United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Pomeroy, WA,
Employer
__________________________________________

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

Docket No. 18-1449
Issued: March 19, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 17, 2018 appellant filed a timely appeal from a June 15, 2018 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,465.20 because he concurrently received Social Security Administration (SSA)
retirement benefits while receiving FECA benefits for the period January 1, 2012 through March 3,
2018; (2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $488.40 every 28 days from
appellant’s continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on January 3, 1983 appellant, then a 33-year-old painter, sustained
injuries to his left elbow, right shin, and back when he fell through a dislodged grate while in the
performance of duty. Appellant stopped work on January 17, 1983. OWCP accepted his claim
for contusions of the left elbow and right shin, back strain, and herniated nucleus pulposus at
L5-S1. It paid wage-loss compensation and medical benefits beginning January 22, 1983.
In July 1989, appellant was referred for vocational rehabilitation. He returned to work as
a grounds keeper in August 19892 and then as a truck driver on July 21, 1992. Appellant stopped
work on April 5, 1994. In May 4, 1994, OWCP reduced his compensation based on his actual
earnings in his capacity as a truck driver with a private company. Appellant continued to receive
wage-loss compensation at the reduced amount and OWCP placed him on the periodic rolls,
effective June 16, 2002.
In an informational letter dated December 13, 2011, OWCP informed appellant that FECA
required his wage-loss compensation benefits to be reduced if he began receiving Social Security
Administration (SSA) retirement benefits based on his age and federal service. It notified him of
his obligation to report receipt of such retirement benefits to avoid an overpayment of
compensation. In a Form CA-1032 dated December 11, 2012, appellant informed OWCP that he
was receiving SSA benefits as part of an annuity for federal service.
In CA-1032 forms dated December 10, 2013, December 19, 2014, January 4 and
December 12, 2016, and January 5, 2018, appellant indicated “No” that he was not receiving SSA
benefits as part of an annuity for federal service. On the Form CA-1032 that he signed on
January 5, 2018 appellant reported that he was receiving “retirement benefit.”
On January 16, 2018 OWCP provided SSA with a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form. On February 8, 2018 SSA submitted the completed
form, which showed SSA benefit rates with a FERS offset and without a FERS offset from
January 2012 through December 2017. Beginning January 2012, appellant’s SSA rate, with FERS
was $525.20 and without FERS was $506.20. Beginning December 2012, the SSA rate with FERS
was $534.10 and $514.80 without FERS. Beginning December 2013, the SSA rate with FERS
$542.10 and $522.50 without FERS. Beginning December 2014, the SSA rate with FERS was
$551.30 and $531.30 without FERS. Beginning December 2015, the SSA rate with FERS was
$551.30 and $531.30 without FERS. Beginning December 2016, the SSA rate with FERS was
$552.90 and $532.90 without FERS. Beginning December 2017, the SSA rate with FERS was
$563.90 and $543.60 without FERS.
In a letter dated March 5, 2018, OWCP advised appellant that he had been receiving a
prohibited dual benefit. It noted that the portion of SSA benefits earned as a federal employee was
part of his retirement and that the receipt of wage-loss compensation under FECA and federal

2

Appellant was terminated from his employment with the employing establishment effective November 9, 1989.

2

retirement was prohibited. OWCP adjusted appellant’s FECA benefits to account for his SSA
offset, which reduced his FECA wage-loss compensation payments from $2,143.00 to $2,124.26.3
On March 16, 2018 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $1,465.20 because he received FECA wage-loss
compensation benefits concurrently with SSA retirement benefits from January 1, 2012 through
March 3, 2018. It provided a calculation of the overpayment. OWCP recommended that appellant
be found without fault in the creation of the overpayment because he was not aware nor could he
reasonably have been expected to know that it had paid compensation incorrectly. It requested
that he submit a completed overpayment recovery questionnaire (Form OWCP-20) to determine a
fair repayment method. OWCP also noted that appellant could request waiver of recovery of the
overpayment. It provided him with his appeal rights and afforded 30 days for a response.
No response or additional evidence was received.
By decision dated June 15, 2018, OWCP determined that appellant had received an
overpayment of compensation in the amount of $1,465.20 because a portion of appellant’s SSA
benefits was based on credits earned while working in the Federal Government and that this portion
of his SSA benefit was a prohibited dual benefit. It further found that he was not at fault in the
creation of the overpayment, but denied waiver of recovery of the overpayment. OWCP noted
that no response had been received following the preliminary determination. It required recovery
of the overpayment by deducting $488.40 every 28 days from appellant’s continuing wage-loss
compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment.4 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.5
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA age-based benefits that are attributable to 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

3

The amount of the SSA offset was noted as $18.74.

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

3

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
Section 404.409 of SSA regulations provides that for individuals born from 1943 to 1954,
full retirement age is 66 years.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $1,465.20 because he concurrently received SSA retirement
benefits while receiving FECA benefits for the period January 1, 2012 through March 3, 2018.
Appellant has not challenged the fact or amount of overpayment. The record indicates that, while
appellant was receiving compensation for total disability under FECA, he was also receiving SSA
age-based retirement benefits. A claimant cannot receive both compensation for wage-loss and
SSA age-based benefits attributable to federal service for the same period.9 Consequently, the fact
of overpayment has been established.
To determine the amount of overpayment, the SSA provided appellant’s SSA rate with
FERS and without FERS during the applicable period. OWCP determined that appellant received
a total of $163,876.50 in wage-loss compensation during the period from January 1, 2012 to
March 3, 2018. Based on the information provided by SSA, OWCP calculated that appellant
should have received a total of $162,411.30 in wage-loss compensation had OWCP applied the
proper SSA rate with FERS offset, which resulted in an overpayment of $1,465.20, during the
applicable period. The Board has reviewed OWCP’s calculations of the dual benefits that
appellant received and finds that it properly determined that he received a $1,465.20 overpayment
of compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.10
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.11
Recovery of an overpayment will defeat the purpose of FECA if 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
7

FECA Bulletin No. 97-09 (February 3, 1997).

8

20 C.F.R. § 404.409.

9

Supra note 6.

10

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
11

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

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benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.12 Additionally recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.13
OWCP 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.14 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $1,465.20
overpayment of compensation.
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.16 Appellant,
however, had the responsibility to provide the appropriate financial information to OWCP.17
In its preliminary determination dated March 16, 2018, OWCP clearly explained the
importance of providing the completed overpayment questionnaire and financial information,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. It advised appellant that it would deny waiver if he failed
to furnish the requested financial information within 30 days. Appellant, however, did not respond
nor did he complete a Form OWCP-20 or submit any financial information necessary for OWCP
to determine if recovery of the overpayment would defeat the purpose of FECA or if recovery
would be against equity and good conscience.

12

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1)(b) (June 2009).
13

Id. at § 10.437(a)(b).

14

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

15

Id. at § 10.438(b).

16

Id. at § 10.436.

17

Id. at § 10.438.

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Consequently, as appellant did not submit the information required under section 10.438
of OWCP’s regulations, which was necessary to determine his eligibility for waiver, OWCP
properly denied waiver of recovery of the overpayment.18
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as the error is discovered or his 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 compensation, the financial circumstances of the
individual, and any other relevant factors, so as to minimize any hardship.19
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$488.40 every 28 days from appellant’s continuing compensation.
As noted, appellant did not complete the Form OWCP-20 nor submit financial information
as requested prior to the final June 15, 2018 decision. The overpaid individual is responsible for
providing information about income, expenses, and assets as specified by OWCP.20 When an
individual fails to provide requested financial information, OWCP should follow minimum
collection guidelines designed to collect the debt promptly and in full.21 As appellant did not
submit information to OWCP as requested, the Board finds that there is no evidence in the record
to show that OWCP erred in directing recovery of the $1,465.20 overpayment at the rate of $488.40
every 28 days from appellant’s continuing compensation.22
On appeal, appellant alleges that he cannot afford the $448.00 deducted from his continuing
compensation payments. He did not, however, provide financial documents to support his
argument. Accordingly, there is no evidence of record to establish that OWCP erred in directing
recovery at the rate of $488.40 every 28 days from appellant’s continuing compensation.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$1,465.20, that OWCP properly denied waiver of recovery of the overpayment, and that it properly
required recovery at the rate of $488.40 every 28 days from appellant’s continuing compensation.
18

See S.B., Docket No. 16-1795 (issued March 2, 2017).

19

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

20

Id. at 10.438.

21

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, supra note 12 at Chapter
6.200.4(c)(2) (May 2004).
22

See E.K., Docket No. 18-0587 (issued October 1, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 19, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANAGEMENT, WILD HORSE &
BURRO CENTER, Elm Creek, NE, Employer
__________________________________________

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Appearances:
Andrew D. Romatzke, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1590
Issued: January 4, 2008

Case Submitted on the Record

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

JURISDICTION
On May 31, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 29, 2006 merit decision denying his claim for a schedule award
and a March 2, 2007 nonmerit decision denying his request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he has any
permanent impairment related to his accepted injury; and (2) whether the Office properly denied
his request for merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 13, 2005 appellant, a 64-year-old horse wrangler, filed a traumatic injury claim
alleging that on June 9, 2005, while herding wild horses, he was knocked to the ground and the
horse he was riding rolled over on him. The Office accepted his claim for closed vertebral

fractures of the thoracic and lumbar spine, hemothorax, rib fracture, crushing thigh injury,
paralytic iteus, lung contusion, unspecified pneumonia and coronary atherosclerosis. The Office
paid appropriate compensation benefits and appellant returned to full-duty work with restrictions
on November 11, 2005.
On July 24, 2006 appellant filed a claim for a schedule award. By letter dated July 27,
2006, the Office advised him of the evidence needed to support an impairment evaluation in
accordance with the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).1 The Office advised appellant to specify the body part for which
impairment was claimed. It also advised that only an impairment of a body part that is affected
by damage to the nerves coming from the back may be claimed; not an award for the back itself.
Appellant submitted medical reports from Dr. Dennis P. McGowan, an orthopedic
surgeon. In a November 11, 2005 report, Dr. McGowan noted that appellant was five months
post reconstruction of an L1 fracture and possible T12-L1 dislocation and that examination
revealed good range of motion of the back with an intact neurologic system. He released
appellant to work with restrictions. In a June 23, 2006 report, Dr. McGowan advised that
appellant was at maximum medical improvement and had full strength, an upright walk and an
unremarkable nerve tension test. He released appellant to a regular exercise program and
indicated that he should come back on a yearly basis.
By decision dated August 29, 2006, the Office denied appellant’s claim for a schedule
award.
On February 9, 2007 appellant requested reconsideration. He provided a list of job duties
he could not effectively perform and a list of the symptoms he experiences on a daily basis since
his work injury. Appellant advised that he was providing a copy of his job description; however,
none was received into the record.
By decision dated March 2, 2007, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Under section 8107 of the Federal Employees’ Compensation Act2 and section 10.404 of
the implementing federal regulations,3 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for 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

1

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

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

A.M.A., Guides4 has been adopted by the Office and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.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.6 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.7 The Board notes that section
8109(19) specifically excludes the back from the definition of organ.8 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.9
Before the A.M.A., Guides can be utilized, a description of appellant’s impairment must
be obtained from his physician. In obtaining medical evidence required for a schedule award,
the evaluation made by the attending physician must include a description of the impairment
including, where applicable, the loss in degrees of active and passive motion of the affected
member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation or other pertinent descriptions of the impairment. This description must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to
clearly visualize the impairment with its resulting restrictions and limitations.10
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.11
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained closed vertebral fractures of the thoracic and
lumbar spine, hemothorax, rib fracture, crushing thigh injury, paralytic iteus, lung contusion,
unspecified pneumonia and coronary atherosclerosis as a result of his June 9, 2005 work-related
fall and authorized all appropriate medical procedures. Appellant filed a claim for a schedule
award on July 24, 2006 and was advised by the Office to obtain an impairment determination
pursuant to the A.M.A., Guides. As noted, the Act does not permit a schedule award for

4

A.M.A., Guides; Joseph Lawrence, Jr., 53 ECAB 331 (2002).

5

Id.

6

See Joseph Lawrence, Jr., supra note 4; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB
1287 (1989).
7

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

8

5 U.S.C. § 8107; see also Phyllis F. Cundiff, 52 ECAB 439 (2001); Jay K. Tomokiyo, 51 ECAB 361 (2000).

9

5 U.S.C. § 8109(c).

10

Robert B. Rozelle, 44 ECAB 616, 618 (1993).

11

Veronica Williams, 56 ECAB ___ (Docket No. 04-2120, issued February 23, 2005).

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impairment to the back or spine. Appellant may receive a schedule award for impairment to the
upper or lower extremities if such impairment is established as being due to his accepted back
injuries.
On November 11, 2006 Dr. McGowan released appellant to work with restrictions. In a
June 23, 2006 report, he determined that appellant reached maximum medical improvement and
could be seen on a yearly basis. However, Dr. McGowan did not address the issue of
impairment to a scheduled member of the body as a result of the June 9, 2005 work-related
injury. He found that both the physical and neurologic examinations showed good results.
There are no other medical reports of record which attribute any permanent impairment to a
scheduled member of the body as a result of the June 9, 2005 work-related fall. The medical
evidence of record does not establish that appellant sustained impairment to a scheduled member
of the body as a result of the accepted injury. Consequently, appellant has not established
entitlement to a schedule award for permanent impairment caused or aggravated by his accepted
employment conditions.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by submitting
relevant and pertinent evidence not previously considered by the Office.12 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.13
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.14 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.15
ANALYSIS -- ISSUE 2
Appellant requested reconsideration of the Office’s August 29, 2006 decision on
February 9, 2007. In his letter, he described his physical capabilities and symptoms since the
work injury.
Appellant’s statements do not address a legal argument or advance a point of law and
therefore fail to meet the first and second standards of the Office’s regulations. He has merely
stated his belief that he is entitled to a schedule award because of his diminished physical
12

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

13

Howard A. Williams, 45 ECAB 853 (1994).

14

Donna L. Shahin, 55 ECAB 192 (2003).

15

20 C.F.R. § 10.608.

4

capabilities and ongoing symptoms since the work injury. However, the issue of impairment to a
scheduled member is medical in nature and must be addressed by relevant medical evidence.16
Appellant did not submit any medical evidence addressing his permanent impairment. He has
not met the third standard of the Office’s regulations and the Office was not required to reopen
his claim for further consideration of the merits.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award.
The Board further finds that the Office properly denied appellant’s request for merit review.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2007 and the August 29, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 4, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

16

Jaja K. Asaramo, 55 ECAB 200, 206 (2004).

5


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

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

Docket No. 13-718
Issued: June 20, 2013

Case Submitted on the Record

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

JURISDICTION
On February 6, 2013 appellant, through his representative, filed a timely appeal from a
January 14, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which denied his claim for a schedule award. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the case.
ISSUE
The issue is whether appellant established permanent impairment related to his accepted
injuries.
FACTUAL HISTORY
This case was previously before the Board. By decision dated February 22, 2012, the
Board affirmed OWCP’s April 28, 2011 decision that denied appellant’s claim that his left hip
1

5 U.S.C. § 8101 et seq.

avascular necrosis (AVN) condition and subsequent surgery or disability were causally related to
the accepted dog bite injury of August 24, 2009.2 The facts of the case as set forth in the prior
decision are hereby incorporated by reference.
On February 10, 2010 OWCP accepted appellant’s claim for dog bites to the left upper
thigh and right shin. On April 14, 2010 it also accepted left thigh sprain, left knee sprain and
trochanteric bursitis of the right thigh. On May 20, 2010 appellant underwent left hip
replacement surgery. He returned to light duties in mid-July 2010.
On June 17, 2011 appellant requested a schedule award, but no relevant medical
information was provided. In a June 27, 2011 letter, OWCP requested additional information
from his physician, Dr. Thomas Scharschmidt, a Board-certified orthopedic surgeon.
OWCP received two reports dated July 20, 2011 from Dr. Scharschmidt pertaining to
appellant’s AVN condition. Dr. Scharschmidt noted findings on examination and diagnosed
AVN. He opined that appellant had an underlying diagnosis of AVN which may have been
exacerbated by a fall at work. Dr. Scharschmidt noted that since appellant was not seen until
May 2010, it was difficult to determine the role the fall played in his condition. He also noted
that appellant had AVN of the femoral head which became acutely worse after his fall in
August 2009. Appellant was seen in May 2010 with the diagnosis of AVN with subchondral
collapse and underwent a total hip replacement in May 2010 for that condition.
Dr. Scharschmidt stated that appellant’s pain became acutely worse after his fall and it was
feasible that the fall caused exacerbation of his preexisting avascular necrosis or possibly the
subcondral collapse leading to surgery.
By decision dated September 7, 2011, OWCP denied appellant’s schedule award claim
finding that the medical evidence did not address how the accepted conditions related to the
August 24, 2009 dog bite caused or contributed to his left avascular necrosis.
Under claim file number xxxxxx973, OWCP accepted a September 8, 2011 work injury
for left knee and hand sprains and open wound of left knee. Appellant did not lose time from
work on account of the injury. Claim file number xxxxxx973 was subsequently doubled into the
instant claim.
On September 13, 2011 appellant, through counsel, requested a telephonic hearing, which
was held on December 15, 2011.
Appellant submitted medical records and diagnostic test results from The Ohio State
University Medical Center and reports from Dr. Matthew Beal, a Board-certified orthopedic
surgeon, and Dr. Martin Fritzhand, a Board-certified urologist.
In a February 1, 2012 report, Dr. Fritzhand reviewed a history of injury and set fourth
findings on examination. He opined that appellant had reached maximum medical improvement
by June 2011. Under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Fritzhand opined that appellant
2

Docket No. 11-1645 (issued February 22, 2012).

2

sustained 31 percent impairment of the left lower extremity and 12 percent impairment of the
right lower extremity as a result of the August 24, 2009 work injury. He stated that total hip
replacement under Table 16-4 of the A.M.A., Guides was used to assess the left hip impairment
and AVN under Table 16-4 of the A.M.A., Guides was used to assess the right hip impairment.
By decision dated February 29, 2012, OWCP’s hearing representative set aside the
September 7, 2011 decision and remanded the case for further development regarding the nature
and extent of appellant’s employment-related permanent impairment.
On remand, OWCP forwarded Dr. Fritzhand’s February 1, 2012 report, a statement of
accepted facts and the case record to an OWCP medical adviser for review. In a March 22, 2012
report, the medical adviser agreed with Dr. Fritzhand’s February 1, 2012 impairment rating and
stated that appellant reached maximum medical improvement in June 2011.
On May 2, 2012 OWCP determined a second opinion was necessary as both
Dr. Fritzhand and OWCP’s medical adviser provided an impairment rating based on appellant’s
underlying AVN condition which was not accepted as employment related.
OWCP referred appellant, together with a statement of accepted facts and the medical
record, to Dr. Manhal A. Ghanma, a Board-certified orthopedic surgeon, to determine the nature
and extent of any employment-related lower extremity impairment. In a May 22, 2012 report,
Dr. Ghanma noted the history of injury and provided findings on examination. He reported left
knee range of motion from 0 to 120 degrees flexion, with multiple small scars from dog bites,
which had healed. Dr. Ghanma noted that the healed five scars on the left knee measured two
centimeters (cm), one cm, two cm, one cm and 1 cm. There was no swelling or instability of the
left knee and appellant’s gait was normal. The right knee range of motion was from 0 to 130
degrees of flexion. The range of motion of the right hip was 0 to 110 degrees of flexion, 25
degrees internal rotation, 30 degrees external rotation, 30 degrees abduction and 20 degrees
adduction. The left hip was not tested for range of motion given the total hip replacement. It
was noted that there was no thigh scar from any dog bite in the left thigh region. Dr. Ghanma
opined that appellant reached maximum medical improvemet from the August 31, 2009 injury by
November 30, 2009 and was likely at maximum medical improvement for the August 8, 2011
injury by November 8, 2011. Based on the sixth edition of the A.M.A, Guides, he also opined
that appellant had zero percent (no) impairment due to the accepted conditions of left upper thigh
and right shin sprain, left knee sprain and right thigh/hip throchonteric bursitis, left knee sprain
and open wound of the left knee (dog bite) as they fell into class 0, which represented zero
percent lower extremity impairment. Dr. Ghanma utilized Table 16-3, page 509-11 of the
A.M.A., Guides for evaluation of the knee and thigh conditions and Table 16-54, page 512-15 of
the A.M.A., Guides for evaluation of the throchonteric bursitis of the right hip. He noted that
appellant had AVN of both hips that likely preexisted the work injury and his impairments and
limitations were related to the left total hip replacement and right hip AVN.
In a July 9, 2012 report, OWCP’s medical adviser reviewed Dr. Ghanma’s May 22, 2012
report and agreed that there was no permanent impairment to the lower extremities related to the
accepted employment-related conditions.
Appellant stopped work and underwent right total hip arthroplasty on June 28, 2012.

3

By decision dated July 19, 2012, OWCP denied a schedule award finding that appellant
had no permanent impairment related to the accepted employment injuries.
In a July 23, 2012 letter, appellant, through counsel, requested a telephonic hearing,
which was held on November 13, 2012. Counsel argued that since the AVN of the hips was a
preexisting condition, it should have been considered as the basis for a schedule award.
In an August 8, 2012 letter, Dr. Beal stated that he first saw appellant on May 24, 2011
with diagnosis of AVN of the right femoral head with mild collapse and mild secondary
osteoarthritis of the right hip. On March 9, 2012 appellant reported his pain had increased
considerably due to walking as a mail carrier. Repeat x-rays showed a progression of the AVN
in the right hip with collapse of the femoral head. Dr. Beal opined that appellant’s AVN and
osteoarthritis of the right hip were the result of the 2009 work injury and from day to day duties
of a mail carrier.
By decision dated January 14, 2013, OWCP’s hearing representative affirmed the
July 19, 2012 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim, including that he or she sustained an injury in the
performance of duty as alleged and that an employment injury contributed to the permanent
impairment for which schedule award compensation is alleged.3
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, must be one
of reasonable medical certainty and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by appellant.4
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. The A.M.A., Guides has
3

See Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant did not establish that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.
4

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

4

been adopted by the implementing regulations as the appropriate standard for evaluating
schedule losses.7 The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.8
It is well established that in determining the amount of a schedule award for a member of the
body that sustained an employment-related permanent impairment, preexisting impairments of
the body are to be included.9
ANALYSIS
OWCP accepted that on August 24, 2009 appellant sustained a dog bite to the left upper
thigh and right shin, left thigh sprain, left knee sprain and throchonteric bursitis of the right thigh
during the performance of duty. It also accepted, under claim file number xxxxxx973, that on
September 8, 2011, he sustained left knee and hand sprains and an open wound of the left knee
during the performance of duty. Claim file number xxxxxx973 was combined into the current
claim. Appellant requested that his claim be accepted for a left total hip arthroplasty due to AVN
of his hips. The Board, in its February 22, 2012 decision, affirmed the denial of the conditions of
AVN of the hip and total left hip replacement surgery.10 OWCP subsequently denied appellant’s
schedule award claim, finding that the medical evidence did not establish that he had any
impairment related to the accepted employment conditions. The Board finds that the record is
not sufficient to establish that he has any impairment caused by his accepted conditions.
The impairment opinion provided by Dr. Fritzhand in his February 1, 2012 report was
based on appellant’s underlying AVN condition, a nonaccepted condition pertaining to his hips.
Appellant must establish impairment to a scheduled member caused by the accepted condition
before impairment due to a preexisting or subsequent condition can be assessed.11 OWCP
properly referred him to Dr. Ghanma for a second opinion examination for a determination as to
whether appellant had any impairment due to his accepted conditions.
In a May 22, 2012 report, Dr. Ghanma reviewed the record and provided examination
findings. He determined that the accepted injury-related conditions had resolved. Under the
A.M.A., Guides, Dr. Ghanma determined that there was no permanent impairment due to the
accepted conditions to the thighs, shins or knees. Under the appropriate tables in the A.M.A.,
Guides, he found that the resolved accepted conditions were class 0, which represented zero
percent lower extremity impairment. OWCP’s medical adviser reviewed Dr. Ghanma’s report
and concurred with the conclusion. The Board finds that OWPC properly relied upon the report
of Dr. Ghanma and its medical adviser to deny appellant’s schedule award claim. Dr. Ghanma
provided a review of the medical evidence and examination findings and provided reasoning for
his conclusion that appellant had sustained no permanent impairment due to the accepted

7

Id.

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

See Dale B. Larson, 41 ECAB 481, 490 (1990).

10

Appellant underwent a right total hip arthroplasty on June 28, 2012.

11

See generally Thomas P. Lavin, 57 ECAB 353 (2006).

5

injuries.12 Furthermore, there is no report from appellant’s physicians which indicate that the
accepted conditions are still active.
The Board also notes that in August 2011 the Secretary of Labor added skin to the list of
scheduled members. A schedule award for the skin (205 weeks) may be paid for injuries
occurring on or after September 11, 2001.13 While Dr. Ghanma noted that appellant had five
small scars on the left knee, measuring from one to two cm, he noted that they had healed. In
evaluating permanent impairment of the skin, pursuant to Table 8-2 of the A.M.A., Guides,14
physical examination findings, with symptoms, must be present, before a skin disorder is ratable.
As Dr. Ghanma reported that the scars had healed, and did not report any ongoing symptoms, the
evidence of record does not establish that appellant has a ratable permanent impairment of the
skin.
Regarding appellant’s bilateral hip conditions, Dr. Ghanma stated that appellant’s AVN
of both hips preexisted the work injury. Appellant must establish impairment to a scheduled
member caused by the accepted condition before an impairment due to a preexisting or
subsequent condition can be assessed.15 His treating physicians, Dr. Scharschmidt and Dr. Beal
opined that appellant’s hip conditions were work related, but neither physician offered adequate
medical rationale to explain how his dog bite injury to the knee, shins or thighs contributed to
AVN of the hips. Dr. Scharschmidt’s opinion that it was feasible that the work incident
exacerbated the conditions is speculative, at best. Dr. Beal offered insufficient medical rationale
to support his conclusion that appellant’s hip conditions were work related. While appellant has
evidence of preexisting avascular necrosis, which Dr. Ghanma noted during his second opinion
evaluation, which resulted in total hip replacement and osteoarthritis, these conditions have not
been accepted. As previously noted, he must establish impairment to a scheduled member
caused by the accepted condition before impairment due to a preexisting or subsequent condition
can be assessed.
For these reasons, appellant did not show that he was entitled to schedule award
compensation and OWCP properly denied his claim.
On appeal, appellant argues OWCP’s decision is contrary to fact and law. There is no
probative medical evidence of record establishing that he sustained a permanent impairment to
either lower extremity resulting from his accepted conditions.

12

Michael S. Mina, 57 ECAB 379 (2006).

13

20 C.F.R. § 10.404(b); Federal (FECA) Procedure Manual, Part 2, supra note 7 at 2.808.5(c)(a) Chapter 8 in
the A.M.A., Guides outlines specific criteria to be considered when calculating permanent impairment of the skin.
In assessing skin impairment, the physician must evaluate the severity of the condition, the frequency, intensity and
complexity of the medical condition and treatment regimen and the impact of the condition on the ability to perform
Activities of Daily Living (ADLs). ADLs include bathing, dressing, eating, personal hygiene, etc. See also L.M.,
Docket No. 13-476 (issued May 1, 2013).
14

A.M.A, Guides, Table 8-2 166.

15

See generally Thomas P. Lavin, 57 ECAB 353 (2006).

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Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish entitlement to
a schedule award for permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Edinburg, TX, Employer
__________________________________________

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

Docket No. 18-0285
Issued: September 26, 2019

Case Submitted on the Record

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

JURISDICTION
On November 27, 2017 appellant, through counsel, filed a timely appeal from a
November 3, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 15 percent
permanent impairment of the left eye, for which he previously received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On February 27, 2013 appellant, then a 40-year-old supervisory border patrol agent, filed
a traumatic injury claim (Form CA-1) alleging a left eye injury after a tree branch struck him when
tracking through a wooded area while in the performance of duty. OWCP accepted his condition
for superficial injury of the left cornea and central opacity of the left cornea. Appellant did not
stop work.
On August 7, 2013 Dr. John D. Goosey, a Board-certified ophthalmologist, performed a
lamellar keratoplasty of the left eye and diagnosed central corneal scar of the left eye.
On November 13, 2014 appellant filed a claim for a schedule award (Form CA-7).
On February 24, 2015 OWCP referred appellant for a second opinion to Dr. Thomas P.
Dowhan, a Board-certified ophthalmologist, for a determination of whether appellant had
permanent impairment attributable to his accepted conditions. In a report dated April 20, 2015,
Dr. Dowhan noted a history of appellant’s work-related condition and subsequent treatment. He
indicated that appellant was struck in the left eye by a tree branch while working. Dr. Dowhan
noted the injury left appellant with a superficial scar causing visual impairment. He advised that
appellant underwent lamellar keratoplasty to correct the condition and restore vision. Appellant
reported a significant decrease in vision in the left eye and photophobia on days when the sun was
bright. Dr. Dowhan indicated that maximum medical improvement (MMI) occurred on
August 7, 2013. He noted physical findings of corrected visual acuities of 20/20 oculus dexter
(OD) and 20/600 oculus sinister (OS); intraocular pressures were 17 oculus uterque (OU); pupils
were equal, round, and reactive to light OU; ocular motility was normal; slit lamp examination
revealed the anterior segment OD to be normal; the slit lamp examination OS showed multiple
punctuate epithelial and subepithelial spots scattered across the central corneal graph region; there
was some general depression of the field OS without significant loss in any quadrant; and overall
the field was generally normal. Dr. Dowhan noted that following surgery appellant showed signs
of graft rejection, but after medical management his condition stabilized. He diagnosed corneal
scar and central opacities. Dr. Dowhan indicated that he had no records predating the injury, but
based on a history from appellant he had uncorrected visual acuities of 20/20 in each eye following
a Lasik procedure 10 years prior to the left eye injury. He opined that pursuant to the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment

3

Docket No. 17-0038 (issued June 8, 2017).

2

(A.M.A., Guides),4 Table 12-25 and Table 12-3,6 Impairment of Visual Acuity, appellant had 75
percent impairment of the left eye. The impairment rating for the right eye was zero. Dr. Dowhan
further opined that the acuity-related impairment rating for both eyes was 15.
In a September 30, 2015 report, Dr. David I. Krohn, Board-certified in internal medicine
and serving as a district medical adviser (DMA), indicated that Dr. Dowhan failed to provide letter
chart acuity specifically for binocular vision. He requested that Dr. Dowhan provide a visual
acuity score (VAS) so that acuity-related impairment could be accurately rated.
On October 5, 2015 OWCP requested that Dr. Dowhan provide a VAS for both eyes. On
November 19, 2015 Dr. Dowhan noted that the best corrected acuities OU was 20/20, OD was
20/20, and OS was 20/600. Dr. Dowhan opined that, pursuant to the A.M.A., Guides, Table 12-2
and Table 12-3, the functional acuity score (FAS) was 85. He diagnosed visual loss of left eye
due to corneal opacity. Dr. Dowhan calculated 15 percent permanent visual impairment.
In a January 18, 2016 report, the DMA noted that lamellar keratoplasty was performed to
the left eye on August 7, 2013 and postoperatively a low level rejection of the corneal graft was
documented. He agreed with Dr. Dowhan’s impairment rating determination of 15 percent visual
impairment of the left eye. The DMA applied Table 12-2 and Table 12-3 of the A.M.A., Guides
to find a VAS of 25 for the left eye, 100 for the right eye, and 100 binocularly. To obtain the FAS,
he multiplied the right eye VAS of 100, by 1 to equal 100, he multiplied the left eye VAS of 25 by
1 to equal 25. The DMA multiplied the binocular VAS of 100 by 3 to equal 300. He then added
the sum of each VAS (100 + 25 + 300) to equal 425, which was divided by 5 to attain the final
FAS of 85. Subtracting the FAS of 85 from 100 resulted in 15 percent permanent impairment of
the left eye pursuant to page 289 of the A.M.A., Guides. The DMA opined that MMI occurred on
May 2, 2014, the date the condition of graft rejection of the left eye stabilized.
By decision dated February 10, 2016, OWCP granted appellant a schedule award for 15
percent permanent impairment of the left eye. The period of the award ran for a period of 24 weeks
from May 2 to October 16, 2014.
Appellant submitted a March 9, 2016 report from Dr. Dowhan who treated him for left eye
pain, sticky left eye, and headaches from blurred vision which was worse over the preceding week.
Dr. Dowhan diagnosed pain in the left eye, foreign body in cornea of left eye, blurred vision,
history of cornea transplant, history of photophobia of the left eye, and cornea edema. He noted
removing the exposed part of a suture.
On August 9, 2016 appellant, through counsel, requested reconsideration. Counsel
submitted a report from Dr. Ronald H. Krasney, a Board-certified ophthalmologist, and noted that
based on this new evidence an increased schedule award was warranted. In his July 5, 2016 report,
Dr. Krasney noted a history of appellant’s injury and medical treatment. He noted that appellant
experienced a difficult postoperative course with early signs of graft rejection which explained his
4

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

5

Table 12-2, page 288 of the A.M.A., Guides is titled Impairment of Visual Acuity.

6

Table 12-3, page 289 of the A.M.A., Guides is titled Calculation of the Acuity-Related Impairment Rating.

3

persistent photophobic symptoms and persistent corneal opacities. Dr. Krasney referenced the
DMA’s note which considered permanent impairment based on visual acuity in both eyes. He
advised, however, that this rating method was insufficient to rate the impairment in the left eye
which includes loss of stereopsis. Dr. Krasney indicated that his “own personal comment on this
matter is how anyone would feel if they had two of something and now only had one that is
functioning.” He further noted that, “to most anyone, this would be at least 50 percent loss and if
it were one’s own personal situation this loss might be considered even more severe.”
By decision dated September 23, 2016, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant a merit review.
Appellant, through counsel, appealed to the Board on October 17, 2016. By decision dated
June 8, 2017, the Board set aside the September 23, 2016 decision finding that OWCP had
improperly denied appellant’s request for reconsideration of the merits of his claim pursuant to 5
U.S.C. § 8128(a).7 The Board remanded the case for OWCP to perform any further development
deemed necessary, complete a merit review, and issue an appropriate decision on his claim.
Appellant submitted additional reports from Dr. Dowhan dated March 27 to July 17, 2017.
In these report’s Dr. Dowhan diagnosed epidemic keratoconjunctivitis of the left eye improving,
pain of left eye improving, corneal epithelial defect improving, foreign body in cornea of left eye,
sequela improving, blurred vision left eye stable, history of cornea transplant stable, and cornea
edema stable. He removed sutures and prescribed a prednisone taper.
In an undated report received by OWCP on August 29, 2017, Dr. Dowhan noted
appellant’s history of injury and indicated that at appellant’s last visit his uncorrected visual
acuities was 20/25 in the right eye and he was legally blind in the left eye with visual acuities of
20/600. Appellant reported continued symptoms of chronic pain of the left eye and photophobia.
Dr. Dowhan opined that pursuant to the A.M.A., Guides his impairment using the FAS showed
that appellant had 15 percent visual impairment, but he advised that a FAS did not address the fact
that appellant had no depth perception. He noted that appellant would score zero on the steropsis
test and he has diminished visual field in the left eye and this was not reflected in the FAS.
Dr. Dowhan noted that to address appellant’s actual disability he believed that account should be
taken of the specific requirement of an individual’s job. He noted that appellant’s job as a border
patrol agent was significantly compromised because of the loss of the left eye and made it unsafe
for him to continue in his present job given his functional disability and disability with respect to
the physical demands of his job.
By decision dated November 3, 2017, OWCP performed a merit review and denied
modification of the February 10, 2016 decision.

7

Supra note 3.

4

LEGAL PRECEDENT
It is the claimant’s burden of proof to establish that he or she sustained permanent
impairment of a scheduled member or function of the body as a result of any employment injury.8
The schedule award provisions of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members, organs, or functions of the body.11 For 100 percent loss
of an eye, as with blindness, FECA provides a maximum 160 weeks of compensation.12 A loss of
80 percent or more of the vision of an eye is considered the same as loss of the eye.13 Partial losses
are compensated proportionately.14
Such loss or loss of use is known as permanent impairment. OWCP evaluates the degree
of permanent impairment according to the standards set forth in the specified edition of the
A.M.A., Guides. For decisions issued after May 1, 2009, the sixth edition is used to calculate
schedule awards.15
Although the A.M.A., Guides provides that impairment ratings should be based on the bestcorrected visual acuity,16 FECA mandates that the degree of loss of vision must be determined
without regard to correction.17
The sixth edition of the A.M.A., Guides indicates that the evaluation of visual impairment
is based on the functional vision score (FVS), which is the combination of an assessment of visual
acuity, the ability of the eye to perceive details, necessary for activities such as reading and an
assessment of visual field, the ability of the eye to detect objects in the periphery of the visual
environment, which relates to orientation and mobility.18 The A.M.A., Guides also allows for
individual adjustments for other functional deficits, such as contrast and glare sensitivity, color
8

See T.O., Docket No. 18-0659 (issued August 8, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Supra note 11.

12

Id. at § 8107(c)(5).

13

Id. at § 8107(c)(14).

14

Id. at § 8107(c)(19).

15
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (March 2017).
16

A.M.A., Guides 287, Chapter 12.2c.

17

5 U.S.C. § 8107(c)(19).

18

A.M.A., Guides (6th ed. 2009) at 282, 285.

5

vision defects and binocularity, stereopsis, suppression and diplopia, only if these deficits are not
reflected in a visual acuity or visual field loss.19 The A.M.A., Guides, however, specifically limits
adjustment of the impairment rating for these deficits to cases which are well documented and
provides, the “adjustment should be limited to an increase in the impairment rating of the visual
system (reduction of the FVS) by, at most, 15 points.”20
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than 15
percent permanent impairment of the left eye, for which he previously received a schedule award.
Following remand to OWCP appellant submitted additional medical evidence. In an
undated report received on August 29, 2017, Dr. Dowhan indicated that at appellant’s last visit his
uncorrected visual acuities was 20/25 in the right eye and 20/600 in the left eye. He indicated that
appellant was legally blind in the left eye and opined that pursuant to the A.M.A., Guides his
impairment using the FAS showed that appellant had 15 percent visual impairment. However,
Dr. Dowhan advised that a FAS did not address the fact that appellant had no depth perception.
He noted that appellant would score zero on the steropsis test with diminished visual field in the
left eye which was not reflected in the FAS. Dr. Dowhan noted that to address appellant’s actual
disability he believed that you had to take into account specific requirements of appellant’s job as
a border patrol agent. He opined that appellant was significantly compromised because of the loss
of the left eye and made it unsafe for him to continue in his present job given his functional
disability. However, the Board finds that, while Dr. Dowhan reported a left eye impairment and
the impact on appellant’s ability to perform the duties of his employment, he did not provide a
rating of impairment in accordance with the standards adopted by OWCP and approved by the
Board for evaluating schedule losses. Although the A.M.A., Guides allows for individual
adjustments for other functional deficits such as stereopsis, it is only in cases where the deficits
are not reflected in a visual acuity or visual field loss21 and is limited to cases which were well
documented. The relevant standards of the A.M.A., Guides do not take into account specific
requirements of a claimant’s job description in rating impairment as proposed by Dr. Dowhan.22
This interpretation of the A.M.A., Guides is inconsistent with the standards adopted by OWCP.
The Board finds that there is no medical evidence of record, which conforms to the A.M.A.,
Guides, which establishes that appellant has more than 15 percent permanent impairment of the
left eye. The Board therefore finds that appellant has not met his burden of proof to establish his
claim for an increased schedule award.

19

Id. at 305.

20

Id.

21

Id.

22

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

6

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 15
percent permanent impairment of the left eye, for which he previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 3, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Richmond, VA, Employer
__________________________________________

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Appearances:
Charles W. Jackson, for the appellant
Office of Solicitor, for the Director

Docket No. 10-37
Issued: July 7, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 5, 2009 appellant filed an appeal of an April 27, 2009 nonmerit decision of
the Office of Workers’ Compensation Programs denying her request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit
decision. The most recent merit decision of record was a September 10, 2008 decision denying
her occupational disease claim. The Board lacks jurisdiction to review the merits of this claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3 (2008).

FACTUAL HISTORY
On February 25, 2008 appellant, then a 52-year-old nursing assistant, filed a traumatic
injury claim alleging that she experienced emotional stress and an elevated blood pressure as a
result of mental abuse by a coworker on April 25, 2007. On April 25, 2008 the Office requested
additional information and evidence supporting her claim. Having received no additional
evidence, it denied appellant’s claim in a May 30, 2008 decision.
On May 30, 2008 appellant requested reconsideration. She submitted hospital records
dated April 25 through 28, 2007 reflecting that she was admitted for a presyncopal episode
associated with hypertension. On April 27, 2007 Dr. Miriam P. Garcia, a Board-certified family
practitioner, noted that appellant had a sudden onset of headaches with dizziness, as well as some
element of anxiety. She diagnosed cerebrovascular insufficiency/ischemic event.
Appellant also submitted reports from Dr. Richard Curtis, a Board-certified psychiatrist.
In a March 20, 2008 attending physician’s report, Dr. Curtis diagnosed post-traumatic stress
disorder (PTSD) and placed a checkmark in the “yes” box that her condition was caused or
aggravated by employment activities. He stated that appellant “was treated inappropriately at
work in a sexual way and symptoms have worsened.” On June 17, 2008 Dr. Curtis advised that
she had a prior history of PTSD following a brutal rape. He reiterated that appellant’s condition
was related to her employment, stating that she had recently seen “inappropriate behavior from
another employee while at work.”
On August 7, 2008 the Office asked appellant to provide further details regarding the
alleged April 25, 2007 incident, as well as evidence to support her claim.
In an April 27, 2007 “Report of Contact” Denise A. Coleman, a registered nurse, stated
that appellant had been hospitalized due to “some sort of seizure disorder that was brought on by
stress.” Describing the alleged events of April 25, 2007, appellant stated that she had observed
her boyfriend, a coworker, kissing a patient in her room. Upon deciding to report him to the
police, appellant felt dizzy. She admitted yelling at the patient and slapping her boyfriend.
An April 26, 2007 investigative report reflected that appellant, her boyfriend and the
patient were involved in an altercation on April 25, 2007. Her boyfriend stated that appellant
yelled at the patient and approached her like a mad woman when she saw him putting food on
the patient’s table. When he tried to calm her down, appellant struck him on the side of his face
with her open hand.
In an August 18, 2008 report, Tom Mullens, a licensed clinical social worker, stated that
appellant was receiving counseling for PTSD, which resulted from a brutal rape. He indicated
that she was traumatized in April 2007 while at work, when she witnessed her boyfriend kissing
a female patient. Mr. Mullens stated that the incident exacerbated her symptoms of pervasive
anxiety.
In a September 4, 2005 statement, appellant contended that she was mistreated on
April 25, 2007. The shock of seeing her boyfriend kissing a patient in a sexual way caused her
blood pressure to rise.

2

In a September 10, 2008 decision, the Office denied modification of its prior decision on
the grounds that the evidence was insufficient to establish that appellant sustained an injury in
the performance of duty. It accepted that on April 25, 2007 appellant saw her boyfriend kissing
a patient; became upset and yelled at the patient; and slapped her boyfriend. The Office found,
however, that she failed to establish a compensable factor of employment. It determined that she
had not been mistreated at the employing establishment. The Office found that the accepted
incident did not relate to her assigned duties, but rather was a personal matter that had been
imported to the workplace. Noting that an investigation was an administrative matter, it found
the evidence insufficient to establish that the employing establishment erred in any way.
On April 7, 2009 appellant requested reconsideration. In support of her request, she
submitted medical notes and reports, including those from Tucker Psychiatric from October 31,
2005 through January 19, 2009 and from the Richmond Veterans Administration Medical Center
dated April 25, 2007.
By decision dated April 27, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was insufficient to warrant further review of the
case on the merits. It found that she failed to provide any factual evidence to support a
compensable work factor.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.3 To be entitled to a merit review of an Office 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.4 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.5 The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.6

2

5 U.S.C. §§ 8101-8193 under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application Id. at § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

3

ANALYSIS
Appellant’s April 7, 2009 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, appellant
did not advance a relevant legal argument not previously considered by the Office.
Consequently, 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)(2).
The Board finds that appellant failed to submit relevant and pertinent new evidence not
previously considered by the Office. The Office’s denial of appellant’s claim was based on its
determination that she did not establish a compensable factor of employment. Therefore, the
underlying issue in the case was factual in nature. In support of her request for reconsideration,
appellant submitted medical notes and reports, including those from Tucker Psychiatric and the
Richmond Veterans Administration Medical Center. The Office is not required to consider
medical evidence in an emotional condition case where no work factors have been established.7
The medical evidence submitted by appellant is not relevant to the underlying issue in this case.
The Board has held that the submission of evidence which does not address the particular issue
involved does not constitute a basis for reopening a case.8
Appellant did not submit any relevant and pertinent new evidence not previously
considered by the Office in support of her request for reconsideration. Further, she did not show
that the Office erroneously applied or interpreted a specific point of law or advance a relevant
legal argument not previously considered by the Office. As appellant did not meet any of the
necessary regulatory requirements, the Board finds that the Office properly denied merit review.9
On appeal, appellant contends that her stress-related injury occurred at work while in the
performance of duty. The issue for determination is whether the Office properly refused to
reopen appellant’s case for further review of the merits. As noted, the Board finds that the
Office properly denied appellant’s request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further merit
review.

7

See Richard Yadron, 57 ECAB 207 (2005).

8

Patricia G. Aiken, 57 ECAB 441 (2006).

9

See James E. Norris, 52 ECAB 93 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 27, 2009 is affirmed.
Issued: July 7, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 19-0929
Issued: October 17, 2019

Case Submitted on the Record

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

JURISDICTION
On March 27, 2019 appellant, through counsel, filed a timely appeal from a March 8, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the March 8, 2019 decision, OWCP received additional evidence. 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 evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability for
intermittent periods between June 8, 2017 and March 2, 2018 and for the period March 16 to
June 8, 2018 causally related to her accepted employment injuries.
FACTUAL HISTORY
On April 25, 2016 appellant, then a 55-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained injuries to her upper extremities due to factors of
her federal employment. She asserted that, for the past nine and a half years, she had delivered
mail five days per week, eight hours per day. Appellant noted that she first became aware of her
claimed condition on January 25, 2016 and first realized its relation to her employment on
April 11, 2016. She initially stopped work on June 8, 2017.
By decision dated April 25, 2018, OWCP accepted appellant’s claim for the conditions of
bilateral carpal tunnel syndrome and bilateral primary osteoarthritis of the first carpometacarpal
joints of the hands.
On May 2, 2018 appellant filed a claim for compensation (Form CA-7) claiming wage-loss
compensation for intermittent periods of work stoppage between June 8, 2017 and March 2, 2018
and for total work stoppage during the period March 16 to April 27, 2018. She later filed forms
claiming wage-loss compensation for total work stoppage for the period April 28 to
August 3, 2018.
Appellant submitted a September 10, 2018 report from Dr. Pam K. Janda, a Board-certified
internist, who provided an opinion that appellant had disability from June 9 to September 26, 2018
due to her bilateral carpal tunnel syndrome.
By decision dated September 24, 2018, OWCP accepted appellant’s wage-loss
compensation claim for the period June 9 to August 3, 2018 based on Dr. Janda’s September 10,
2018 report. However, it denied her claim for intermittent periods between June 8, 2017 and
March 2, 2018 and for the period March 16 to June 8, 2018 as she had not submitted medical
evidence sufficient to establish causal relationship between these periods of disability and her
accepted employment injuries.
On October 1, 2018 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. During the January 22, 2019 hearing,
she testified that she intermittently stopped work between June 8, 2017 and March 2, 2018 and
totally stopped work from March 16 to June 8, 2018 due to severe pain in her hands.
After the hearing, appellant submitted January 7, 8, and 22, 2019 progress reports and
authorization forms completed by Simranjit Kaur, a nurse practitioner, and an undated and
unsigned State of California treating physician report, which contained the diagnosis of bilateral
carpal tunnel syndrome.
By decision dated March 8, 2019, OWCP’s hearing representative affirmed OWCP’s
September 24, 2018 decision.
2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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 timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty, as alleged,
and that any disability or specific condition for which compensation is claimed is causally related
to the employment injury.4
In general, the term “disability” under FECA means incapacity because of injury in
employment to earn the wages, which the employee was receiving at the time of such injury. 5 This
meaning, for brevity, is expressed as disability from work.6
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. 7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability for
intermittent periods between June 8, 2017 and March 2, 2018 and for the period March 16 to
June 8, 2018 causally related to her accepted employment injuries.
In a December 13, 2017 report, Dr. Galli opined that appellant’s upper extremity conditions
were related to employment factors. However, he did not provide an opinion on appellant’s disability
from work. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s disability is of no probative value on the issue of causal relationship. 8
Therefore, Dr. Galli’s report is insufficient to establish appellant’s claim.
Appellant submitted January 7, 8, and 22, 2019 progress reports and authorization forms
completed by Mr. Kaur, a nurse practitioner. However, these documents are of no probative value

4

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

5

See 20 C.F.R. § 10.5(f).

6

See S.W., supra note 4. See also A.M., Docket No. 09-1895 (issued April 23, 2010); Roberta L. Kaaumoana, 54
ECAB 150 (2002).
7

E.J., Docket No. 09-1481 (issued February 19, 2010).

8

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

3

on the underlying issue of this case because nurse practitioners are not considered physicians as
defined under FECA and their reports are not considered to be probative medical evidence. 9
As the record does not contain a rationalized medical opinion relating appellant’s disability
during the claimed periods of disability to her accepted employment injuries, the Board finds that
appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability for
intermittent periods between June 8, 2017 and March 2, 2018 and for the period March 16 to
June 8, 2018 causally related to her accepted employment injuries.

9

Id. See M.C., Docket No. 16-1238 (issued January 26, 2017). Appellant also submitted an undated and unsigned
State of California treating physician report, but the Board has held that unsigned reports cannot be considered
probative medical evidence because they lack proper identification. See R.C., Docket No. 18-1639 (issued
February 26, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 17, 2019
Washington, DC

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

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

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

5