellant was
provided a toll free number and a pass code to use. She did not appear for the telephonic hearing
but contacted OWCP. In an October 6, 2010 letter, OWCP notified appellant that her request to
postpone the September 30, 2010 hearing could not be granted. Thus, appellant was advised a
review of the written record would be conducted.3 She was sent a Form OWCP-20,
overpayment recovery questionnaire form, and requested to complete the form and provide
supporting documentation within 15 days.
On October 21, 2010 OWCP received an October 16, 2010 overpayment recovery
questionnaire from appellant along with some supporting financial documentation. Appellant
stated that she should be found without fault because of the deaths of her husband, sister,
daughter and grandson occurring near the same time. She indicated that she had a new hip
replacement and experienced depression and anxiety. Appellant stated that her other daughter
helped her pay her monthly bills and she did not realize she was overpaid until she received
notice from OWCP. In the October 16, 2010 overpayment recovery questionnaire, she indicated
that her monthly income was $1,546.38 which was comprised of $894.00 in social security and
$652.38 in OWCP payments. Appellant indicated that her monthly expenses were $1,732.09
which was comprised of $558.39 for rent or mortgage, $280.00 for food ($70.00 a week);
3

A copy of appellant’s request to postpone is not of record.

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$463.70 for utilities and cable (telephone $194.56, $247.82 electric and $21.32 cable); and
$430.00 for other miscellaneous household expenses ($30.00 auto expense, $100.00 fuel,
$175.00 lawn-yard and $125.00 personal necessities including clothing). She stated that other
debts were being paid by monthly installments. Appellant noted that she only had $162.44 in
available funds, which was comprised of $5.00 in cash, $51.65 checking account balance and
$105.79 savings account balance. Financial documentation submitted indicated that she received
monthly social security income of $894.00 and wage-loss compensation of $652.38 every 28
days.
By decision dated December 17, 2010, OWCP’s hearing representative finalized the
preliminary determination that appellant was at fault in creating an $8,083.40 overpayment for
the period September 3, 2004 through August 8, 2008 because she accepted a payment she knew
or reasonably should have known was incorrect. The hearing representative reviewed the
financial information appellant submitted and determined that she has net monthly income of
$1,546.38 and $1,451.81 of ordinary and necessary monthly expenses. As the difference equated
to $94.57, the hearing representative found that appellant was able to repay the overpayment in
monthly installments and that OWCP should deduct installment payments of $60.00 every 28
days until the overpayment is collected in full.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.4 If the
disability is total, the United States shall pay the employee during the disability monthly
compensation equal to 66 2/3 percent of his or her monthly pay, which is known as the basic
compensation for total disability.5 Where the employee has one or more dependents as defined
in FECA, he or she is entitled to have his or her basic compensation augmented at the rate of
8 1/3 percent, for a total of 75 percent of monthly pay.6 A husband may be a dependent if he is a
member of the same household as the employee or receives regular contributions from the
employee for his support or the employee has been ordered by a court to contribute to his
support.7 If a claimant receives augmented compensation during a period where he or she has no
eligible dependents, the difference between the compensation he or she was entitled to receive at
the two-thirds compensation rate and the augmented compensation received at the three-quarters
rate constitutes an overpayment of compensation.8

4

5 U.S.C. § 8102(a).

5

Id. at § 8105(a).

6

Id. at § 8110(b).

7

Id. at § 8110(a)(2).

8

Diana L. Booth, 52 ECAB 370 (2001).

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A final decision of OWCP shall contain findings of fact and a statement of reasons.9
With respect to overpayment decisions, it must provide clear reasoning showing how the
overpayment was calculated.10
ANALYSIS -- ISSUE 1
Appellant does not contest the fact of the overpayment, which is well established. Before
her husband’s September 2, 2004 death, she received augmented compensation because her
husband was an eligible dependent. After appellant’s husband passed away and she was no
longer entitled to augmented compensation, she continued to receive compensation at the
augmented rate. The Board finds that this created an overpayment.
As to the amount of the overpayment, however, the record contains little probative
evidence. As the Board has explained, OWCP needs to support its finding as to the amount of an
overpayment.11 There is no evidence as to the source of the information concerning the amount
appellant received at the augmented rate and the amount she should have been paid during the
period in question and whether any changes, such as changes in health benefits and life
insurance, were considered. As such the Board is unable to determine if OWCP calculations
were correct. The only evidence in the record is a calculation grid noting the amounts of
augmented compensation paid and the amount that should have been paid that does not explain
how the amount was determined. There should be some authorized documentation regarding the
proper amount of compensation due as well as the health and life insurance premiums for a
specific year or specific period, so that appellant, as well as the Board or other reviewers, may be
able to determine if the calculation of the overpayment amount was correct. A calculation grid
that simply indicates the amount appellant was paid at the augmented rate and the rate she should
have been paid for periods covered is not sufficient documentation. A claimant is entitled to an
overpayment decision that clearly explains how the amount was calculated.12 The Board further
notes that the record contains two separate overpayment amounts, one for $4,312.69 and the
other for $8,083.40, based on the same overpayment period. OWCP did not explain why it
selected the greater amount in determining the overpayment. The case will accordingly be
remanded to OWCP for a proper determination as to the amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA13 provides that adjustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of FECA or would be against equity

9

20 C.F.R. § 10.126.

10

James Tackett, 54 ECAB 611 (2003).

11

See James Tackett, supra note 10; G.K., Docket No. 08-1620 (issued July 2, 2009).

12

See Jenny M. Drost, 56 ECAB 587 (2005).

13

5 U.S.C. § 8129(b).

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and good conscience. Section 10.433 of OWCP’s implementing regulations14 provide that in
determining whether a claimant is at fault, OWCP will consider all pertinent circumstances. An
individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in the creation of the overpayment because she
accepted a payment which she knew or should have known to be incorrect. In order for it to
establish that she was at fault in creating the overpayment of compensation, it must show that, at
the time she received the compensation in question, she knew or should have known that the
payment was incorrect.15 With respect to whether an individual is with fault, section 10.433(b)
of OWCP’s regulations provide that whether or not OWCP determines that an individual was
with fault with respect to the creation of the overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the complexity of the
circumstances and the individual’s capacity to realize that he or she is being overpaid.16
Appellant’s receipt of the September 4, 2004 direct deposit in the amount of $551.04
covered a portion of the first overpayment from September 3 to 4, 2004.17 The Board has found
a claimant to be at fault in cases where he or she is receiving compensation checks through direct
deposit which involve a series of payments over several months with clear knowledge that the
payments were incorrect.18 It is not appropriate, however, to make a finding that a claimant has
accepted an overpayment by direct deposit until such time as a reasonable person would have
been aware that this overpayment had occurred. This awareness could be established either
through documentation such as a bank statement or notification from OWCP or where a
reasonable period of time has passed during which a claimant could have reviewed independent
confirmation of the incorrect payment.19 Appellant had no reason to suspect at the time the
14

20 C.F.R. § 10.433.

15

Franklin L. Bryan, 56 ECAB 310 (2005).

16

20 C.F.R. § 10.433(b); F.A., Docket No. 08-1519 (issued December 18, 2008); see also Otha J. Brown, 56
ECAB 228 (2004) (each recipient of compensation benefits is responsible for taking all reasonable measure to
ensure that payments he or she receives from OWCP are proper).
17

The deposit covered the period August 8 through September 4, 2004.

18

See Karen K. Dixon, 56 ECAB 145 (2004).

19

See K.H., Docket No. 06-191 (issued October 30, 2006).

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$551.04 payment was deposited into her checking account that OWCP had issued an incorrect
payment, given that this was the first incorrect payment made by it.20 Because the funds were
deposited directly into her bank account, she was not in a position to immediately decline
acceptance of the amount paid by OWCP. The Board finds that appellant was not at fault in
either creating or accepting the applicable portion of the overpayment for the period September 3
to 4, 2004.21 A finding of no fault does not mean, however, that the claimant may keep the
money, only that OWCP must consider eligibility for waiver for this period and the case must be
remanded for it to determine whether appellant is entitled to waiver for this period. After such
further development as OWCP may find necessary, it should issue an appropriate decision on the
issue of whether the overpayment should be waived for the relevant portion of the September 4,
2004 direct deposit.
After appellant’s receipt of the first direct deposit, for which fault may not be imputed to
her, it could be presumed that she knew the amount of compensation contained in subsequent
direct deposit checks exceeded the amount to which she was entitled. She knew or should have
known that she was receiving augmented compensation because of her husband.22 Appellant
completed EN1032 forms on September 30, 2005, July 28, 2006, August 19, 2007 and August 8,
2008 which provided her with the definition of a dependent and explained that she was not
entitled to receive compensation at the augmented rate if she did not have dependents. By
signing the EN1032 forms, she had notice that she was not entitled to compensation at the
augmented rate if she did not have a dependent. Appellant promptly notified OWCP of her
husband’s death and did not claim dependents on the EN1032 forms in the years following his
death. However as she certified each of the EN1032 forms, she knew or should have known that
the compensation she received at the augmented rate after the September 4, 2004 direct deposit
was incorrect. Even if an overpayment resulted from negligence by OWCP, this does not excuse
a claimant from accepting payments that the claimant knew or should have been expected to
know was incorrect.23 Therefore, the Board finds that appellant was with fault for the direct
deposits covering the period September 5 through August 8, 2008 as she should have known that
she accepted a payment for an incorrect amount.
On appeal, appellant argues that she should not be found at fault due to the deaths of her
husband, sister, daughter and grandson occurring near the same time. She also had a new hip
replacement and experienced depression and anxiety, from which she still suffers. Appellant
should have known, however, that what was being deposited into her checking account did not
decrease automatically after her husband’s death on September 2, 2004. A reasonable person
should have realized that the compensation being deposited into her checking account on a
regular basis was incorrect. Appellant nonetheless accepted these incorrect payments for
approximately four years. The Board therefore finds that, except as noted, OWCP had sufficient
grounds to find that she accepted payments which she should have known was incorrect.
20

See Tammy Craven, 57 ECAB 689 (2006).

21

Id.

22

A.H., Docket No. 11-714 (issued October 5, 2011).

23

Danny E. Haley, 56 ECAB 393 (2005).

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In light of the Board’s finding that the amount of the overpayment cannot be determined,
the repayment issue will not be considered at this time. On remand appellant will have an
opportunity to submit and have OWCP consider relevant financial evidence on this issue and it
shall issue an appropriate final decision as to the amount and repayment of the overpayment.
CONCLUSION
OWCP properly found that appellant received an overpayment of compensation but the
case is not in posture for decision regarding the amount of overpayment. The Board further finds
that it properly found appellant at fault in creating the overpayment for the period September 5,
2004 through August 8, 2008, but that it improperly found her at fault in creating the
overpayment that occurred from September 3 to 4, 2004.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and remanded for
further proceedings consistent with this decision.
Issued: February 16, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 15-157
Issued: March 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 31, 2014 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) overpayment decision dated September 16, 2014. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $586.92 for the period March 9 to July 26, 2014; (2) whether OWCP properly denied
waiver of recovery of the overpayment; and (3) whether it properly found that the overpayment
should be recovered by deducting $133.00 monthly from appellant’s continuing compensation
payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on January 11, 2013 appellant, then a 36-year-old mail handler,
sustained a left ankle sprain and left rupture of the Achilles tendon when he slipped off a piece of
equipment. He began receiving wage-loss compensation on February 26, 2013 and was placed
on the periodic rolls effective June 2, 2013.
By letter dated May 31, 2013, OWCP informed appellant of the weekly pay rate used to
compute his gross compensation benefits and deductions for his elected benefits of optional life
insurance (OLI), basic life insurance (BLI), and health insurance. Regular payments for BLI
were noted as $16.50. No deductions were indicated for post-retirement basic life insurance
(PRBLI). OWCP utilized appellant’s annual salary of $52,994.00 to calculate the weekly pay
rate.
On March 26, 2014 OWCP notified appellant of a proposal to terminate his wage-loss
compensation benefits because he was not experiencing any residuals or disability connected to
the employment injury and was capable of returning to full-duty work.2
By letter dated June 24, 2014, the Office of Personnel Management (OPM) advised
OWCP that appellant’s final base salary was $53,670.00 for which the Federal Employees’
Group Life Insurance (FEGLI) Program was based. OPM further noted that appellant had
elected PRBLI effective March 8, 2014.
By letter dated August 6, 2014, OWCP informed appellant that, beginning July 27, 2014,
deductions for the additional life insurance of PRBLI would be made in the amount of $117.08.
It further noted that $16.80 would be deducted for BLI.
On August 7, 2014 OWCP made preliminary findings that appellant received an
overpayment of $586.92 for the period March 9 to July 26, 2014 because no deductions were
made for PRBLI and BLI should have been deducted at $16.80, up from $16.50. It found that
appellant was without fault in the creation of the overpayment. The memorandum explained that
appellant’s PRBLI became effective on March 8, 2014 and his annual salary for life insurance
purposes was $53,670.00 not the $52,994.00 amount used. As appellant’s annual salary
increased, the BLI increased to $16.80 as it should have been deducted from the higher salary
rate. Based on five plates of nondeduction for PRBLI at $117.08 per plate, OWCP calculated an
overpayment of $585.42.3 It further noted that the difference of the BLI deductions was .30
cents per plate ($16.80 - $16.50) which was multiplied by five plates resulting in an overpayment
of $1.50 for BLI deductions. OWCP then added the $585.42 for PRBLI with $1.50 for BLI
resulting in an overpayment of $586.92 for the period March 9 to July 26, 2014.

2

The Board notes that no final termination decision has been issued with respect to the proposed termination of
appellant’s wage-loss compensation benefits.
3

OWCP explained that the extra two cents were due to a fraction of a penny actually owed as part of the $117.08
per plate, which entailed the regular deduction for PRBLI.

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As OWCP determined that appellant was without fault in the creation of the
overpayment, it requested that he submit financial information pursuant to the enclosed
overpayment recovery questionnaire (OWCP-20) within 30 days if he was requesting waiver of
the overpayment. It noted that waiver would be denied if appellant failed to furnish the
information requested on the enclosed OWCP-20 form with supporting documentation within 30
days.
In an August 13, 2014 OWCP telephone note, appellant requested a telephone conference
pertaining to the preliminary overpayment decision.
A telephone conference was held on August 22, 2014. The senior claims examiner listed
information provided by appellant pertaining to his income and expenses on an OWCP-20 excel
sheet and requested copies of bills to support the amounts given. Appellant stated that he was
separated from his wife, but continued to support her, spending approximately $100.00 to
$200.00 per month. He further stated that he provided support in the amount of $300.00 per
month to his son who recently started college. The record was held open for 15 days.
The August 22, 2014 OWCP-20 form indicated that appellant received a monthly income
of $2,899.65. Appellant reported monthly household expenses in the amount of $200.00 for
food, $100.00 for clothing, $1,670.00 for rent/mortgage, $200.00 for electricity, $100.00 for
water, $150.00 for telephone, $381.00 for car loan payment, $200.00 for gas, $50.00 for car
maintenance, $50.00 for insurance, $10.00 for medical expenses unreimbursed, $150.00 for
cable, $15.00 for newspapers, and $80.00 for haircuts totaling $3,356.00. He reported $50.00 in
cash on hand and $50.00 in his checking account totaling $100.00 in net assets. Taking the total
net monthly income of $2,899.65 and subtracting the monthly expenses of $3,356.00 resulted in
a difference of -$456.35.
By letter dated August 25, 2014, OWCP requested that appellant provide copies of bills
to support the dollar amounts stated on the OWCP-20 form.
On September 15, 2014 appellant submitted various bills in support of his request for
waiver of recovery. He submitted an itemized transaction history for his checking account for
the period July 7 to August 12, 2014 which indicated a total balance of $70.41. The transaction
history showed numerous payments for bills and miscellaneous items during this time frame.
Appellant further provided a Bank of America Home Loan Bill for $1,672.79 in monthly
mortgage payments, an August 5, 2014 Sherman Residential Rental Agreement which indicated
various monthly charges, an August 20, 2014 water bill in the amount of $94.10, and an
August 7, 2014 electric bill in the amount of $337.11. He also submitted an August 18, 2014
college enrollment verification form for his son.
By decision dated September 16, 2014, OWCP finalized the preliminary determination
finding that appellant was overpaid in the amount of $586.92 for the period March 9 to July 26,
2014 because no deductions were made for PRBLI and an incorrect amount was used for BLI
deductions. It found that he was without fault in the creation of the overpayment but denied
waiver of recovery because he failed to submit the requested and required copies of
documentation to verify his expenses and bank balance. OWCP determined that appellant could
repay the overpayment by deducting $133.00 from continuing compensation every 28 days.

3

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 his duty.4 Section 8129(a) of FECA provides, in pertinent part: 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.5
Section 8116(a) of FECA provides that while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the
expiration of the period during which the installment payments would have continued, the
employee may not receive salary, pay or remuneration of any type from the United States, except
in limited specified instances.6
Under the FEGLI program, most civilian employees of the Federal Government are
eligible to participate in BLI and one or more of the options.7 The coverage for basic life is
effective unless waived8 and premiums for basic and optional life coverages are withheld from
the employee’s pay.9
FECA and its implementing regulations provide that an employee entitled to disability
compensation benefits may continue BLI coverage without cost under certain circumstances10
and may also retain the OLI.11 At separation from the employing establishment, FEGLI
insurance will either terminate or be continued under compensationer status.12 If the
compensationer chooses to continue BLI and OLI insurance coverage, the schedule of
deductions made while the compensationer was an employee will be used to withhold premiums
from his or her compensation payments.13 Thus, while receiving disability compensation in lieu
of retirement benefits, the former employee is responsible for all insurance premiums.14

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8116(a).

7

5 C.F.R. § 870.201.

8

Id. at § 870.204(a).

9

Id. at § 870.401(a).

10

Id. at § 870.701, subpart G.

11

Id. at § 871.201, subpart B; 8702.201, subpart B; 873.203, subpart B.

12

Id. at § 870.501.

13

Id. at § 872.410, subpart D.

14

Scherri L. Stanley, 53 ECAB 433 (2002).

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A final decision of OWCP shall contain findings of fact and a statement of reasons.15
With respect to overpayment decisions, OWCP must provide clear statements showing how the
overpayment was calculated.16 Its regulations on the recovery of overpayments provide that
before collecting the overpayment, it must provide the claimant with written notice of the fact
and amount of the overpayment, the finding of fault, right to submit evidence challenging the
fact, amount or finding of fault, and the right to request waiver of the overpayment.17
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $586.92 for the period March 9 to July 26, 2014.
The record shows that the overpayment occurred because no deductions were made for
PRBLI and an incorrect amount was used for BLI deductions from March 9 to July 27, 2014.
OPM informed OWCP that appellant’s PRBLI became effective on March 8, 2014 and his
annual salary for life insurance purposes was $53,670.00, not $52,994.00. With the increased
salary, deductions for BLI increased to $16.80 from $16.50.
The August 7, 2014 OWCP memorandum explained that an overpayment of $585.42
occurred from March 9 to July 27, 2014 based on five plates of nondeduction for PRBLI at
$117.08 per plate. An additional .30 cents should have been deducted per plate for BLI
deductions which amounted to $1.50 for five plates.18 After adding $585.42 for PRBLI to $1.50
for BLI, OWCP properly calculated a total overpayment of $586.92 for the period March 9 to
July 26, 2014.19
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.20 These statutory
guidelines are found in section 8129(b) of FECA which states: Adjustment or recovery of an
overpayment by the United States may not be made when incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.21 If OWCP finds a claimant to
15

20 C.F.R. § 10.126.

16

James Tackett, 54 ECAB 611 (2003); Sandra K. Neil, 40 ECAB 924 (1989).

17

20 C.F.R. § 10.431.

18

Coverage for basic life is effective unless waived and premiums for basic and optional life coverages are
withheld from the employee’s pay. 5 C.F.R. § 870.204(a) and § 870.401(a). Thus, appellant is responsible for
payment of the premiums and the premiums must be deducted from his compensation payments. W.J., Docket No.
12-672 (issued August 24, 2012).
19

S.W., Docket No. 11-895 (issued December 5, 2011).

20

See Robert Atchison, 41 ECAB 83, 87 (1989).

21

5 U.S.C. § 8129(b).

5

be without fault in the matter of an overpayment, then, in accordance with section 8129(b), it
may only recover the overpayment if it determined that recovery of the overpayment would
neither defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
or her 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.22 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his or her position for
the worse.23 To establish that a valuable right has been relinquished, it must be shown that the
right was in fact valuable, that it cannot be regained and that the action was based chiefly or
solely in reliance on the payments or on the notice of payment.24
ANALYSIS -- ISSUE 2
As appellant was found to be without fault in the creation of the overpayment in
compensation, waiver must therefore be considered, and repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against
equity, and good conscience. The Board finds that the case is not in posture for a decision
regarding waiver of recovery of the overpayment.25
On September 16, 2014 OWCP denied waiver of recovery of the overpayment because
appellant did not submit the requested and required copies of documentation to verify his
expenses and bank balance. A review of the record, however, reveals that OWCP received on
September 15, 2014 an itemized checking account transaction history dated July 7 to August 12,
2014 with a total balance of $70.41, a Bank of America Home Loan Bill for monthly mortgage
payments of $1,672.79, an August 5, 2014 Sherman Residential Rental Agreement which
indicated various monthly charges, an August 20, 2014 water bill in the amount of $94.10, and
an August 7, 2014 electric bill in the amount of $337.11. Appellant also submitted an
August 18, 2014 college enrollment verification form for his son.

22

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his or her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Desiderio Martinez, 55 ECAB 245 (2004). OWCP procedures provide 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) (June 2009).
23

Id. at § 10.437(a), (b).

24

Id. at § 10.437(b)(1).

25

J.L., Docket No. 12-924 (issued November 6, 2012).

6

Board precedent holds that OWCP must review all the evidence submitted by a claimant
and received by OWCP prior to the issuance of a final decision.26 As the Board’s jurisdiction is
final as to the subject matter, it is crucial that OWCP accomplish this.27
Because OWCP found that appellant failed to submit supporting financial documentation,
it is clear that it did not consider the factual evidence submitted by him on September 15, 2014 in
reaching its overpayment decision and denying waiver of recovery.28 Whether OWCP receives
relevant evidence on the date of the decision or several days prior, such evidence must be
considered.29 As OWCP failed to address all of the relevant evidence of record at the time it
issued its September 16, 2014 decision, the Board will set aside the September 16, 2014 decision
on the issue of waiver and recovery and remand for consideration and review of all the evidence.
Following such further development as OWCP deems necessary, it shall issue an appropriate
decision on whether overpayment should be waived.30
CONCLUSION
The Board finds that OWCP properly determined that appellant received a $586.92
overpayment of compensation for the period March 9 to July 26, 2014 and was not at fault for
the overpayment. Consequently, the case must be remanded to OWCP to determine his
eligibility for waiver of recovery of the overpayment.31

26

See M.B., Docket No. 09-17 (issued September 23, 2009); Yvette N. Davis, 55 ECAB 475 (2004); Linda
Johnson, 45 ECAB 439 (1994) (evidence received the same day as the issuance of OWCP’s decision); William A.
Couch, 41 ECAB 548 (1990); 20 C.F.R. § 501.6(c).
27

Id.

28

R.L., Docket No. 14-1006 (issued January 26, 2015).

29

Willard McKennon, 51 ECAB 145 (1999).

30

J.B., Docket No. 11-2005 (issued July 23, 2012).

31

In view of the Board’s finding that the case must be remanded for OWCP to consider waiver of the
overpayment, it is premature to address the amount of recovery of the overpayment.

7

ORDER
IT IS HEREBY ORDERED THAT the September 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed in part with regard to the fact and amount of
overpayment. The decision is set aside with regard to waiver of recovery and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: March 16, 2015
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate 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.B., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Leavenworth, KS, Employer
__________________________________________

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

Docket No. 10-1330
Issued: January 10, 2011

Case Submitted on the Record

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

JURISDICTION
On April 14, 2010 appellant filed a timely appeal from the January 25 and April 2, 2010
merit decisions of the Office of Workers’ Compensation Programs denying his claim for a back
injury. 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 back injury on October 22, 2009 while in the
performance of duty.
On appeal appellant contends that the medical evidence is sufficient to establish causal
relationship.
FACTUAL HISTORY
On October 23, 2009 appellant, then a 28-year-old telecommunications mechanic, filed a
traumatic injury claim alleging that he injured his upper back on October 22, 2009 while lifting a
tool bag.

On December 18, 2009 the Office asked appellant to provide additional information,
including a physician’s report with a rationalized explanation of how his back condition was
causally related to work activity on October 22, 2009.
In reports dated December 2, 7 and 22, 2009, Mark Miller, a physician’s assistant, noted
that appellant had experienced severe back pain for the prior week. He diagnosed lumbago
(lower back pain).
In a December 11, 2009 magnetic resonance imaging (MRI) scan report, Dr. Douglas W.
Nemmers, a radiologist, noted a small right paracentral disc extrusion at L4-5 that could be
impinging the L5 nerve root and a small central disc extrusion at L5-S1 that did not appear
significant.
By decision dated January 25, 2010, the Office accepted that the October 22, 2009 lifting
incident occurred as alleged but denied appellant’s claim on the grounds that the medical
evidence failed to establish causal relationship between his back condition and his work activity
that day.
In a January 21, 2010 attending physician’s report, Dr. Robert M. Beatty, a Boardcertified neurosurgeon, diagnosed a small disc protrusion at L4-5, minimal at L5-S1 with
radiculopathy. In answer to the form question as to whether the condition was caused or
aggravated by an employment activity, he wrote “unknown.” Dr. Beatty noted that he saw
appellant on January 7, 2010 and they did not discuss his job.
On February 1, 2010 appellant requested reconsideration and submitted additional
medical evidence. In an attending physician’s report dated February 22, 2010, Dr. Peter
Cristiano, a family practitioner, provided a history of lifting a tool bag at work, causing lower
back pain. He diagnosed lumbago. Regarding causal relationship, Dr. Christiano indicated that
appellant had no history of back pain.
By decision dated April 2, 2010, the Office denied modification of the January 25, 2010
decision.1
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.2 Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.3 An
1

Subsequent to the April 2, 2010 Office decision, additional evidence was associated with the file. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

3

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354 (1989).

2

employee may establish that the employment incident occurred as alleged but fail to show that
his or her disability or condition relates to the employment incident.
To establish a causal relationship between an employee’s condition and any disability
claimed and the employment event or incident, he or she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the employee’s
diagnosed condition and the compensable employment factors. The opinion of the physician
must be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.4
ANALYSIS
Appellant alleged that he injured his back on October 22, 2009 while lifting a tool bag.
The Office accepted that he lifted a tool bag on October 22, 2009 as alleged, but denied the claim
on the grounds that he had not established causal relationship between this incident and his
diagnosed condition. The Board affirms this finding.
The December 11, 2009 MRI scan report, revealed a small right paracentral disc
extrusion at L4-5 that could be impinging the L5 nerve root. Dr. Nemmers did not explain how
the lumbar disc pathology found was related to the October 22, 2009 incident when appellant
lifted a tool bag. The MRI scan report does not establish causal relationship between his back
condition and his employment.
On January 21, 2010 Dr. Beatty diagnosed a small disc protrusion at L4-5 with
radiculopathy. Appellant’s job activities were not discussed. In answer to the form question as
to whether the condition was caused or aggravated by an employment activity, he wrote
“unknown.” As Dr. Beatty did not find that appellant’s disc problem was causally related to
lifting a tool bag on October 22, 2009, this report does not establish a work-related back injury.
On February 22, 2010 Dr. Cristiano provided a history that appellant lifted a tool bag at
work and experienced back pain. He diagnosed lumbago. Regarding causal relationship,
Dr. Christiano indicated that appellant had no prior history of back pain. The Board has held that
the opinion of a physician that a condition is causally related to an employment injury simply
because the employee was asymptomatic before the injury is insufficient, without supporting
medical rationale, to establish causal relationship.5 Lacking sufficient medical rationale on the
issue of causal relationship, Dr. Christiano’s report is of diminished probative value and does not
establish a work-related back injury.

4

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

Jaja K. Asaramo, 55 ECAB 200 (2004).

3

Mr. Miller noted that appellant had experienced severe back pain for the past week. A
physical therapist does not qualify as a physician as defined under the Federal Employees’
Compensation Act.6 Physician’s assistants and physical therapists are not physicians as defined
under the Act and their opinions are of no probative value.7 Mr. Miller’s reports do not establish
that appellant’s back pain was causally related to the October 22, 2009 lifting incident at work.
The Board finds that the medical evidence is insufficient to establish that appellant
sustained a back injury on October 22, 2009 while in the performance of duty.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a back injury on
October 22, 2009 while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 2 and January 25, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 10, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

See 5 U.S.C. § 8101(2) which provides: “‘physician’ includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by state law.” See Roy L. Humphrey, 57 ECAB 238 (2005); Jennifer L. Sharp, 48 ECAB 209 (1996).
7

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Memphis, TN,
Employer
__________________________________________

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)
)
)
)
)
)
)
)

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

Docket No. 17-1610
Issued: February 22, 2018

Case Submitted on the Record

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

JURISDICTION
On July 19, 2017 appellant filed a timely appeal from a June 9, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish permanent impairment
due to his accepted right thumb condition, warranting a schedule award.
FACTUAL HISTORY
On December 15, 2015 appellant, then a 40-year-old metal worker/welder, filed a
traumatic injury claim (Form CA-1) alleging that, on November 24, 2015, he sustained a
1

5 U.S.C. § 8101 et seq.

fracture and laceration of his right thumb at work. He explained that, when he was using an
eight-pound sledge hammer to drive a line-up pin out of a ladder, the hammer glanced off the pin
and collided with his right thumb. Appellant stopped work on November 24, 2015 and returned
on December 3, 2015 in a light-duty job without wage loss.2
Appellant received medical treatment for his right thumb condition from Dr. James H.
Calandruccio, an attending Board-certified orthopedic surgeon, at the Campbell Clinic the day
after the accident at work and, in a November 25, 2015 report, he noted that appellant’s right
thumb had been sutured the prior day at another Campbell Clinic location. Dr. Calandruccio
indicated that appellant would be given an Orthoplast hand splint to protect the thumb and that
the sutures would be removed in a week. He noted that x-rays of the right thumb showed a
comminuted fracture of the distal phalanx without significant articular components.
In a February 17, 2016 report, Dr. Calandruccio advised that appellant continued to
complain of right thumb symptoms, including restricted motion, loss of sensation, and marked
sensitivity at the end of the deformed thumbnail. The physical examination of appellant’s right
thumb on that date revealed that he had an abnormal nail with approximately 20 percent new nail
formation, loss of sensation about the radial aspect of the thumb, and interphangeal joint motion
from 0 to approximately 30 degrees. Dr. Calandruccio noted that recent x-rays showed further
consolidation of the right distal phalanx fracture and indicated that at some point appellant might
need a nail plate procedure.
On March 18, 2016 OWCP accepted that appellant sustained a closed displaced fracture
of the distal phalanx of the thumb.3
On March 28, 2016 appellant filed a claim for a schedule award (Form CA-7). He
submitted a March 7, 2016 report, in which Dr. Calandruccio indicated that he was providing a
permanent impairment rating under the standards of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides).
Dr. Calandruccio noted that, under Table 15-2 on page 393, appellant had six percent permanent
impairment of his right thumb due to his distal phalanx fracture, which converted to two percent
permanent impairment of his right hand, two percent permanent impairment of his right upper
extremity, and one percent permanent impairment of the whole person. Under Table 15-16 on
page 427, the radial nerve sensory loss of appellant’s right thumb equaled 20 percent permanent
impairment of his right thumb, which converted to 8 percent permanent impairment of his right
hand, 7 percent permanent impairment of his right upper extremity, and 4 percent whole person
permanent impairment. Dr. Calandruccio indicated that the combined total of appellant’s whole
person impairment was five percent.
In a May 22, 2016 report, Dr. Morley Slutsky, a Board-certified occupational medicine
physician serving as an OWCP medical adviser, noted that he had reviewed all the medical
evidence of record, including the March 7, 2016 impairment rating report of Dr. Calandruccio.
He indicated that, in this report, Dr. Calandruccio provided final permanent impairment numbers
2

Appellant used leave to cover his absence and did not apply for or receive wage-loss compensation.

3

OWCP mistakenly indicated that the injury was to the left thumb, rather than appellant’s right thumb.

2

without providing physical examination findings or impairment rating calculations. Dr. Slutsky
advised that a November 25, 2015 report of Dr. Calandruccio indicated that appellant required
further treatment for his right thumb condition. He requested that he be provided with a medical
report of a physical examination, conducted between November 25, 2015 and March 29, 2016,
which showed that appellant had reached maximum medical improvement (MMI) with respect to
his right thumb condition. Dr. Slutsky indicated that, if such a report was unavailable, then
appellant should undergo a second opinion examination with an orthopedic surgeon who would
apply the standards of the sixth edition of the A.M.A., Guides.
In a June 3, 2016 letter, OWCP requested that Dr. Calandruccio indicate whether
appellant reached MMI with respect to his right thumb condition and, if he had, to provide the
date he reached MMI and to explain the reasoning for his opinion on MMI. It also asked
Dr. Calandruccio to provide an opinion on permanent impairment under the standards of the
sixth edition of the A.M.A., Guides which included a detailed description of the findings upon
which the impairment rating was based.
On June 24, 2016 OWCP received Dr. Calandruccio’s handwritten notations on its
June 3, 2017 letter. Dr. Calandruccio indicated that appellant had reached MMI on February 7,
2016 and that he had five percent whole person impairment based on distal radius fracture, loss
of motion, and radial nerve loss.4
OWCP referred appellant for a second opinion examination with Dr. James Galyon, a
Board-certified orthopedic surgeon, and requested that he provide an opinion on appellant’s
permanent impairment under the standards of the sixth edition of the A.M.A., Guides.
In an August 17, 2016 report, Dr. Galyon described appellant’s history of injury and prior
medical treatment, and detailed his findings of the physical examination he conducted on that
date. He reported that the sutures in appellant’s right thumb were removed approximately eight
days after they were applied on November 24, 2015 and that appellant wore a splint for four-tosix weeks after his accident. Appellant had worked continuously since December 2015, although
at times with difficulty. Dr. Galyon indicated that, upon physical examination, appellant
exhibited loss of sensation in the distal phalanx of his right thumb associated with the radial
nerve. At the interphalangeal joint of his right thumb, appellant could flex to 45 degrees,
whereas he could flex the interphalangeal joint of his uninjured left thumb to 90 degrees. His
pinch strength between thumb and index finger was 15 pounds in the right hand, whereas his
pinch strength in his left hand was 120 pounds.5 With respect to MMI of the right thumb
condition, Dr. Galyon indicated that appellant had achieved all of the recovery that he was going
to have. He believed that the observed nerve injury, which was 10 months old and resulted in
appellant’s right thumb only lacing two or three centimeters to reach its terminal end, would not
improve any further.

4

Dr. Calandruccio indicated that reference should be made to his dictation, but he did not indicate to which
dictation he referred.
5
Appellant’s grip strength in his right hand was 85 pounds, whereas his grip strength in his left hand was 130
pounds.

3

With respect to permanent impairment, Dr. Galyon indicated that, under Table 15-16 on
page 427 of the sixth edition of the A.M.A., Guides, appellant had 10 percent permanent
impairment of his right thumb due to the loss of sensation in the distal phalanx of the thumb
(associated with the radial nerve). He also found that appellant had further permanent
impairment of his right thumb due to loss of thumb strength (associated with the radial nerve).6
Dr. Galyon indicated that, under Table 15-30 on page 468, appellant had 28 percent permanent
impairment of his right thumb due to range of motion (ROM) deficits associated with that thumb.
He found that appellant had total permanent impairment of his right thumb of 48 percent.
Dr. Galyon advised, that using Table 15-11 beginning on page 421, the 48 percent permanent
impairment of appellant’s right thumb converted to 19 percent permanent impairment of his right
hand and 17 percent permanent impairment of his right upper extremity due to his right thumb
condition. He further indicated that he did not believe that surgical reconstruction repair of
appellant’s right thumb was possible.
OWCP requested that Dr. Slutsky again serve in his capacity as an OWCP medical
adviser and review Dr. Galyon’s August 17, 2016 report.
In a report dated October 26, 2016, Dr. Slutsky indicated that appellant had reached MMI
with respect to his right thumb condition on August 17, 2016, the date of Dr. Galyon’s
examination. He noted that appellant’s accepted right thumb condition had stabilized at that
time, with no further treatment planned and no expectation of significant change in the condition.
Dr. Slutsky provided calculations for his opinion that appellant had four percent permanent
impairment of his right thumb under the sixth edition of the A.M.A., Guides. He indicated that,
using the diagnosis-based impairment (DBI) rating method of Table 15-2 (Digit Regional Grid)
beginning on page 391, appellant had a default value of four percent permanent impairment of
his right upper extremity due to his most-impairing diagnosed of right distal phalanx fracture
(class 1). Dr. Slutsky found that appellant had a functional history grade modifier of 1, physical
examination grade modifier of 1, and clinical studies grade modifier of 1, and noted that
application of the Net Adjustment Formula meant that there was no movement from the default
value of four percent on Table 15-2. Therefore, appellant had total permanent impairment of his
right upper extremity of four percent. Dr. Slutsky noted that Dr. Galyon found that appellant had
48 percent permanent impairment of his right thumb (converted to 17 percent permanent
impairment of his right upper extremity) through his application of the sixth edition of the
A.M.A., Guides. He indicated that his rating impairment differed from that of Dr. Galyon
because Dr. Galyon used the ROM impairment rating method, rather than the preferred DBI
rating method that he used.
OWCP determined that there was a conflict in the medical opinion evidence between the
OWCP referral physician, Dr. Galyon, and OWCP’s medical adviser, Dr. Slutksy, regarding the
extent of appellant’s permanent impairment. It referred appellant to Dr. Rommel G. Childress, a
Board-certified orthopedic surgeon, for an impartial medical examination and opinion on the
matter.

6

Dr. Galyon did not provide a specific figure for the extent of this permanent impairment.

4

In a January 20, 2017 report, Dr. Childress discussed appellant’s factual and medical
histories and detailed the findings of the physical examination he conducted on that date. He
indicated that appellant reported that he continued to work, but that he sometimes had to modify
his work methods due to the change in his right-hand grip. Dr. Childress noted that, upon
physical examination of the right thumb, appellant exhibited lessened sensation in his right
thumb, hypersensitivity to pressure over the distal phalanx and metacarpophalangeal joint (which
was mildly swollen), and restricted flexion motion of the interphalangeal joint of his right thumb.
Appellant’s grip strength was “good minus” on the right and “good plus” on the left.
Dr. Childress diagnosed crush injury to the right thumb (with open fracture of distal phalanx),
loss of nail with regrowth of new nail, hypersensitivity of the right thumb (with neuropathic type
pain), and rule out neuroma/minor causalgia (regional pain syndrome).
Dr. Childress further noted that appellant had an active issue with his right thumb that
made unrestricted activities somewhat of a concern when handling very heavy weights and
working at heights. He indicated that appellant had not reached MMI and felt that he had
developed or was developing a symptomatic “neuroma-type situation.” Dr. Childress believed
that appellant needed active management by an attending physician to see if any intervention
would be needed regarding ongoing treatment and work safety issues. He recommended that an
attending physician conduct further examination and testing to see if appellant had a diagnosis of
neuroma. If appellant were confirmed to have a diagnosis of neuroma by an attending hand
surgeon, then any appropriate intervention should be determined by the hand surgeon.
Dr. Childress indicated that, after such treatment was carried out and reasonable functioning was
obtained, the date of MMI and permanent impairment could be assigned.
In a June 9, 2017 decision, OWCP denied appellant’s claim for a schedule award due to
his accepted right thumb injury. It found that the evidence did not show that he had permanent
impairment of a scheduled member because the weight of the medical evidence rested with the
January 20, 2017 report of the impartial medical specialist, Dr. Childress, who found that
appellant had not reached MMI with respect to his right thumb. OWCP indicated that permanent
impairment could not be assessed until appellant reached MMI with respect to his right thumb.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with the Director of OWCP.7 Section 8107 of
FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.8 It, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires

7

See 20 C.F.R. §§ 1.1-1.4.

8

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).

5

5 U.S.C.

the use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.9
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).10 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.11
Permanent impairment may only be rated according to the A.M.A., Guides and only after
MMI has been achieved.12 Under the A.M.A., Guides, impairment should not be considered
permanent until a reasonable time has passed for the healing or recovery to occur and this will
depend on the nature of underlying pathology, as the optimal duration for recovery may vary
considerably from days to months. The clinical findings must indicate that the medical condition
is static and well stabilized for the person to have reached MMI.13 A preliminary element for
considering a schedule award is establishing that the claimant has attained MMI.14 MMI refers
to a date from which further recovery or deterioration is not anticipated, although over time there
may be some expected change. Once impairment has reached MMI, a permanent impairment
rating may be performed.15 The determination of the date of MMI is factual in nature and
depends primarily on the medical evidence.16 The date of MMI is usually considered to be the
date of the medical examination that determined the extent of the impairment.17

9

20 C.F.R. § 10.404. See also, Ronald R. Kraynak, 53 ECAB 130 (2001).

10
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
11

Isidoro Rivera, 12 ECAB 348 (1961).

12

A.M.A., Guides 24 (6th ed. 2009); see Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable
until MMI -- meaning that the physical condition of the injured member of the body has stabilized and will not
improve further -- has been reached).
13

A.M.A., Guides 24.

14

See J.D., Docket No. 12-0481 (issued November 17, 2012).

15

See A.M.A., Guides 20, Table 2-1 (6th ed. 2009); B.C., Docket No. 16-1061 (issued November 8, 2016).

16

J.B., Docket No. 11-1469 (issued February 14, 2012); Franklin L. Armfield, 28 ECAB 445 (1977).

17
Supra note 10 at Chapter 3.700.3.a (January 2010); see Richard Larry Enders, 48 ECAB 184 (1996) (the date
of MMI was the date of the audiologic examination used as the basis of the schedule award).

6

ANALYSIS
The issue on appeal is whether appellant has permanent impairment due to his accepted
right thumb condition, warranting a schedule award.
The Board finds that the case is not in posture for decision.
In a June 9, 2017 decision, OWCP denied appellant’s claim for a schedule award due to
his accepted right thumb injury.18 Based on Dr. Childress’ January 20, 2017 opinion, it found
that appellant had not reached MMI with respect to his accepted right thumb injury.
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.19 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”20 Where OWCP has referred the case to an impartial medical
specialist to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well-reasoned and based upon a proper factual background, must be given special
weight.21
The Board notes that OWCP improperly found that there was a conflict in the medical
opinion evidence regarding appellant’s permanent impairment. In November 2016, OWCP had
advised that it was declaring a conflict in the medical opinion evidence between the August 17,
2016 report of Dr. Galyon, OWCP’s referral physician, and the October 26, 2016 report of
Dr. Slutsky, OWCP’s referral physician. However, under FECA, a conflict in the medical
opinion evidence may only be declared between an OWCP-designated physician and the
employee’s physician. There is no provision for finding a conflict in the medical opinion
evidence between two OWCP-designated physicians.22
The Board notes that there was no probative report of an attending physician which could
have created a conflict in the medical opinion evidence with either the August 17, 2016 report of
Dr. Galyon or the October 26, 2016 report of Dr. Slutsky. In a March 7, 2016 report,
Dr. Calandruccio provided a permanent impairment rating for appellant’s right thumb (converted
to right hand, right upper extremity, and whole person impairments) without discussing physical
examination findings or explaining how the impairment rating calculations were conducted. In
undated notations received on June 24, 2016, he indicated, without elaboration, that appellant
had five percent permanent impairment of his whole person due to his right distal radius fracture,
loss of motion, and radial nerve loss. The Board notes that a schedule award is not payable under
18

OWCP accepted that on November 24, 2015 appellant sustained a displaced fracture of the distal phalanx of his
right thumb. In March 2016, appellant filed a claim for compensation seeking a schedule award due to his accepted
right thumb injury.
19

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

20

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

21

Gary R. Sieber, 46 ECAB 215, 225 (1994).

22

See supra notes 18 and 19.

7

section 8107 of FECA for an impairment of the whole person.23 Dr. Calandruccio’s reports are of
limited probative value with respect to appellant’s permanent impairment because he did not
adequately explain how his impairment ratings were derived under the standards of the sixth
edition of the A.M.A., Guides.24
Due to the lack of a conflict in the medical opinion evidence, Dr. Childress would be
considered an OWCP referral physician.25 As such, his report would not be given special weight
with respect to the matter of MMI based on impartial medical specialist status.26 Although
Dr. Childress provided an opinion on January 20, 2017 that appellant had not reached MMI with
respect to his right thumb condition,27 the Board notes that the record contains two
contemporaneous reports finding that appellant had, in fact, reached MMI. In his August 17,
2016 report, Dr. Galyon determined that appellant had reached MMI with respect to his right
thumb condition by the date of his impairment rating examination, i.e., August 17, 2016.28 In his
October 26, 2016 report, Dr. Slutsky also found that appellant had reached MMI by
August 17, 2016.29 The Board has held that determination of the date of MMI depends primarily
on the medical evidence.30 Herein, the Board finds that the medical evidence of record supports
that appellant had reached MMI as of August 17, 2016.
The Board notes that the two most comprehensive impairment evaluations of record
present differing methods of evaluating permanent impairment, one that incorporated the ROM
impairment rating method and another that solely relied on the DBI rating method. In his
August 17, 2016 report, Dr. Galyon opined that appellant had 48 percent permanent impairment
of his right thumb (which converted to 17 percent permanent impairment of his right upper
extremity) due to ROM, sensory, and strength deficits. In his October 26, 2016 report,
Dr. Slutsky posited that appellant had four percent permanent impairment of his right upper
extremity due to the most-impairing diagnosed condition of distal phalanx fracture.
23

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

24

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment).
25
See e.g., L.Y., Docket No. 16-0012 (issued May 17, 2016) (where an impartial medical specialist was converted
to an OWCP referral physician due to the lack of a conflict in the medical opinion evidence).
26

See supra note 20.

27

Dr. Childress indicated that appellant had not reached MMI with respect to his right thumb condition and felt
that he had developed or was developing a symptomatic “neuroma-type situation.” He indicated that an attending
physician should evaluate whether appellant did, in fact, have a neuroma of his right thumb.
28

Dr. Galyon noted that appellant had achieved all of the recovery of his right thumb condition that he was going
to have. He believed that the observed nerve injury, which was 10 months old and resulted in appellant’s right
thumb only lacking two or three centimeters to reach its terminal end, would not improve any further.
29

Dr. Slutsky indicated that appellant had reached MMI with respect to his right thumb condition on August 17,
2016, the date of Dr. Galyon’s examination. He noted that appellant’s accepted right thumb condition had stabilized
at that time, with no further treatment planned and no expectation of significant change in the condition.
30

See supra note 15.

8

The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.31
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.32 In T.H., the Board concluded that OWCP physicians
were at odds over the proper methodology for rating upper extremity impairment, having
observed attending physicians, evaluating physicians, second opinion physicians, impartial
medical examiners, and district medical advisers use both DBI and ROM methodologies
interchangeably without any consistent basis. Furthermore, the Board observed that physicians
interchangeably cited to language in the first printing or the second printing when justifying use
of either ROM or DBI methodology. Because OWCP’s own physicians were inconsistent in the
application of the A.M.A., Guides, the Board found that OWCP could no longer ensure
consistent results and equal justice under the law for all claimants.33
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the June 9, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied uniformly,
and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for an upper extremity schedule award.34
CONCLUSION
The Board finds that the case is not in posture for decision.

31

T.H., Docket No. 14-0943 (issued November 25, 2016).

32

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

33

Supra note 31.

34

See FECA Bulletin No. 17-06 (May 8, 2017).

9

ORDER
IT IS HEREBY ORDERED THAT the June 9, 2017 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further action
consistent with this decision.
Issued: February 22, 2018
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
McAllen, TX, Employer
__________________________________________

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Appearances:
Jonathan Perkins, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1059
Issued: August 18, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 19, 2017 appellant, through his representative, filed a timely appeal from a
February 21, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from the last OWCP merit decision dated May 9,
2016, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of
this case.

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.

ISSUE
The issue is whether OWCP’s Branch of Hearings and Review properly determined that
appellant abandoned his request for a hearing.
FACTUAL HISTORY
On January 27, 2016 appellant, then a 29-year-old custom and border patrol agent,
filed a traumatic injury claim (Form CA-1) alleging that on January 26, 2016 he was a
passenger in an automobile that was involved in a motor vehicle accident, which caused
whiplash and injuries to his left elbow and low back. He did not immediately stop work.
Appellant submitted duty status reports (Form CA-17) dated February 1 to 22, 2016
from Dr. Kesturkoppal Muralidhara, a Board-certified family practitioner, who diagnosed
lumbar and thoracic strains and advised that appellant could not work. On February 5, 2016
Dr. Muralidhara treated appellant for low back pain. Appellant reported that on January 26,
2016 he was a passenger in a work vehicle that was struck on the side by another work vehicle
while patrolling the border wall. He reported having whiplash and intense stabbing and
shooting back pain. Dr. Muralidhara diagnosed lumbar disc displacement and thoracic strain.
He opined that appellant sustained a work-related thoracic and lumbar injury on January 26,
2016 while he was a passenger in a vehicle that was patrolling the border wall when the
vehicle he was in was struck by another vehicle. Dr. Muralidhara advised that appellant was
taken off of work.
On February 24, 2016 OWCP accepted appellant’s claim for sprain of the ligaments of
the thoracic spine.
On March 18 and April 5, 2016 appellant filed claims for compensation, CA-7 forms,
for leave without pay for the period beginning March 17, 2016.
Appellant was treated by Dr. Muralidhara on April 6, 2016 for middle and low back
pain. He reported being a passenger in a work vehicle that was struck by another vehicle while
patrolling the border wall. Appellant indicated that he experienced whiplash with intense
stabbing and shooting back pain. Dr. Muralidhara noted a February 2, 2016 magnetic
resonance imaging (MRI) scan of the thoracic spine revealed a T10-11 broad-based bulge
effacing the ventral thecal sac. A February 2, 2016 lumbar spine MRI scan revealed L5-S1
right paracentral disc herniation effacing the ventral thecal sac. Dr. Muralidhara’s diagnoses
included thoracic disc bulge and lumbar disc herniation secondary to thoracic strain. He
advised that the work-related trauma caused pain, tenderness, decreased range of motion,
decreased muscle strength, and difficulty with functional mobility. Dr. Muralidhara opined that
appellant was incapacitated for work since March 17, 2016 and that this was supported by
findings and diagnostics. Appellant was currently unable to perform at the physical demand
level required for his position as a border patrol agent. Dr. Muralidhara advised that appellant’s
condition has not improved since his injury.
By decision dated May 9, 2016, OWCP denied appellant’s claim for compensation for
the period beginning March 17, 2016, because the medical evidence of record failed to establish
disability from work due to the January 26, 2016 employment injury.

2

On May 27, 2016 appellant requested a telephone hearing before an OWCP hearing
representative. He submitted reports from Dr. Muralidhara dated March 7 to May 27, 2016,
who diagnosed work-related thoracic and lumbar strain and L5-S1 disc herniation.
Dr. Muralidhara returned appellant to work full time with restrictions.
On January 9, 2017 OWCP notified appellant and his representative that a telephone
hearing would be held on February 6, 2017 a t 9 :00 a .m. ( Eastern Standard Time). It
instructed him to call the provided toll-free number shortly before the hearing time and enter
the pass code to gain access to the conference call. OWCP mailed the January 9, 2017
notice of hearing to the addresses of record for both appellant and his representative.
By decision dated February 21, 2017, OWCP found that appellant had abandoned his
request for a hearing. It determined that he received a written notice of the hearing 30 days
before the scheduled hearing, but did not appear and that he failed to timely explain his absence
from the scheduled hearing.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a
final adverse decision by OWCP is entitled to receive a hearing upon writing to the address
specified in the decision within 30 days of the date of the decision for which a hearing is
sought.3 Unless otherwise directed in writing by the claimant, the hearing representative will
mail a notice of the time and place of the hearing to the claimant and any representative at
least 30 days before the scheduled date.4 OWCP has the burden of proving that it mailed the
claimant a notice of the date and time of the scheduled hearing.5
A claimant who fails to appear at a scheduled hearing may request in writing within
10 days after the date set for the hearing that another hearing be scheduled. Where good
cause for failure to appear is shown, another hearing will be scheduled and conducted by
teleconference. The failure of the claimant to request another hearing within 10 days,
or the failure of the claimant to appear at the second scheduled hearing without good
cause shown, shall constitute abandonment of the request for a hearing. Where good cause
is shown for failure to appear at the second scheduled hearing, review of the matter will
proceed as a review of the written record.6 Where it has been determined that a claimant
has abandoned his or her request for a hearing, OWCP’s Branch of Hearings and Review
will issue a formal decision.7

3

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

4

20 C.F.R. § 10.617(b).

5

Nelson R. Hubbard, 54 ECAB 156, 157 (2002).

6

20 C.F.R. § 10.622(c).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record,
Chapter 2.1601.6(g) (October 2011); see also 20 C.F.R. § 10.622(f).

3

ANALYSIS
The applicable regulations require OWCP to provide at least 30 days advance written
notice of the scheduled hearing date.8 The January 9, 2017 hearing notification indicated that a
telephonic hearing was scheduled for February 6, 2017, which was less than 30 days from the
date of the notice. The Branch of Hearings and Review did not provide appellant at least 30 days
advance notice as mandated. Because the January 9, 2017 hearing notification was insufficient,
the February 21, 2017 decision is set aside and the case is remanded to the Branch of Hearings
and Review in order to schedule another oral hearing.9
CONCLUSION
The Board finds that OWCP’s Branch of Hearings and Review improperly found that
appellant abandoned his requested hearing.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: August 18, 2017
Washington, DC

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

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

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

8

20 C.F.R. § 10.617(b).

9

See R.E., Docket No. 09-2247 (issued May 11, 2010).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
TENNESSEE VALLEY AUTHORITY,
KENSINGTON FOSSIL PLANT, Harriman, TN,
Employer
__________________________________________

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

Docket No. 08-153
Issued: June 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On October 22, 2007 appellant filed a timely appeal from the August 20, 2007 decision
of the Office of Workers’ Compensation Programs denying a claim for greater than 11 percent
hearing loss in the left ear, for which he received a schedule award and a claim for greater than
0 percent hearing loss in the right ear. 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 has more than 11 percent monaural hearing loss in his left
ear, for which he received a schedule award and greater than 0 percent loss in his right ear.
FACTUAL HISTORY
On March 31, 2006 appellant, then 63-year-old retired assistant unit operator, filed an
occupational disease claim, Form CA-2, alleging that his hearing loss was related to exposure to
motor, fan and pump noise in the performance of duty from 1974 to 1999. His last federal
employment noise exposure was on August 1, 1999, when he retired. Along with appellant’s

claim, he provided a written history of his occupational noise exposure, both prior to and at the
employing establishment and audiometric reports from the employing establishment’s hearing
testing program. On February 27, 2006 Dr. R.S. Hellmann, appellant’s primary care physician,
stated that he had never treated appellant for ear or hearing problems.
On June 26, 2006 appellant was referred for a second opinion examination with
Dr. Joseph Motto, a Board-certified otolaryngologist, to determine whether his hearing loss was
related to factors of his federal employment.
On July 19, 2006 Dr. Motto examined appellant and reviewed the medical records
provided by the Office. He stated that an audiogram made near the beginning of appellant’s
federal employment showed an early left ear hearing loss, but that his current hearing loss
exceeded the expected presbycusis losses at all frequencies. Dr. Motto stated that appellant’s
workplace noise exposure was sufficient in intensity and duration to have caused his hearing
loss. On physical examination, he found that appellant’s tympanic membranes were scarred and
retracted, but had good mobility. Dr. Motto diagnosed moderate-to-severe sensorineural hearing
loss related to appellant’s federal employment. Appellant’s audiometric tests results for 500,
1,000, 2,000 and 3,000 cycles per second (cps) showed, respectively, losses of 10, 15, 35 and 55
decibels in the right ear and 10, 15, 55 and 65 decibels in the left ear.
On August 16, 2006 the Office provided Dr. Motto’s report to an Office medical adviser
for determination of appellant’s entitlement to a schedule award. On August 23, 2006 Dr. A.E.
Anderson stated that appellant worked for the employing establishment from April 1973 to
August 1999. He noted that the last employment audiogram, conducted May 4, 1999, coincided
closely with appellant’s last date of noise exposure. Dr. Anderson pointed out that “[noiseinduced hearing loss] does not progress after removal from hazardous noise.” The 1999
audiogram, performed by Dolores Leffew, a registered nurse with the employing establishment,
measured average losses for speech, high frequency and low frequency hearing. Dr. Anderson
found that the 1999 audiogram was the most accurate measure of appellant’s degree of
employment-related hearing loss. He noted that the audiogram showed losses of 10, 10, 35 and
35 decibels for the right ear and 10, 15, 50 and 55 decibels for the left ear, respectively, for the
frequencies of 500, 1,000, 2,000 and 3,000 cps. Dr. Anderson found that the date of maximum
medical improvement was May 4, 1999. He found 11 percent monaural hearing loss in the left
ear and 0 percent hearing loss in the right. Dr. Anderson recommended hearing aids.
On August 21, 2006 the employing establishment submitted noise dosimetry monitoring
data for employees who held the position of assistant unit operator from 1975 to 1992. It stated
that appellant would likely have been exposed to an eight-hour time weighted average of 87.49
decibels while working in that position. The employing establishment also provided an injury
report from May 23, 1986, when an explosion of a supply valve caused appellant’s right ear to
ring.
By decision dated August 31, 2006, the Office accepted appellant’s claim for bilateral
hearing loss. On September 20, 2006 appellant filed a claim for a schedule award.

2

By decision dated January 16, 2007, the Office granted appellant a schedule award for 11
percent hearing loss in his left ear. The award compensated appellant for 5.72 weeks, from
May 4 to June 13, 1999. The date of maximum medical improvement was listed as May 4, 1999.
On February 26, 2007 appellant requested reconsideration of the August 31, 2006
decision. He stated that he still had a hard time hearing, even with his hearing aids.
On March 2, 2007 the Office notified appellant that it was not clear which decision he
was appealing. It stated that no further action would be taken on his letter until clarification was
received.
By decision dated March 7, 2007, the Office issued an amended schedule award,
superseding the January 16, 2007 decision. The amended award stated that appellant had
0 percent hearing loss in his right ear and 11 percent monaural, left ear, hearing loss.
On June 27, 2007 appellant requested reconsideration of his claim. He stated that he was
having more difficulty understanding people when they talked and heard a continual ringing in
his ears. Appellant requested compensation for all the time he had loss of hearing, not only the
five weeks for which he received payment. He submitted an October 3, 2006 audiogram
conducted by Elisha Arnett, who helped fit him for hearing aids.
On August 9, 2007 the Office provided the record to another Office medical adviser,
Dr. Eric Puestow, a Board-certified internist, for an explanation of which audiogram was the
correct basis for appellant’s schedule award. On August 10, 2007 Dr. Puestow found that
Dr. Anderson correctly stated that hearing loss due to noise exposure does not progress after the
exposure ends. He noted that appellant stopped working in August 1999, at which time his most
recent audiogram indicated that he had 11 percent hearing loss in his left ear. Dr. Puestow
calculated that appellant’s hearing loss had increased to seven percent binaural hearing loss by
the time he was examined by Dr. Motto on July 19, 2006. For these reasons, he opined that
Dr. Anderson’s August 23, 2006 report was the correct measure of employment-related hearing
loss and should be adopted.
By decision dated August 20, 2007, the Office denied modification of the March 7, 2007
schedule award. It found that there was no rationale for using the more current audiogram
because it included hearing loss that was not related to appellant’s employment and thus not
compensable.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of scheduled members or functions of
the body.2 The Act provides for 52 weeks of compensation for total loss of hearing in one ear

1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

3

and 200 weeks for total loss of hearing in both ears.3
compensated at a proportionate rate.4

Any loss less than a total loss is

The Act does not specify the manner in which the percentage of loss is to be determined
for the purposes of schedule awards. 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 American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.5 Therefore, the Office evaluates industrial hearing loss in accordance with the standards
contained in the A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the
losses at each frequency are added up and averaged.7 Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.8 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.10 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.11
ANALYSIS
The Office granted appellant a schedule award for an employment-related permanent
impairment. The issue to be determined is whether he has established hearing loss greater than
11 percent in his left ear, for which he received a schedule award and 0 percent in his right ear.
On June 26, 2006 the Office referred appellant to Dr. Motto, a Board-certified
otolaryngologist, for a second opinion on the cause of his hearing loss. Dr. Motto stated that
appellant’s hearing loss exceeded the expected presbycusis losses at all frequencies. Noting that
appellant’s workplace noise exposure was sufficient to have caused hearing loss, he opined that
appellant’s moderate-to-severe sensorineural hearing loss was related to his federal employment.
3

5 U.S.C. § 8107(c)(13).

4

5 U.S.C. § 8107(c)(19); David W. Ferrall, 56 ECAB 362 (2005).

5

20 C.F.R. § 10.404.

6

A.M.A., Guides 246-51 (5th ed. 2001).

7

Id.

8

Id.

9

Id.

10

Id.

11

Donald Stockstad, 53 ECAB 301 (2002), petition for recon., granted (modifying prior decision) Docket No. 011570 (issued August 13, 2002).

4

The attached audiometric test results showed, respectively, losses of 10, 15, 35 and 55 decibels
in the right ear and 10, 15, 55 and 65 decibels in the left ear for 500, 1,000, 2,000 and 3,000 cps.
Based on Dr. Motto’s opinion, the Office properly accepted appellant’s claim for bilateral
hearing loss.
In order to make a determination on appellant’s entitlement to a schedule award, the
Office submitted his case to Dr. Anderson, an Office medical adviser, who found that an
audiogram conducted by the employing establishment in May 1999 was the most accurate gauge
of appellant’s employment-related hearing loss because it was made near the date of his last
exposure to employment noise. Dr. Anderson noted that noise-related hearing loss did not
worsen after noise exposure ended. He added the right ear decibel losses recorded at 500, 1,000,
2,000 and 3,000 cps, which were 10, 10, 35 and 35 decibels, respectively, for a total loss of
90 decibels. When divided by 4, the result was an average hearing loss of 22.5 decibels. The
average loss was then reduced by the “fence” of 25 decibels to equal 0, which, when multiplied
by the established factor of 1.5 resulted in 0 percent monaural hearing loss for the right ear.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed
leveled losses of 10, 15, 50 and 55 decibels, respectively, for a total of 130 decibels. When
divided by 4, the result was an average hearing loss of 32.5 decibels. The average loss was then
reduced by the “fence” of 25 decibels to equal 7.5, which, when multiplied by the established
factor of 1.5 resulted in 11.25 percent monaural hearing loss for the left ear. Dr. Anderson
properly rounded the percentage loss and opined that appellant to a schedule award for
11 percent hearing loss in his left ear and 0 percent loss in his right ear. The Board finds that the
Office properly issued a schedule award on the basis of Dr. Anderson’s opinion.
After appellant requested reconsideration, the Office provided his file to Dr. Puestow, a
Board-certified internist, acting as an Office medical adviser, for an opinion on which audiogram
should form the basis of the schedule award. Dr. Puestow concurred with Dr. Anderson’s
finding that the 1999 audiogram was the most accurate for purposes of a schedule award because
the increases in hearing loss appellant incurred after that time were not employment related. He
therefore opined that Dr. Anderson’s August 23, 2006 report was correct and should be adopted.
The Board finds that the Office correctly denied appellant’s request for an increased schedule
award based on Dr. Puestow’s medical opinion.
The Board notes that, along with this request for reconsideration, appellant submitted an
audiogram prepared in conjunction with his hearing aid fitting. The audiogram provided a
measure of appellant’s hearing loss, but contained no rationalized opinion on whether the loss
was caused by appellant’s employment. Medical reports not containing rationale on causal
relation are entitled to little probative value and are generally insufficient to meet an employee’s
burden of proof.12 The Board therefore finds that the opinions of Dr. Puestow and Dr. Anderson
carry the weight of the medical opinion evidence.

12

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

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CONCLUSION
The Board finds that appellant has no more than 11 percent monaural hearing loss in his
left ear for which he received a schedule award and no ratable hearing loss in his right ear.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 20 and March 7, 2007 are affirmed.
Issued: June 19, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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