United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
BROOKLYN SOCIAL SECURITY CARD
CENTER, Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0440
Issued: August 24, 2018

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 December 27, 2017 appellant filed a timely appeal from a December 5, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision, dated December 22, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3 the Board lacks jurisdiction over the merits of the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2
Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). After exercising its discretion
the Board, by order dated April 20, 2018, denied her request noting that her arguments on appeal could be adequately
addressed in a Board decision based on a review of the case record. Order Denying Request for Oral Argument,
Docket No. 18-0440 (issued April 20, 2018).

FACTUAL HISTORY
On May 27, 2016 appellant, then a 64-year-old service representative, filed a traumatic
injury claim (Form CA-1) alleging that she developed post-traumatic stress disorder (PTSD) on
April 18, 2016 while in the performance of duty. In an April 18, 2016 statement, she described
the events of April 18, 2016 regarding her difficulties with a customer. Appellant noted that the
customer requested a letter immediately, and responded aggressively when she informed him that
she would mail a letter to him. The customer stared at the cross appellant was wearing and accused
appellant of being a racist. Appellant immediately pulled down the shade and rang for the guard.
When the guard did not appear, she rang the panic button for the first time in her 30-year career.
Appellant felt threatened not only by the customer’s words, but also his tone. Her supervisor, L.Z.
responded to appellant’s use of the panic button by reprimanding her. Appellant noted that she
experienced a two-hour period of stupor during which time she was shaking and fearful.
Appellant submitted a treatment note dated April 28, 2016 from Dr. Paul W. Maravel, an
internist, indicating that he treated appellant for anxiety related to a work incident on
April 18, 2016.
The employing establishment provided appellant with an authorization for examination
and/or treatment (Form CA-16). Dr. Maravel completed this form on May 20, 2016 and indicated
that appellant was verbally abused and felt threatened by a customer while at work. He diagnosed
anxiety and indicated by checking a box marked “yes” that appellant’s condition was caused or
aggravated by the employment activity described.
In a July 1, 2016 development letter, OWCP requested that appellant provide additional
factual and medical evidence in support of her traumatic emotional condition claim. It afforded
her 30 days for a response. Dr. Maravel completed notes on May 5, June 9, and July 8, 2016 and
diagnosed continuing anxiety episodes with feelings of anger.
Appellant provided a narrative statement describing the events of April 18, 2016. She
noted that a male customer requested a social security card, but did not have the appropriate
documentation. When appellant informed him that he could not have his card, he repeatedly
slammed the window ledge with his hand. The customer also put his head as close as he could to
the glass and shouted at appellant. Appellant was frightened by his actions. The customer left
momentarily, but quickly returned to appellant’s window and informed appellant that the guard
had told him that he should get a receipt. Appellant disagreed that the receipt was appropriate.
The customer then screamed at appellant and noticing her cross necklace, shouted that she was a
racist. Appellant telephoned the guard for assistance. The guard did not appear and the customer
continued to scream. Appellant then pushed the panic button and the guard came to her assistance.
The guard directed the customer to calm down, but he continued to scream. Appellant’s
supervisor, L.Z., appeared after five minutes, instructed the customer to calm down, and the guard
escorted him out. L.Z. asked why appellant did not call right away and instructed her to take a
break.
By decision dated August 4, 2016, OWCP accepted that the April 18, 2016 event was a
compensable factor of employment, but denied appellant’s claim, finding that the medical
evidence submitted was insufficient to establish causal relationship between her diagnosed
condition of anxiety and the April 18, 2016 employment factor.
2

Appellant requested an oral hearing before an OWCP hearing representative on
August 19, 2016. She also provided additional evidence. Appellant provided notes dated July 29
and August 18, 2016 from Dr. Maravel again diagnosing episodes of anxiety and anger to the
work-related incident. She also provided a note dated August 31, 2016, from Kenneth Redden, a
licensed clinical social worker, who diagnosed disability, trauma, and anxiety.3
Appellant testified at the oral hearing before OWCP’s hearing representative on
November 16, 2016. She noted that she had returned to full duty. In a note dated December 22,
2016, Dr. Nabil Rezk, a psychiatrist, diagnosed major depressive disorder.
By decision dated December 22, 2016, OWCP’s hearing representative denied appellant’s
claim, finding that she failed to submit medical opinion evidence establishing causal relationship
between her diagnosed emotional conditions and the April 18, 2016 work incident from an
appropriate physician.
Appellant provided additional medical evidence including a February 7, 2017 note from
Dr. Maravel diagnosing anxiety and depression and indicating that appellant did not have a history
of anxiety or depression prior to her work-related incident on April 18, 2016. Progress notes from
Dr. Rezk were received which indicated that he had examined appellant on November 22, 2016,
January 5 and 26, February 16, and March 16, 2017. Appellant also resubmitted the December 22,
2016 note from Dr. Rezk.
On September 11, 2017 appellant requested reconsideration.
By decision dated December 5, 2017, OWCP denied appellant’s request for
reconsideration. It noted that as Dr. Maravel was not a psychologist, nor a psychiatrist his opinion
could not establish whether appellant’s emotional condition was causally related to the work
incident.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that to be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 To require OWCP to reopen

3

Social workers are not considered physicians as defined under FECA; therefore, their opinions are of no probative
value. The Board has held that medical evidence must be from a qualified physician, and that a social worker is not
a physician as defined under FECA such that an opinion from a social worker is of no probative medical value. See
5 U.S.C. § 8101(2) (defines the term physician); R.W., Docket No. 17-1542 (issued February 1, 2018); David P.
Sawchuck, 57 ECAB 316, 320 n.11 (2006).
4
This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a).

3

a case for merit review under section 8128(a) of FECA,7 OWCP’s regulations provide that the
evidence or argument submitted by a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously considered
by OWCP; or (3) constitute relevant and pertinent new evidence not previously considered by
OWCP.8 When a claimant fails to meet one of the above standards, OWCP will deny the
application for review without reopening the case for a review on the merits.9
The submission of evidence which repeats or duplicates evidence already in the case
record and that the submission of evidence which does not address the particular issue involved
does not constitute a basis for reopening a case.11
10

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim.
OWCP issued a decision on December 22, 2016 denying appellant’s claim as she failed to
submit medical opinion evidence establishing a causal relationship between her diagnosed
emotional conditions and the accepted April 18, 2016 work incident. The underlying issue is
therefore causal relationship.
In her September 11, 2017 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a relevant legal argument not
previously considered by OWCP. Thus, she is not entitled to a review of the merits of her claim
based on the first and second above-noted requirements under section 10.606(b)(3).
In support of her September 11, 2017 reconsideration request, appellant resubmitted the
submitted series of notes from Dr. Rezk, a psychiatrist, indicating that he examined appellant on
November 22, 2016, January 5 and 26, February 16, and March 16, 2017. While Dr. Rezk
practices as a psychiatrist, he did not provide medical evidence which was relevant or pertinent to
the issue on reconsideration, which was whether appellant had established a causal relationship
between her diagnosed emotional condition of major depressive disorder and her April 18, 2016
employment incident. As noted above, the submission of evidence or argument which does not
address the particular issue involved does not constitute a basis for reopening a case.12

7
5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.
8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.608(b).

10
T.H., Docket Nos. 17-1578 & 17-1651 (issued April 26, 2018); M.D., Docket No. 17-1250 (issued April 24,
2018); Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).
11

T.H., M.D., id.; Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

12

Id.

4

Appellant also resubmitted the December 22, 2016 note from Dr. Rezk which is largely
cumulative of his prior reports. The Board has held that newly submitted evidence which is
repetitive or duplicative of evidence existing in the record is insufficient to warrant further merit
review.13 Therefore this report does not constitute a basis to reopen appellant’s case for review of
the merits.
Finally, appellant submitted a February 7, 2017 note from Dr. Maravel diagnosing anxiety
and depression and indicating that appellant did not have a history of anxiety or depression prior
to her work-related incident on April 18, 2016. This opinion is substantially similar to, and
cumulative of the opinions he offered in his previous reports, and still does not explain how
appellant’s April 18, 2016 employment incident caused the diagnosed conditions.14 The Board
finds therefore that Dr. Maravel’s February 7, 2017 note was not relevant and pertinent new
evidence to the basis of the denial of her emotional condition claim. A claimant may be entitled
to a merit review by submitting relevant and pertinent new evidence, but appellant did not submit
any such evidence and thus, she failed to satisfy the third requirement under section 10.606(b)(3).
The Board accordingly finds that appellant was not entitled to a merit review of the claim.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of law,
advance a relevant legal argument not previously considered by OWCP, or constitute relevant and
pertinent new evidence not previously considered by OWCP. Pursuant to 20 C.F.R.
§ 10.606(b)(3), OWCP properly denied merit review.15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

13

T.H., M.D., supra note 10; A.L., Docket No. 08-1730 (issued March 16, 2009).

14

See N.M., Docket No. 18-0354 (issued July 2, 2018).

15

OWCP had already considered the reports of Dr. Maravel and determined that they were insufficient to establish
appellant’s claim for an April 18, 2016 employment injury. Although the Board does not have jurisdiction over the
merits of appellant’s claim, it should be noted that appellant submitted a Form CA-16 completed by Dr. Maravel on
May 20, 2016. Where an employing establishment properly executes a Form CA-16 authorizing medical treatment
related to a claim for a work injury, the form creates a contractual obligation, which does not involve the employee
directly, to pay for the cost of the examination/treatment regardless of the action taken on the claim. See N.B., Docket
No. 17-0927 (issued April 18, 2018); Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is
authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See
20 C.F.R. § 10.300(c).

5

ORDER
IT IS HEREBY ORDERED THAT the December 5, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2018
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Juan, PR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-126
Issued: February 3, 2014

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 22, 2012 appellant, through his attorney, filed a timely appeal of a
September 26, 2012 decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for traumatic injuries and an emotional condition. 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 has established that he sustained traumatic head,
neck, back, shoulder and leg injuries due to an accepted March 12, 2010 incident; and
(2) whether appellant has established that he sustained an emotional condition in the
performance of duty on March 12, 2010.
On appeal, appellant’s counsel contends that OWCP’s September 26, 2012 decision is
“contrary to fact and law.”
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 25, 2010 appellant, then a 42-year-old letter carrier, filed a traumatic injury
(Form CA-1) claiming that he sustained an emotional condition and unspecified physical injuries
when he leaned far back in his postal vehicle.2 In a March 12, 2010 note, a provider whose name
is illegible noted that appellant had been seen that day for a diagnosis of adjustment disorder
with anxiety.
In an April 14, 2010 letter, OWCP advised appellant of the type of additional evidence
needed to establish his claim, including a detailed statement from his attending physician
explaining how and why the identified work factors would cause the claimed injuries. It noted
that some of the evidence he submitted was not legible. Appellant was afforded 30 days in
which to submit such evidence. In response, he submitted a March 29, 2010 note from
Dr. Reinaldo E. Kianes, an attending psychiatrist, noting that appellant had an appointment with
him that day.
By decision dated May 19, 2010, OWCP denied appellant’s claim on the grounds that
fact of injury was not established. It found that he did not explain how he was injured.
In a June 1, 2010 letter, appellant requested an oral hearing, later changed to a review of
the written record. He submitted a legible copy of the March 25, 2010 claim form and a
November 17, 2010 statement, explaining that on March 12, 2010 while delivering mail a car
stopped in front of his postal vehicle and began exchanging gunfire with a car adjacent to
appellant’s vehicle. A bullet shattered appellant’s driver’s side window on the right side of the
vehicle. Glass from the shattered window struck his face and body. Appellant threw himself
backward forcefully in his seat, put his vehicle in reverse and almost crashed into a fence. He
asserted that he injured his head, neck, back, left shoulder and legs. Appellant also submitted
police reports confirming the March 12, 2010 shooting incident.
Appellant submitted a March 12, 2010 emergency room report, noting his presence at a
shooting while at work that day. His supervisor accompanied him to the hospital. In an
Emergency Room form, a Dr. Medina noted that the right side window of appellant’s postal
vehicle was shot out and that shards of glass sprayed his face and body. He diagnosed an
emotional reaction and prescribed medication.
Dr. Luis E. Faura Clavell, an attending physiatrist, provided March 19 and May 31, 2010
reports, diagnosing a left shoulder injury, acute cervicodorsal and lumbosacral muscle sprains
and an aggravation and exacerbation of preexisting cervical and lumbosacral radiculopathy. He
held appellant off work through June 19, 2010 and prescribed medication.
In a May 27, 2010 report, Dr. Kianes, a psychiatrist, held appellant off work from
May 31 to June 17, 2010 due to an emotional condition. On October 25, 2010 he diagnosed
post-traumatic stress disorder and generalized anxiety disorder and listed several prescribed
medications. Dr. Kianes noted that, prior to the March 12, 2010 incident, he had treated
appellant since 1997 for post-traumatic stress disorder and generalized anxiety disorder. In a
2

The scanned claim form is largely illegible.

2

November 1, 2010 note, he stated that appellant had been disabled for work since September 27,
2010 due to an emotional condition. Appellant was “involved in a traumatic incident while at
work (March 12, 2010), which worsened his emotional condition.” Dr. Kianes recommended
voluntary psychiatric hospitalization.
In a March 31, 2010 note, Dr. Felipe Fontanez Sullivan, an attending orthopedic surgeon,
held appellant off work from March 31 to May 31, 2010. Appellant returned to work
intermittently from mid-May through September 27, 2010, again stopped work and did not
return.3
By decision dated December 29, 2010, an OWCP hearing representative vacated the
May 19, 2010 decision and remanded the case for further development of the factual and medical
evidence. After a review of the evidence, by decision dated May 25, 2011, OWCP accepted that
the March 12, 2010 shooting incident occurred in the performance of duty at the time, place and
in the manner alleged. However, it denied the claim on the grounds that causal relationship was
not established. OWCP found that the medical evidence did not contain sufficient explanation of
how the accepted employment factor would cause the claimed emotional condition and physical
injuries.
In a June 23, 2011 letter, counsel requested a telephonic hearing. By decision dated
January 4, 2012, an OWCP hearing representative found that the case was not in posture for a
hearing as OWCP had not obtained a translation of the medical evidence prior to adjudicating the
claim. On remand, OWCP obtained a translation of the medical evidence. Appellant submitted
March 31, April 29 and June 24, 2010 appointment slips.
By decision dated May 1, 2012, OWCP denied the claim on the grounds that causal
relationship was not established. It found that the medical evidence did not explain how and
why the March 12, 2010 shooting would cause the claimed emotional condition and physical
injuries.
In a May 8, 2012 letter, counsel requested a telephonic hearing, which was held on
August 6, 2012.4 At the hearing, he reiterated appellant’s account of the March 12, 2010
shooting. Following the hearing, counsel submitted an August 20, 2012 report from Dr. Kianes,
noting that appellant had been under psychiatric treatment from 1997 to September 17, 2008.
Dr. Kianes noted that on March 29, 2010 examination appellant described a March 12, 2010
shooting incident, when occupants of two vehicles adjacent to his postal vehicle exchanged
gunfire, shattering his right door window. Appellant complained of “sleep disturbances,
nightmares, anxiousness, body and neck pain.” With treatment and medication, he was able to
return to work from May 27 to September 27, 2010, when he stopped work due to increased
symptoms. Appellant had a psychiatric hospitalization in September 2011 and was granted
3

On January 11, 2011 appellant claimed a recurrence of total disability commencing September 27, 2010. As the
claim was not accepted, OWCP did not conduct separate development on the recurrence claim.
4

Appellant and a human resources specialist with the employer submitted statements explaining that they tried to
call into the telephonic hearing but could not establish a connection. The employer requested that the hearing be
rescheduled.

3

Social Security disability benefits in 2011. On examination, Dr. Kianes noted anxious mood,
pressured speech, restless leg movements and irritability. He diagnosed post-traumatic stress
disorder with depressive features, aggravated by the March 12, 2010 incident. Dr. Kianes opined
that appellant was totally and permanently disabled from gainful employment.5
By decision dated and finalized September 26, 2012, an OWCP hearing representative
denied appellant’s claim on the grounds that causal relationship was not established. The
hearing representative found that Dr. Kianes did not explain how and why the shooting incident
would cause or aggravate appellant’s post-traumatic stress disorder.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.8
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.9

5

Appellant also submitted photographs of his postal vehicle showing a shattered driver’s side window and
smudges across the back of his uniform shirt. (Physical evidence in envelope attached to docket file, not imaged
into case record).
6

Joe D. Cameron, 41 ECAB 153 (1989).

7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

8

Gary J. Watling, 52 ECAB 278 (2001).

9

Deborah L. Beatty, 54 ECAB 340 (2003).

4

ANALYSIS -- ISSUE 1
Appellant claimed that he sustained neck, left shoulder, back and leg injuries in the
performance of duty on March 12, 2010 when the occupants of two vehicles adjacent to his
delivery vehicle exchanged gunfire, shattering his driver’s side window. In a May 25, 2011
decision, OWCP accepted the March 12, 2010 incident as factual. However, it denied the claim
on the grounds that causal relationship was not established. Pursuant to a June 23, 2011 and
May 8, 2010 hearing requests, OWCP affirmed its denial by decisions dated May 1 and
September 26, 2012.
Appellant submitted March 19 and May 31, 2010 reports from Dr. Clavell, an attending
physiatrist, diagnosing a left shoulder injury, paraspinal sprains and an exacerbation of
preexisting cervical and lumbosacral radiculopathy. Dr. Sullivan, an attending orthopedic
surgeon, held appellant off work from March 31 to May 31, 2010. However, neither physician
attributed the diagnosed injuries or a period of disability to the accepted March 12, 2010
shooting incident. Therefore, their opinions are insufficient to meet appellant’s burden of
proof.10
The Board notes that OWCP advised appellant in an April 14, 2010 letter of the need to
submit a report from his attending physician setting forth the specific cause of the claimed
injuries and medical reasoning explaining how that incident would cause those injuries.
However, appellant did not submit such evidence. He failed to meet his burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Where disability results from an employee’s reaction to his or her regular or specially
assigned duties or to a requirement imposed by the employment, the disability comes within the
coverage of FECA.11 To establish entitlement to benefits, a claimant must establish a factual
basis for the claim by supporting the allegations with probative and reliable evidence.12 This
burden includes the submission of a detailed description of the employment factors or conditions,
which appellant believes caused or adversely affected the condition or conditions for which
compensation is claimed.13
In cases involving emotional conditions, the Board has held that when working
conditions are alleged as factors in causing disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed
compensable factors of employment and are to be considered by a physician when providing an
opinion on causal relationship.14 If a claimant implicates a factor of employment, OWCP should
10

Id.

11

5 U.S.C. §§ 8101-8193. Lillian Cutler, 28 ECAB 125 (1976).

12

Ruthie M. Evans, 41 ECAB 416 (1990).

13

Effie O. Morris, 44 ECAB 470 (1993).

14

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

5

then determine whether the evidence of record substantiates that factor. When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, OWCP must base its decision on an analysis of the medical evidence.15
ANALYSIS -- ISSUE 2
Appellant claimed that he sustained post-traumatic stress disorder and generalized
anxiety disorder due to the March 12, 2010 shooting incident. In a May 25, 2011 decision,
OWCP accepted the March 12, 2010 incident as factual. Appellant has established a
compensable factor of employment in this regard.16 However, OWCP denied the claim on
May 25, 2011 and May 1 and September 26, 2012 on the grounds that causal relationship was
not established. As appellant established a compensable factor of employment, the Board will
review the medical evidence to determine if he has met his burden of proof in establishing causal
relationship.
In support of his emotional condition claim, appellant submitted a March 12, 2010
emergency room report from a Dr. Medina, noting the shooting incident earlier that day.
Dr. Medina diagnosed an emotional reaction and prescribed medication. However, he did not
provide a definite diagnosis or explain how and why the shooting incident would cause an
emotional condition. Dr. Medina’s opinion is therefore insufficient to establish causal
relationship.17 Appellant also provided reports dated from March 29, 2010 to August 20, 2012
from Dr. Kianes, an attending psychiatrist, who treated appellant previously for post-traumatic
stress disorder with generalized anxiety disorder from 1997 through September 2008.
Dr. Kianes opined that the March 12, 2010 shooting incident worsened and aggravated
preexisting post-traumatic stress disorder and generalized anxiety disorder, permanently
disabling appellant for work from September 27, 2010 onward. However, he did not provide a
clear history of the preexisting conditions or set forth his reasons explaining why the March 12,
2010 incident would worsen or aggravate those conditions. In the absence of such rationale,
Dr. Kianes’ opinion is insufficient to meet appellant’s burden of proof in establishing causal
relationship in this case.18
On appeal, appellant asserts that OWCP’s September 26, 2012 decision was “contrary to
fact and law.” As stated above, the medical evidence does not contain a sufficient explanation of
causal relationship to meet his burden of proof for either the physical or psychiatric claims.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

15

Marlon Vera, 54 ECAB 834 (2003).

16

L.H., Docket No. 10-1717 (issued May 24, 2011).

17

Deborah L. Beatty, supra note 9.

18

Id.

6

CONCLUSION
The Board finds that appellant has not established that he sustained physical injuries or an
emotional condition in the performance of duty as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 26, 2012 is affirmed.
Issued: February 3, 2014
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Lakewood, CO,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Gregory A. Hall, Esq., for the appellant
No appearance, for the Director

Docket No. 10-1308
Issued: September 15, 2011

Oral Argument September 14, 2010

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

JURISDICTION
On April 9, 2010 appellant through his attorney filed a timely appeal of the October 14,
2009 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective April 29, 2005.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on two occasions.2 The facts and history
surrounding the appeals are hereinafter set forth. On September 15, 2000 appellant, then a
52-year-old attorney adviser, filed an occupational disease claim, alleging that he developed an
emotional condition due to factors of his federal employment. OWCP accepted his claim for
temporarily aggravated anxiety reaction. It found a conflict of medical opinion evidence
between appellant’s attending physician, Dr. John Alston, a Board-certified psychiatrist, who
opined that appellant’s underlying conditions of anxiety, bipolar disorder and substance abuse
were aggravated by his employment duties and left him able to work four hours a day with
restrictions gradually increasing to eight hours and Dr. Kenneth H. Ash, a Board-certified
psychiatrist and second opinion physician, who likewise found that appellant’s underlying
conditions were aggravated by his employment and that he could return to work with restrictions
for eight hours a day. OWCP determined that there was a conflict of medical opinion and
referred him for an impartial medical examination on October 7, 2003 with Dr. Bert Furmansky,
a Board-certified psychiatrist, of professorial rank. The record contains documentation that it
bypassed Dr. Laura J. Klein, Dr. Randolph W. Pock, Dr. Zane S. Sundell, Dr. Susan Bograd, and
Dr. Mark H. Stone, before selecting Dr. Furmansky.
Dr. Furmansky completed a report on November 18, 2003 diagnosing bipolar disorder,
generalized anxiety disorder and compulsive personality traits. He stated that appellant’s
nonwork-related diagnoses caused him to be unable to perform the essential functions of his
employment and opined that his job functions did not cause aggravate, precipitate or accelerate
his chronic conditions of bipolar disorder, anxiety or polysubstance abuse. Dr. Furmansky stated
that appellant was not totally disabled and that his chronic anxiety with litigating was not work
related. He completed a work capacity evaluation and opined that appellant could work eight
hours a day. OWCP terminated appellant’s medical and wage-loss benefits effective
February 12, 2004. Appellant requested an oral hearing and by decision dated August 20, 2004,
the Branch of Hearings and Review found that, at the time of the referral to Dr. Furmansky, there
was no medical conflict in record.
The hearing representative further found that
Dr. Furmansky’s report created a conflict with Dr. Alston and remanded for OWCP to resolve
this conflict.
On remand, OWCP referred appellant for an impartial medical examination by
Dr. Howard J. Entin, a Board-certified psychiatrist, to resolve the conflict between Drs. Alston
and Furmansky. The record contains a document entitled Physicians’ Directory System (PDS)
Appointment Schedule for this examination. In a letter dated October 20, 2004, appellant’s
attorney requested that OWCP provide all evidence demonstrating that Dr. Entin was
appropriately selected to serve as the impartial medical examiner. On November 15, 2004
OWCP purported to provide appellant with a document showing that Dr. Entin was selected
through the PDS. There was no documentation associated with this letter in the record.

2

The Board issued orders remanding the case on June 8, 2007 and December 22, 2008; Docket No. 08-2439
(issued December 22, 2008); and Docket No. 06-1779 (issued June 8, 2007).

2

Dr. Entin completed a report dated November 17, 2004 diagnosing bipolar disorder,
alcohol and marijuana abuse and dependence in remission, possible post-traumatic stress
disorder and generalized anxiety disorder. He opined that performing the regular duties of
appellant’s position did temporarily aggravate a number of his preexisting psychological
conditions. Dr. Entin stated that the temporary aggravation ceased within one year of appellant’s
last exposure in 2000 and that his current treatment was not related to his work experiences, but
due to his preexisting psychiatric conditions. He opined that appellant had no employmentrelated residuals, but did have residuals related to his underlying preexisting psychiatric
disorders. OWCP proposed to terminate appellant’s compensation and medical benefits on
March 28, 2005 and finalized this decision on April 29, 2005. Appellant requested an oral
hearing and alleged that Dr. Entin was not properly selected through the PDS. By decision dated
April 17, 2006, the Branch of Hearings and Review affirmed OWCP’s April 29, 2005
termination decision, finding that there was evidence in the file that OWCP utilized the PDS in
selecting Dr. Entin. The Board reviewed this decision on June 8, 2007 and found that the record
did not include evidence that the PDS was utilized and remanded the case for reassemblage and
an appropriate decision.3
In a decision dated August 3, 2007, OWCP detailed the procedures to appropriately select
an impartial medical examiner. It stated that Dr. Entin was appropriately selected and included
documentation that on October 6 and 7, 2003 three physicians were bypassed, Drs. Pock, Stone
and Sundell.4 The reasons for the bypasses were not provided. OWCP reissued the August 3,
2007 decision on October 1, 2007 on the grounds that all appeal rights were not included.
Appellant, through his attorney requested an oral hearing on October 30, 2007. By decision
dated June 12, 2008, the Branch of Hearings and Review affirmed OWCP’s October 1, 2007
decision that Dr. Entin was appropriately selected. Appellant appealed this decision to the Board
and on December 22, 2008 the Board found that the case was in an interlocutory posture as
OWCP had not issued a final decision regarding his compensation and medical benefits.5 The
facts and circumstances of the case as set out in the Board’s prior decisions are adopted herein by
reference.
By decision dated March 6, 2009, OWCP conducted a merit review and determined that
appellant’s claim for medical and wage-loss benefits was appropriately terminated. Appellant,
through his attorney, requested an oral hearing. By decision dated October 14, 2009, the hearing
representative found that OWCP met its burden of proof to terminate his compensation and
medical benefits effective April 29, 2005 as Dr. Entin was correctly selected as the impartial
medical examiner through the PDS and as his report was sufficiently detailed and rationalized to
meet OWCP’s burden of proof.

3

Docket No. 06-1779 (issued June 8, 2007).

4

The Board notes that Drs. Pock, Stone and Sundell were the physicians bypassed in the selection of
Dr. Furmansky as an impartial medical examiner in 2003.
5

Docket No. 08-2439 (issued December 22, 2008).

3

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.6 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.7 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.8 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition, which require further medical treatment.9
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.10 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.11
ANALYSIS
Appellant’s attending physician, Dr. Alston, and OWCP’s second opinion physician,
Dr. Ash, agreed that appellant’s underlying emotional conditions were aggravated by his
employment and that the aggravation had not ceased. Both physicians found that appellant could
eventually return to less stressful work for eight hours a day. The Board finds that OWCP
erroneously determined that there was a conflict of medical opinion evidence between these
physicians and referred appellant to Dr. Furmansky to resolve this conflict. Dr. Furmansky
found that appellant’s underlying conditions were not aggravated by employment duties and
opined that while he had restrictions due to his preexisting emotional conditions, employment
factors did not contribute to this disability or the need for medical treatment. The Board further
finds that in the August 20, 2004 decision, the Branch of Hearings and Review accurately
determined that while there was no conflict between Drs. Alston and Ash, Dr. Furmansky’s de
facto second opinion report created a conflict with Dr. Alston on the issues of continuing
disability and medical residuals which required examination by an impartial medical specialist to
resolve.

6

Mohamed Yunis, 42 ECAB 325, 334 (1991).

7

Id.

8

Furman G. Peake, 41 ECAB 361, 364 (1990).

9

Id.

10

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

11

R.C., 58 ECAB 238 (2006).

4

On remand, OWCP referred appellant to Dr. Entin to act as the impartial medical
examiner. Appellant’s attorney requested all documentation establishing that Dr. Entin had been
properly selected in accordance with the PDS. OWCP responded on November 15, 2004 stating
that documentation was enclosed, but failed to provide any evidence. In response to the Board’s
June 8, 2007 order, it issued a decision dated August 3, 2007, stating that Dr. Entin was
appropriately selected and included documentation that on October 6 and 7, 2003 Drs. Pock,
Stone and Sundell were bypassed. The Board finds that these three physicians were bypassed in
October 2003, 10 months before the Branch of Hearings and Review remanded for the selection
of an additional impartial medical examiner on August 20, 2004. These documents clearly
pertain to the selection of Dr. Furmansky as the impartial medical examiner and do not support
that Dr. Entin was selected through the appropriate procedures.
A physician selected by OWCP to serve as an impartial medical specialist should be
wholly free to make a completely independent evaluation and judgment. To achieve this, OWCP
has developed specific procedures for the selection of impartial medical specialists designed to
provide safeguards against any possible appearance that the selected physician’s opinion is
biased or prejudiced. The procedures contemplate that impartial medical specialists will be
selected from Board-certified specialists in the appropriate geographical area on a strict rotating
basis in order to negate any appearance that preferential treatment exists between a particular
physician and OWCP.12 The Federal (FECA) Procedure Manual (the procedure manual)
provided that the selection of referee physicians (impartial medical specialists) be made through
a strict rotational system using appropriate medical directories. The procedure manual provided
that the PDS be used for this purpose.13 The PDS was a set of stand-alone software programs
designed to support the scheduling of second opinion and referee examinations.14 The PDS
database of physicians was obtained from the American Board of Medical Specialties which
contains the names of physicians who are Board-certified in certain specialties. The Board has
held that an appropriate notation should be made in the Directory when a specialist indicates his
or her unwillingness to accept a case or when, for other valid reasons it is not advisable or
practicable to use his or her services.15
The record before the Board does not contain adequate documentation that Dr. Entin was
selected to serve as impartial medical examiner through the strict rotational system described
above. The only document linking Dr. Entin to the PDS was an appointment schedule dated
October 7, 2004. The record does not contain any documentation supporting that Dr. Entin was
the first physician to appear on PDS or whether other physicians were bypassed before reaching
Dr. Entin.16 As OWCP has not provided the necessary documentation to establish that Dr. Entin
was appropriately selected, he cannot serve as the impartial medical examiner and his report is

12

B.P., Docket No. 08-1457 (issued February 2, 2009).

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).

14

Id. at Chapter 3.500.7 (September 1995, May 2003).

15

David Peisner, 39 ECAB 1167 (1988).

16

See A.R., Docket No. 09-1566 (issued June 2, 2010).

5

not sufficient to resolve the conflict of medical opinion. It, therefore, has not met its burden of
proof to terminate appellant’s compensation and medical benefits effective April 29, 2005.
CONCLUSION
The Board finds that there is an unresolved conflict of medical opinion evidence such that
OWCP has not met its burden of proof to terminate appellant’s compensation and medical
benefits effective April 29, 2005.
ORDER
IT IS HEREBY ORDERED THAT the October 14, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 15, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WILFORD HALL MEDICAL CENTER,
LACKLAND AIR FORCE BASE, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0436
Issued: October 19, 2020

Case Submitted on the Record

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

JURISDICTION
On December 18, 2019 appellant filed a timely appeal from an October 31, 2019 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 to consider the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $26,070.62 during the period February 1, 2017 through August 17, 2019, for which she
1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the October 31, 2019 decision. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

was not at fault, because she concurrently received FECA wage-loss compensation benefits and
Social Security Administration (SSA) age-related retirement benefits without an appropriate
offset; (2) whether OWCP properly denied waiver of recovery of the overpayment; and
(3) whether OWCP properly required recovery of the overpayment by deducting $300.00 from
appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On November 2, 2000 appellant, then a 49-year-old food service worker filed an
occupational disease claim (Form CA-2) alleging that she sustained left carpal tunnel and cubital
tunnel syndrome due to factors of her federal employment. She noted that she first became aware
of her claimed condition and realized its relation to her federal employment on July 12, 2000.
OWCP assigned this claim File No. xxxxxx190.3
OWCP accepted the claim for left wrist enthesopathy; left lateral epicondylitis; bilateral
carpal tunnel syndrome; left shoulder, upper arm and neck sprain/strain; and left shoulder disorder
of the bursae and tendons. It paid appellant compensation on the periodic rolls as of June 16, 2002.
Appellant returned to part-time light-duty work on March 20, 2006 for four hours per day.
On March 30, 2006 OWCP adjusted her periodic rolls payments to reflect four hours of lost wages
per day.
On April 12, 2019 OWCP forwarded a Federal Employee Retirement System (FERS) dual
benefits calculation form to SSA.
On April 18, 2019 SSA completed the dual benefits calculation transmittal form that
provided appellant’s SSA benefit rates with a FERS offset and without a FERS offset. Beginning
February 2017, the SSA rate with FERS was $1,164.00 and without FERS was $329.70; beginning
December 2017, the SSA rate with FERS was $1,187.00 and without FERS was $336.20;
beginning December 2018, the SSA rate with FERS was $1,220.50 and without FERS was
$345.60. SSA noted that appellant received disability benefits from July 2002 through
January 2017.
On August 14, 2019 OWCP prepared a FERS offset calculation worksheet wherein it noted
the calculation of appellant’s SSA offset overpayment for the period February 1, 2017 through
August 17, 2019. This worksheet reflected that from February 1 through November 30, 2017
appellant received an $8,333.83 overpayment; from December 1, 2017 through November 30,
2018 appellant received a $10,237.65 overpayment; and from December 1, 2018 through
August 17, 2019 appellant received a $7,499.14 overpayment. The total overpayment was
determined to be $26,070.62.
On August 22, 2019 OWCP issued a preliminary determination finding an overpayment of
compensation in the amount of $26,070.62, for the period February 1, 2017 through August 17,
3

The record reflects that appellant has a prior claim for an August 21, 1999 traumatic injury, which was accepted
for right wrist sprain. On March 27, 2002 OWCP administratively combined the present claim with File No.
xxxxxx172, with the latter serving as the master file.

2

2019, because appellant’s FECA wage-loss compensation benefits were not offset by her SSA agerelated retirement benefits and therefore appellant received a prohibited dual benefit. It found her
not at fault in the creation of the overpayment because she was not aware, nor could she reasonably
have been aware, that her compensation benefits had been paid incorrectly. OWCP forwarded an
overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20).
It requested that appellant provide supporting financial documentation, including income tax
returns, bank account statements, bills and cancelled checks, pay slips, and any other records which
supported the income and expenses listed. OWCP afforded appellant 30 days to respond.
On September 26, 2019 OWCP received appellant’s request for a decision based on the
written evidence regarding a possible waiver of recovery of the overpayment. Also received was
a completed Form OWCP-20 dated September 11, 2019, on which appellant reported that she had
monthly income of $1,823.03, which included FECA compensation of $841.93 and SSA benefits
of $981.10. Appellant reported expenses of $1,390.75, which included $468.75 for rent, $300.00
for food, $75.00 for clothing, $175.00 for utilities, $120.00 for other expenses, and monthly
installment payments of $27.00 and $225.00 for credit card debt. She advised that she had no cash
or savings on hand, however, she had $540.84 in a checking account. Appellant did not list any
other assets.
By decision dated October 31, 2019, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $26,070.62 for the period
February 1, 2017 through August 17, 2019, for which she was not at fault, because it had failed to
offset her compensation payments by the portion of her SSA age-related retirement benefits that
were attributable to federal service. It noted that she listed her monthly income as $1,823.03;
however, appellant returned to work on May 20, 2006, in a light-duty, part-time capacity. OWCP
found that appellant’s total monthly income was $2,937.52, and less her expenses of $1,390.75,
she had an excess of income over expenses of $1,546.77 per month. It determined that her monthly
income exceeded her living expenses by more than the accepted amount of $50.00, and therefore
appellant failed to demonstrate that she required all of her income for necessary living expenses.
OWCP also noted that appellant listed total assets of $550.84, which was less than the applicable
resource base; however, appellant had not demonstrated that recovery would defeat the purpose of
FECA. It denied waiver of recovery of the overpayment because the evidence of record was
insufficient to establish that recovery of an overpayment would defeat the purpose of FECA or
would be against equity and good conscience. OWCP required recovery of the overpayment by
deducting $300.00 every 28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 Section 8116 limits the right of an employee to receive compensation.

4

5 U.S.C. § 8102(a).

3

While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.5
Section 10.421(d) of OWCP’s implementing regulations requires that it reduce the amount
of compensation by the amount of SSA benefits that are attributable to the federal service of the
employee.6 FECA Bulletin No. 97-09 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $26,070.62 for the period February 1, 2017 through August 17,
2019, for which she was not at fault, because she concurrently received FECA wage-loss
compensation benefits and SSA age-related retirement benefits without an appropriate offset.
The record indicates that, during the period at issue, appellant was receiving wage-loss
compensation under FECA while concurrently receiving SSA age-related retirement benefits. A
claimant cannot receive both compensation for wage-loss and SSA age-related retirement benefits
attributable to federal service for the same period.8 Consequently, the fact of the overpayment has
been established.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. SSA provided OWCP with the SSA rates with FERS and without FERS for
specific periods commencing February 1, 2017 through August 17, 2019. OWCP provided its
calculations for each relevant period based on the SSA worksheet and in its August 22, 2019
preliminary overpayment determination. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period February 1, 2017 through August 17, 2019, and finds that an overpayment of compensation
in the amount of $26,070.62 was created.9

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see B.B., Docket No. 19-0822 (issued February 18, 2020); B.F., Docket No. 18-1345
(issued February 6, 2019).
7

FECA Bulletin No. 97-09 (February 3, 1997); see also M.D., Docket No. 19-1500 (issued February 24, 2020);
G.K., Docket No. 18-0243 (issued August 17, 2018).
8

See C.B., Docket No. 20-0031 (issued July 27, 2020); see D.C., Docket No. 19-0118 (issued January 15, 2020).

9
See L.W., Docket No. 19-0787 (issued October 23, 2019); L.L., Docket No. 18-1103 (issued March 5, 2019); D.C.,
Docket No. 17-0559 (issued June 21, 2018).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides: “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.”10
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.11 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.12 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.13 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.14
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.15
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.16

10

5 U.S.C. § 8129(b).

11

20 C.F.R. § 10.436(a)(b).

12

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4(a)(2) (September 2018).
13

Id. at Chapter 6.400.4(a)(2).

14

Id. at Chapter 6.400.4(b)(3).

15

20 C.F.R. § 10.437(a)(b).

16

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

5

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.17 It considered her
financial information to determine if recovery of the overpayment would defeat the purpose of
FECA. In a Form OWCP-20 dated September 26, 2019, appellant listed income in the amount of
$1,823.03 and expenses in the amount of $1,390.75, as well as a summary of her liquid assets.
OWCP noted that she also received monthly income for her 20-hour-per week part-time light-duty
position. It found that appellant had total monthly income of $2,937.52, which exceeded her
monthly expenses of $1,390.75 by more than the accepted criteria of $50.00.18 OWCP explained
that it was not necessary to consider whether the evidence of record established that her assets
exceeded the base asset amount of $6,200.00 for an individual.19
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience. She has not submitted evidence to substantiate that she would
experience severe financial hardship in attempting to repay the debt, or that in reliance on the
overpayment she gave up a valuable right, or changed her position for the worse. Therefore,
OWCP properly found that recovery of the overpayment would not defeat the purpose of FECA
or be against equity and good conscience.20
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.21
Section 10.441 of OWCP’s regulations provides that, when an overpayment of
compensation has been made to an individual who is entitled to further payments, the individual
shall refund to OWCP the amount of the overpayment as soon as the error is discovered or his or
her attention is called to the same. If no refund is made, OWCP shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate of

17

See J.R., Docket No. 17-0181 (issued August 12, 2020); L.S., 59 ECAB 350 (2008).

18
Id. The Board notes that appellant’s reported monthly income of $1,823.03 also exceeded her expenses of
$1,390.75 by more than $50.00.
19

See supra note 14.

20

20 C.F.R. § 10.437(a)(b).

21

Id. at § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

6

compensation, the financial circumstances of the individual, and any other relevant factors so as
to minimize hardship.22
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$300.00 every 28 days from appellant’s continuing compensation payments.
In setting the recovery rate at $300.00 every 28 days, OWCP explained that the factors set
forth at 20 C.F.R. § 10.441(a) had been considered to minimize hardship, while liquidating the
debt, as appellant had financial resources sufficient for more than ordinary needs.23 As noted,
appellant submitted a Form OWCP-20 on September 26, 2019 showing that she had income in the
amount of $1,823.03 and expenses in the amount of $1,390.75. OWCP also noted that she had
additional monthly income due to her part-time light-duty position. Thus, it did not abuse its
discretion in setting the rate of recovery.24 The Board therefore finds that OWCP properly required
recovery of the overpayment from appellant’s continuing compensation payments at the rate of
$300.00 every 28 days.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $26,070.62 for the period February 1, 2017 through August 17,
2019, for which she was not at fault, because she concurrently received FECA wage-loss
compensation benefits and SSA age-related retirement benefits without an appropriate offset. The
Board also finds that OWCP properly denied waiver of recovery of the overpayment, and properly
required recovery of the overpayment by deducting $300.00 from appellant’s continuing
compensation payments every 28 days.

22

Id.

23

See R.D., Docket No. 19-0159 (issued April 17, 2020); D.S., Docket No. 18-1447 (issued July 22, 2019).

24

See T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).

7

ORDER
IT IS HEREBY ORDERED THAT the October 31, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2020
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Lexington, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-2162
Issued: June 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 21, 2007 appellant filed a timely appeal from the July 25, 2007 decision of the
Office of Workers’ Compensation Programs terminating her medical benefits. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s medical benefits effective
July 26, 2007 on the grounds that she had no residuals from her accepted employment injuries.
FACTUAL HISTORY
On August 19, 1997 appellant, then a 49-year-old housekeeper, injured herself when she
fell on some liquid on the floor. She returned to full duty on August 25, 1997. At that time,
appellant’s claim was accepted administratively, but not adjudicated. She began working in a
light-duty position in March 2002. On May 15, 2002 Dr. William Greenman, a Board-certified

internist, stated that appellant’s ongoing back and leg problems had persisted from the time of
her fall, which had aggravated the degenerative arthritic changes in her spine.
On May 21, 2002 appellant filed a notice alleging recurrence of a medical condition in
November 1997. She stated that, after she returned to work, her leg hurt climbing steps and her
back hurt when folding gowns and being on her feet all day. By decision dated October 23,
2002, the Office accepted appellant’s claim for lumbar and left knee sprain/strain. On July 28,
2003 it explained that appellant’s case was still open for medical treatment. From November 6,
2003 to February 23, 2006 the Office authorized treatment of a spinal lesion, several spinal
injections and one series of physical therapy. It denied a request from appellant’s treating
physicians for a spinal fusion surgery because degenerative disc disease was not an accepted
employment-related condition. On March 3, 2005 the Office denied appellant’s February 18,
2004 request for a schedule award on the grounds that the medical evidence did not establish that
she had reached maximum medical improvement.
On August 15, 2005 Dr. Donald Douglas, an anesthesiologist, stated that he began
treating appellant in July 2003 for left leg spasms and numbness and lower back pain. He was
treating her with intermittent caudal epidural injections. Dr. Douglas noted that appellant’s
treating physician did not think that her current condition was related to her employment injury.
He stated that he was unable to determine whether her diagnosed degenerative disc disease was
initiated or exacerbated by the accepted employment injury. However, based on his previous
treatment notes, Dr. Douglas opined that her lower extremity radiculopathy was directly related
to this fall. On March 13, 2006 he diagnosed lumbar degenerative disc disease and degenerative
joint disease, left lower extremity pain with possible radiculopathy and sacroiliac neuritis.
On September 11, 2006 appellant underwent a medical evaluation by Dr. Gregory Snider,
a Board-certified family physician,1 who reviewed her medical history and noted reports of
degenerative changes along the lumbar spine, especially at L4-5. Dr. Snider stated that appellant
was referred for pain management in July 2003 after a series of diagnostic studies were
unsuccessful at explaining her left leg symptoms. An April 13, 2004 x-ray of the left knee
showed minor medial joint space narrowing and a June 7, 2004 x-ray of the lumbar spine showed
degenerative changes, but no evidence of instability. On July 6, 2004 a magnetic resonance
imaging (MRI) scan revealed mild left neuroforaminal narrowing at L2-3. On physical
examination, Dr. Snider noted that appellant had ongoing complaints of left knee and low back
pain. He found leftward thoracic curvature and compensatory rightward lumbar curvature, with
no specific tenderness or spasms. Appellant had full range of motion in the hips, knees, ankles
and spine. Dr. Snider diagnosed lumbar strain superimposed on degenerative changes and left
knee contusion superimposed on degenerative changes. He stated that he did not have sufficient
medical records to make a determination on the issue of causation.
On February 12, 2007 the Office referred appellant for a second opinion examination to
determine the cause of her current back condition and whether she had any permanent
impairment to her lower extremity related to her accepted injury. On March 26, 2007
Dr. Richard Sheridan, a Board-certified orthopedic surgeon, examined appellant and reviewed
1

The Board notes that the Dr. Snider’s report indicates that the evaluation was requested by the Office. However,
the Office stated that it did not request this examination.

2

her medical record. He noted complaints of intermittent pain in the left knee and low back and
intermittent paresthesias in the left lower extremity. On physical examination Dr. Sheridan
found normal gait, station and spinal curvature. He found pain on superficial palpitation of the
lumbosacral junction, but no muscle spasms, scoliosis, kyphosis, pelvic obliquity or iliac crest
asymmetry. Appellant’s lumbar spine had flexion to 70 degrees, extension to 30 degrees, and
bilateral rotation and lateral flexion to 30 degrees. Dr. Sheridan found nondermatomal
hypesthesia in the left lower extremity, but full range of motion and motor power at the hip and
knee. He also reviewed and evaluated appellant’s diagnostic tests. On the basis that appellant
had no positive objective findings on examination, Dr. Sheridan opined that appellant’s acute
lumbar sprain had resolved. He stated that, under the American Medical Association, Guides to
the Evaluation of Permanent Impairment (5th ed. 2001), she had no permanent impairment in the
lower extremity as a result of her low back condition. In response to the Office’s request for
clarification, Dr. Sheridan stated that appellant’s diagnosed lumbar degenerative disc disease was
not related to the accepted employment injury, but rather was related to the natural aging
process.
By notice dated June 19, 2007, the Office proposed termination of appellant’s medical
benefits on the grounds that her accepted condition of lumbar strain had resolved and her current
condition was unrelated to the accepted August 19, 1997 employment injury. The Office
indicated that the opinion of Dr. Sheridan carried the weight of the medical opinion evidence.
Appellant submitted no additional medical information related to her claim in the time allotted
for response to the proposed termination.
By decision dated July 25, 2007, the Office terminated appellant’s medical benefits
effective July 26, 2007.
LEGAL PRECEDENT
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.2
ANALYSIS
The Office accepted appellant’s claim for sprain/strain of the lumbar spine and left knee.
The issue to be determined is whether the Office has met its burden of proof to establish that
appellant has no remaining disability or residuals related to her accepted injuries.
On August 15, 2005 Dr. Douglas, an anesthesiologist, stated that he was unsure whether
appellant’s August 19, 1997 fall had exacerbated the degenerative disc disease in her lumbar
spine, but that, based on previous treatment notes, her lower extremity radiculopathy was directly
related to the accepted event. On September 11, 2006 Dr. Snider, a Board-certified family
physician, diagnosed lumbar strain and left knee contusion superimposed on degenerative
changes but did not have sufficient medical records to provide an opinion on the cause of these
2

James F. Weikel, 54 ECAB 690 (2003).

3

conditions. The Board finds that the reports of Dr. Douglas and Dr. Snider are of little probative
value because they do not address the issue of causation of appellant’s lumbar spine condition
and have no rationale on the issue of appellant’s lower extremity condition.
The Office referred appellant for a second opinion examination on the cause of her
current back condition and whether she had any permanent impairment to her lower extremity
related to her accepted injuries. On March 26, 2007 Dr. Sheridan, a Board-certified orthopedic
surgeon, examined appellant and conducted a review of her diagnostic tests. Appellant reported
intermittent pain in the left knee and low back and intermittent paresthesias in the left lower
extremity. On physical examination Dr. Sheridan found pain on superficial palpitation of the
lumbosacral junction. However appellant had no muscle spasms and her gait, station and spinal
curvature were normal. Dr. Sheridan noted nondermatomal hypesthesia in the left lower
extremity, but found full range of motion and motor power at the knee and hip. Dr. Sheridan
opined that appellant’s acute lumbar sprain had resolved because she had no positive objective
findings on examination. He also stated that, under the A.M.A, Guides, she had no permanent
impairment in her legs as a result of her low back condition. Dr. Sheridan stated that appellant’s
diagnosed lumbar degenerative disc disease was not related to the accepted employment injury,
but rather was related to the natural aging process. Because it is well rationalized and based on
an accurate medical history, the opinion of Dr. Sheridan carries the weight of the medical
opinion evidence on the issue of appellant’s accepted lumbar injury. The Board therefore finds
that the Office properly relied on Dr. Sheridan’s opinion to terminate appellant’s medical
benefits for her lower back injury.
However, the Board notes that, while Dr. Sheridan discussed lower extremity conditions
associated with appellant’s spine, he gave no opinion on her accepted condition of strained left
knee. Additionally, the Office made no findings regarding her accepted knee injury, its June 19,
2007 notice of proposed termination or its July 26, 2007 termination decision. As the Office did
not determine whether appellant had any residuals related to her accepted left knee strain, the
Board finds that it did not meet its burden of proof to terminate her medical benefits for this
condition.
CONCLUSION
The Board finds that the Office properly terminated appellant’s medical benefits for
treatment of her lumbar sprain, effective July 26, 2007, on the grounds that she had no residuals
from this accepted employment injury. However, the Office improperly terminated medical
benefits for her employment-related left knee strain.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 25, 2007 is affirmed in part and reversed in part.
Issued: June 11, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Troy, MI, Employer
)
___________________________________________ )
S.F., Appellant

Appearances:

Docket No. 07-164
Issued: November 7, 2007

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

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

JURISDICTION
On October 24, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 6, 2006 which denied her claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant sustained permanent impairment due to her February 3,
2000 injury.
FACTUAL HISTORY
On February 3, 2000 appellant, then a 55-year-old city carrier, injured her low back when
she slipped on an icy sidewalk while delivering mail. The Office accepted her claim for

lumbosacral contusion, lumbosacral strain and exacerbation of herniated nucleus pulposus at
L4-5. Appellant stopped work on February 3, 2000 and returned on February 4, 2000.1
Appellant came under the care of Dr. A.J. Brewer, a Board-certified orthopedic surgeon.
In reports dated February 3 to March 24, 2000, Dr. Brewer indicated that appellant’s medical
history was significant for work-related back injuries in 1994, 1996 and 1999. He diagnosed L45 disc herniation by history, contusion lumbosacral spine with muscle strain and degenerative
arthritis of the lumbosacral spine and pelvis. Dr. Brewer recommended physical therapy and
returned appellant to work subject to restrictions. A February 3, 2000 lumbar spine x-ray
revealed no acute bony abnormality and slight disc space at L4-5. A May 8, 2000 magnetic
resonance imaging (MRI) scan of the lumbar spine revealed a large central nuclear extrusion at
L4-5 with compression of cauda equina and a large nuclear extrusion, centrally and to the right
of midline at L5-S1 level with obstruction of the nerve root canal entry zone, displacement of S1
root and compression of cauda equina.
Dr. Brewer referred appellant to Dr. Lisa B. Grant, a Board-certified physiatrist. In
reports dated August 8 to November 21, 2000, Dr. Grant noted appellant’s history, diagnosed
right sacroiliitis and symptoms of right L5-S1 radiculopathy and recommended steroid
injections. In reports dated January 29 to November 28, 2001, she diagnosed bilateral
sacroiliitis, greater on the right, with some improvement of the right L5-S1 radiculopathy.
Dr. Grant noted that appellant underwent epidural steroid and facet joint blocks and physical
therapy without improvement. She opined that appellant’s condition was chronic and
recommended that he work six hours per day within restrictions.
In February 2002, the Office referred appellant to Dr. Andrew Haig, a Board-certified
orthopedic surgeon, for an evaluation of permanent partial impairment in accordance with the
American Medical Association, Guides to the Evaluation of Permanent Impairment2 (A.M.A.,
Guides). In a report dated February 11, 2002, Dr. Haig opined that appellant had not reached
maximum medical improvement.
On February 8, 2003 appellant filed a claim for a schedule award. She submitted reports
from Dr. Grant dated August 29, 2002 to February 10, 2003. Dr. Grant recommended that
appellant continue working six hours per day subject to restrictions. In correspondence dated
March 28, 2003, the Office advised appellant that the medical evidence indicated that she had
not reached maximum medical improvement and, therefore, a schedule award for permanent
impairment could not be considered.
In an April 10, 2003 report, Dr. Grant noted that appellant presented with complaints of
pain radiating into both legs with numbness and tingling. She noted findings upon physical
examination of cranial nerves were grossly intact, motor examination was normal for strength in
1

Appellant has the following claims which were administratively consolidated into the present claim before the
Board: a June 29, 1994 injury which was accepted for protrusion of L4-5 discs, File No. 09-0392696; a May 28,
1996 injury which was accepted for lumbosacral sprain, File No. 09-0416907; and a March 6, 1999 injury which
was accepted for herniated nucleus pulposus, File No. 09-0454979.
2

A.M.A., Guides (5th ed. 2001).

2

the bilateral upper extremities, intact sensation, reflexes were intact, negative Achilles tendon,
normal range of motion of the hips and tenderness over the sacroiliac joints. Dr. Grant
diagnosed bilateral sacroiliitis, history of chronic radiculopathy in the right lower extremity and
right knee pain. She opined that appellant had reached maximum medical improvement.
Dr. Grant referred appellant to a Dr. Hague for an impairment rating.
The Office referred appellant for a second opinion to Dr. Charles F. Xeller, a Boardcertified orthopedic surgeon. In a report dated August 8, 2003, Dr. Xeller reviewed the medical
records and performed a physical examination. He noted the history of appellant’s work-related
back injury and diagnosed degenerative disc disease and spinal stenosis. Dr. Xeller listed
findings upon physical examination of no spasm, negative straight leg raises, normal knee and
ankle reflexes, pain radiating down the left leg, full range of motion of the hips, knees and
ankles, Patrick, Trendelenburg and Waddells’ test were negative, no instability, gait was fairly
normal, thigh measurements were 21 inches bilaterally and calves were 16 inches bilaterally and
there was no vascular changes. He advised that appellant had residuals of her back injury with
disc protrusions and the slow development of spinal stenosis. Dr. Xeller indicated that appellant
could work eight hours per day with a lifting restriction of 25 pounds. He opined that appellant
had reached maximum medical improvement and noted that she was a “DRE 2” of the lumbar
spine for a seven percent impairment.
On June 23 and August 14, 2003 Dr. Grant noted findings upon physical examination of
intact cranial nerves, normal strength in the bilateral upper and lower extremities, intact
sensation, intact reflexes in the upper extremity but not obtainable from the lower extremities,
negative straight leg raises bilaterally with good, pain-free range of motion in both hip joints
with tenderness over the sacroiliac joints. She diagnosed bilateral sacroiliitis, history of chronic
radiculopathy in the right lower extremity and right knee pain.
In a letter dated August 22, 2003, the Office requested that Dr. Xeller clarify whether
appellant had residuals of her work-related injury and to provide an impairment rating in
accordance with the A.M.A., Guides. In a response dated September 8, 2003, Dr. Xeller noted
that appellant had residuals of the work-related lumbar strain and contusion as well as
degenerative disc disease and spinal stenosis. He opined that appellant reached maximum
medical improvement within six months of her date of injury. According to the A.M.A., Guides,
page 385, appellant was a “DRE II” for a seven percent rating.
In a report dated October 7, 2003, an Office medical adviser indicated that appellant
reached maximum medical improvement on August 3, 2000. She opined that in accordance with
the A.M.A., Guides appellant had no impairment of either lower extremity. The medical adviser
referenced Dr. Grant’s report of June 2003 which noted normal left leg strength for zero percent
impairment.
On October 22, 2003 the Office requested that the medical adviser clarify her
October 7, 2003 report. On October 22, 2003 the Office requested that Dr. Xeller address
whether appellant had residuals of the accepted work-related condition and to provide specific
work restrictions.

3

On October 8, 2003 Dr. Grant noted treating appellant for right lumbar radiculopathy.
She noted that examination findings had not changed since August 14, 2003. Dr. Grant
diagnosed bilateral sacroiliitis, history of chronic radiculopathy in the right lower extremity and
right knee pain. An MRI scan of the lumbar spine dated November 5, 2003, revealed broadbased disc bulge with radial tear at L4-5 with bilateral lateral components and bilateral neural
foraminal narrowing.
In a report dated November 9, 2003, the medical adviser noted that there was no loss of
strength for the left leg based on Dr. Xeller’s examination of August 8, 2003 and Dr. Haig’s
report of February 11, 2002. She noted that Dr. Xeller provided a seven percent whole person
impairment rating which was based on lumbar range of motion and not impairment to an
extremity. The medical adviser found that Dr. Xeller’s examination noted no impairment to
appellant’s lower extremities.
In a December 11, 2003 report, Dr. Xeller noted appellant’s increased symptoms since
the February 3, 2000 work injury. He stated that appellant was at maximum medical
improvement and did not require ongoing treatment but recommended anti-inflammatory
medication. Dr. Xeller advised that appellant’s complaints of increased dermatomal pain
radiating down her leg were consistent with some degree of nerve root compression. He opined
that appellant could work eight hours a day with lifting limited to 25 pounds.
In a decision dated December 11, 2003, the Office denied appellant’s claim for a
schedule award.3
On January 5, 2004 appellant requested reconsideration contending that she sustained
permanently impairment due to her work-related injury and was entitled to a schedule award. On
November 24, 2003 Dr. Grant treated appellant for pain radiating from her back down both
lower extremities. She noted findings upon physical examination of intact cranial nerves, motor
examination of normal strength in the bilateral arms and legs with intact sensation, intact reflexes
in the upper extremity but not obtainable from the lower extremities, negative straight leg raises
bilaterally with good, pain-free range of motion in both hip joints with tenderness over the
sacroiliac joints. Dr. Grant diagnosed bilateral sacroiliitis, chronic and chronic bilateral
radiculopathy and recommended a series of epidural steroid injections.
In a decision dated January 13, 2004, the Office denied reconsideration on the grounds
that appellant’s request neither raised substantive legal questions nor included new and relevant
evidence and was therefore insufficient to warrant review of the prior decision.4
3

The Office determined that there was a conflict in opinion between Dr. Grant, appellant’s treating physician, and
Dr. Xeller, the Office referral physician, regarding appellant’s ability to work. Thereafter, in the course of
developing the claim, the Office referred appellant to several impartial medical examiners. In a medical report dated
June 13, 2005, Dr. Robert S. Levine, a Board-certified orthopedist, determined that appellant could return to a lightduty position eight hours per day.
4

On June 30, 2004 appellant filed a claim for recurrence of disability, asserting that she had a recurrence of back
pain on May 23, 2004. Medical evidence submitted in support of her recurrence claim did not specifically address
whether she had an employment-related permanent impairment to a scheduled member of the body. The Office
denied the recurrence claim on February 9, 2005.

4

On July 29, 2004 the Office authorized appellant to change her treating physician to
Dr. David M. Montgomery, a Board-certified orthopedic surgeon, and to be seen in consultation
with Dr. Dennis Dobritt, an osteopath.
In an August 6, 2004 report, Dr. Montgomery noted a history of injury and diagnosed
lumbar disc disease and foraminal stenosis. He noted findings upon physical examination of no
motor deficits in the quadriceps, tibialis anterior or gastrocnemium tendons, reflexes were
symmetric and pedal pulses were a Grade 2. Dr. Dobritt noted a history of injury and diagnosed
bilateral lumbosacral radiculopathy and degenerative disc disease at L4-5 and L5-S1 with disc
protrusion at L4-5 and L5-S1. He noted findings upon physical examination of no pathological
reflexes, sensation was intact in the lower extremities bilaterally, no autonomic dysfunction in
the lower extremities, dorsal pedal pulses were palpable bilaterally, muscle strength was normal
in the lower extremities bilaterally and straight leg raise was positive in the lower extremities
bilaterally. Dr. Dobritt recommended a diagnostic bilateral L5-S1 transforaminal selective nerve
root block and a percutaneous disc compression.
In a letter postmarked March 25, 2005 and in a letter dated May 30, 2005, appellant
requested an oral hearing. In decisions dated May 13 and June 8, 2005, the Office denied
appellant’s request for an oral hearing.
In a letter dated June 25, 2005, appellant appealed her claim to the Board. On January 3,
2006 the Board issued an order remanding the case directing the Office to reconstruct the case
record and to issue an appropriate decision to protect her appeal rights.5
In a decision dated September 6, 2006, the Office denied appellant’s claim for a schedule
award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.8

5

Docket No. 05-1457 (issued January 3, 2006).

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

5

No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.9 As neither the Act nor its regulations provide for
the payment of a schedule award for the permanent loss of use of the back or the body as a
whole, no claimant is entitled to such a schedule award.10 The Board notes that section
8101(19) specifically excludes the back from the definition of “organ.”11 However, a claimant
may be entitled to a schedule award for permanent impairment to an upper or lower extremity
even though the cause of the impairment originated in the neck, shoulders or spine.12
ANALYSIS
On appeal appellant contends that she is entitled to a schedule award for permanent
impairment of her lower extremities and back. The Office accepted her claim for protrusion of
L4-5 discs, lumbosacral sprain, herniated nucleus pulposus, lumbosacral contusion, lumbosacral
strain and exacerbation of herniated nucleus pulposus at L4-5. However, as noted above, the Act
does not permit a schedule award based on impairment to the back or spine. Appellant may
receive a schedule award for impairment to the lower extremities if such impairment is
established as being due to her accepted back condition.
Appellant submitted numerous reports from Dr. Grant. The Board has carefully reviewed
Dr. Grant’s opinion and notes that her findings do not support a schedule award for permanent
partial impairment of the lower extremities. She noted findings upon physical examination of
intact cranial nerves, motor examination was normal for strength, intact sensation, reflexes were
intact, negative Achilles tendon, normal range of motion of the hips, tenderness over the
sacroiliac joints. Although, Dr. Grant noted appellant’s complaints of pain radiating into both
legs with numbness and tingling she provided no objective clinical evidence of any neurological
impairment.13 Her reports offer no basis on which to rate impairment under the A.M.A., Guides.
The Office referred appellant to Dr. Xeller who stated that appellant had a seven percent
whole person impairment of the spine. Dr. Xeller referenced Table 15-3 of the A.M.A., Guides
which pertains to impairment for a lumbar spine injury.14 As noted, however, neither the Act nor
the implementing regulations provide for the payment of a schedule award for whole body
impairment or for impairment of the back. Dr. Xeller did not otherwise address how any of his
findings would reflect permanent impairment in a scheduled member of the body, such as the
legs, under the A.M.A., Guides.

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

10

See Jay K. Tomokiyo, 51 ECAB 361 (2000).

11

5 U.S.C. § 8101(19).

12

Thomas J. Engelhart, supra note 9.

13

Loss of sensation (pain) and loss of strength are rated according to guidelines set forth in the A.M.A., Guides at
Chapter 17 for the lower extremities.
14

A.M.A., Guides at 385, Table 15-3 (5th ed. 2001).

6

The Office medical adviser properly reviewed the medical record and found no basis on
which to attribute permanent impairment to a scheduled member of the body.15 The medical
adviser referenced Dr. Grant’s report of June 2003 which provided a measurement of normal
lower extremity strength. In a report dated November 9, 2003, the medical adviser clarified that,
as to the left lower extremity, there was no loss of strength based on Dr. Xeller’s examination of
August 8, 2003 and Dr. Haig’s report of February 11, 2002. The medical adviser also noted that
Dr. Xeller’s finding of seven percent whole person impairment based on lumbar range of motion
was not in reference to a scheduled member of the body. The medical adviser explained that for
there to be impairment to the lower extremities there must be evidence of impingement or
impairment of the exiting nerve roots in the lumbar spine which supply the lower extremities
which was absent in appellant’s case. The medical adviser properly concluded that appellant had
no impairment to her lower extremities.
Additional reports from Dr. Grant noted symptoms of bilateral lumbar radiculopathy.
She noted an essentially normal physical examination with intact cranial nerves, motor
examination of normal strength in the bilateral upper and lower extremities, intact sensation, and
negative straight leg raises bilaterally. However, Dr. Grant provided no objective clinical
evidence of neurological impairment to the lower extremities. There was no other basis on
which to attribute impairment under the A.M.A., Guides.
The reports of Drs. Montgomery and Dobritt do not support a schedule award for
permanent partial impairment of the lower extremities. On August 6, 2004 Dr. Montgomery
noted findings upon physical examination but did not specifically address permanent impairment
of the extremities nor did he provide findings indicative of permanent impairment pursuant to the
A.M.A., Guides. Dr. Dobritt noted findings on examination but did not specifically address
permanent impairment of the extremities nor did he provide findings indicative of permanent
impairment pursuant to the A.M.A., Guides. The physicians provided no basis on which to rate
permanent impairment under the A.M.A., Guides. The Board finds that appellant has not
established permanent impairment to a scheduled member of the body pursuant to the A.M.A.,
Guides.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award.

15

The Board notes that it is appropriate for an Office medical adviser to review the clinical findings of the
treating physician to determine the permanent impairment. See Federal (FECA) Procedure Manual, Part 3 -Medical, Medical Examinations, Chapter 3.500.5(c) (March 1994); Richard R. LeMay, 56 ECAB ___ (Docket No.
04-1652, issued February 16, 2005).

7

ORDER
IT IS HEREBY ORDERED THAT the September 6, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8