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

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

Docket No. 11-29
Issued: August 17, 2011

Case Submitted on the Record

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

JURISDICTION
On October 4, 2010 appellant, through her attorney, filed a timely appeal of a June 16,
2010 Office of Workers’ Compensation Programs’ (OWCP) schedule award decision. 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 the schedule award case.
ISSUE
The issue is whether appellant has more than five percent impairment of her right upper
extremity for which she has received a schedule award.
On appeal counsel argued that the impartial medical examiner failed to provide an
explanation supporting his impairment rating.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 28, 1983 appellant, then a 50-year-old postal clerk, filed an occupational
disease alleging that on June 11, 1983 she became aware of her condition of carpal tunnel
syndrome. She first attributed this condition to her work on September 13, 1983. Dr. Veena
Sawhney, a physician Board-certified in physical medicine and rehabilitation, conducted
electrodiagnostic studies on September 8, 1983 and found moderately severe compromise of the
right median nerve across the wrist and diagnosed right carpal tunnel syndrome. Dr. E. Rachlin,
a Board-certified orthopedic surgeon, performed a right carpal tunnel surgical release on
August 1, 1984.
By decision dated November 5, 1984, OWCP denied appellant’s claim finding that she
had not established a causal relationship between her condition and employment duties. The
Branch of Hearings and Review vacated the November 5, 1984 decision on April 29, 1985 and
remanded the case for additional development of the medical evidence. OWCP accepted
appellant’s claim for right carpal tunnel syndrome on May 10, 1985.
Dr. David Weiss, a Board-certified orthopedic surgeon, examined appellant on July 30,
1999 and noted her history of injury and medical history. He examined appellant’s right hand
and found thenar atrophy with full range of motion of the fingers and thumb. Dr. Weiss stated
that sensory examination failed to reveal any perceived dermatomal abnormalities. He found
that right hand grip strength was 24 kilograms (kg) while left hand was 34 kg, noting that
appellant was right hand dominant. Dr. Weiss noted that appellant reported intermittent tingling
in her right hand which woke her from sleep. He applied the fourth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment and found 10 percent
impairment of the right upper extremity.2
OWCP’s medical adviser reviewed this report on November 17, 2003 and stated that
appellant’s schedule award should be assessed under the fifth edition of the A.M.A., Guides. He
opined that, under the appropriate edition of the A.M.A., Guides, appellant had five percent
impairment for grade 3 motor impairment.
OWCP found a conflict of medical opinion between Dr. Weiss and the medical adviser
referred appellant, a statement of accepted facts and list of questions for an impartial medical
opinion evaluation with Dr. George P. Glenn, a Board-certified orthopedic surgeon. In his
February 10, 2004 report, Dr. Glenn reviewed the statement of accepted facts and appellant’s
medical history. He found that appellant had no numbness in the right hand, but did experience
weakness. Dr. Glenn found no thenar muscle atrophy and adequate strength. He noted that
appellant had no evidence of sensory deficit with preserved two-point discrimination. Dr. Glenn
stated that appellant’s abductor muscle strength approached but did not equal normal. He
utilized Table 16-11 and found that appellant had a grade 4 impairment ranging from 1 to 25

2

A.M.A., Guides 57, Table 16 (4th ed. 1999).

2

percent3 or 2.5 percent impairment4 under the fifth edition of the A.M.A., Guides5 due to motor
deficit involving the right thumb abductor. Dr. Glenn stated that appellant had reached
maximum medical improvement.
A new medical adviser reviewed the record on December 21, 2005 and stated that
Dr. Glenn’s report was sufficient to establish motor loss. He noted that the original medical
adviser gave two impairment ratings, and suggested that the larger, five percent, should be used.
By decision dated July 27, 2007, OWCP granted appellant a schedule award for five
percent impairment of the right upper extremity.
Counsel requested an oral hearing on August 7, 2007. The Branch of Hearings and
Review considered OWCP’s July 27, 2007 decision and found it not in posture. The hearing
representative remanded the case for additional development of the medical evidence finding that
Dr. Glenn’s report was not sufficiently detailed to constitute the weight of the medical evidence
and required a supplemental opinion addressing appellant’s permanent impairment.
Dr. Glenn completed a supplemental report on April 8, 2008 and recommended
additional electrodiagnostic testing. On August 28, 2008 he reviewed the studies and stated that
there was evidence of a borderline median neuropathy bilaterally equating to the minimal
evidence of a residual alteration in the median nerve conduction studies and electromyogram.
Dr. Glenn found that appellant had residual weakness in the abductor muscle strength. He stated
that, utilizing Table 16-11 of the A.M.A., Guides, appellant had a grade 4 motor deficit with a
range of 1 to 25 percent. Dr. Glenn stated that obviously this is a minimal more strength deficit
equated to five percent. He stated that in accordance with Table 16-15 the maximum upper
extremity impairment for medical nerve motor deficit was 10 percent. Dr. Glenn concluded that
appellant had five percent impairment of the right upper extremity.
The medical adviser, Dr. Andrew A. Merola, reviewed this report on September 21, 2008
and listed Dr. Glenn’s findings. In a supplemental report dated October 8, 2008, Dr. Merola
stated that appellant had 10 percent impairment of the right upper extremity. On October 19,
2008 he stated that Dr. Glenn properly concluded that appellant had five percent impairment of
the right upper extremity.
By decision dated October 21, 2008, OWCP found that appellant had no more than five
percent impairment of her right upper extremity. Counsel requested an oral hearing, but awarded
this request to a review of the written record on March 31, 2010.
In a decision of June 16, 2010, OWCP’s hearing representative found that Dr. Glenn’s
report was entitled to the weight of the medical evidence and established that appellant had no
more than five percent impairment of her right upper extremity.

3

Id. at 484, Table 16-11 (5th ed. 2001).

4

Id. at 492, Table 16-15.

5

Id. at 5th ed. 2001.

3

LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use, of scheduled members or functions of the body. The FECA, however, does
not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a matter which rests in the discretion of OWCP.
For consistent results and to ensure equal justice, the Board has authorized the use of a single set
of tables so that there may be uniform standards applicable to all claimants. OWCP evaluates
the degree of permanent impairment according to the standards set forth in the specified edition
of the A.M.A., Guides.8
In evaluating carpal tunnel syndrome, the A.M.A., Guides provide that, if after an
optimal recovery time following surgical decompression, an individual continues to complain of
pain, paresthesias or difficulties in performing certain activities three possible scenarios can be
present. The first situation is: Positive clinical finding of median nerve dysfunction and
electrical conduction delay(s): The impairment due to residual carpal tunnel syndrome (CTS) is
rated according to the sensory and/or motor deficits as described earlier.9 In this situation, the
impairment due to residual CTS is evaluated by multiplying the grade of severity of the sensory
or motor deficit by the respective maximum upper extremity impairment value resulting from
sensory or motor deficits of each nerve structure involved. When both sensory and motor
functions are involved the impairment values derived for each are combined. In the second
scenario there is normal sensibility and opposition strength with abnormal sensory and/or motor
latencies or abnormal EMG testing of the thenar muscles, a residual CTS is still present and an
impairment rating not to exceed five percent of the upper extremity may be justified. The final
scenario is normal sensibility (two-point discrimination and Semmes-Weinstein monofilament
testing), opposition strength and nerve conduction studies, in which case there is no objective
basis for an impairment rating.10
ANALYSIS
Appellant’s claim was accepted for right carpal tunnel syndrome. She requested a
schedule award and submitted a report from Dr. Weiss dated July 30, 1999 finding that she had
10 percent impairment of the right upper extremity in accordance with the fourth edition of the
A.M.A., Guides. OWCP’s medical adviser found on January 17, 2003 that appellant had five
percent impairment under the fifth edition of the A.M.A., Guides. Due to this disagreement in
6

5 U.S.C. §§ 8101-8193, 8107.

7

20 C.F.R. § 10.404.

8

A.M.A., Guides, 5th ed. (2001). This edition of the A.M.A., Guides was applicable to decisions issued from
February 1, 2001 through April 30, 2009. Joseph Lawrence, Jr., 53 ECAB 331 (2002). Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter 2.808.6a (January 2010);
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
9

A.M.A., Guides 495.

10

Silvester DeLuca, 53 ECAB 500 (2002). A.M.A., Guides 495.

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the medical evidence regarding the extent of appellant’s permanent impairment for schedule
award purposes, there was a conflict of medical opinion evidence. 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.11 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.12 The Board finds that OWCP properly referred appellant to Dr. Glenn to
determine the extent of appellant’s permanent impairment.
In his reports Dr. Glenn examined appellant and provided impairment ratings. In the
supplemental report, he reviewed appellant’s electrodiagnostic studies and found that she had
evidence of residual alteration in the median nerve conduction studies. Based on this testing,
appellant’s right CTS is appropriately evaluated by determining the extent of motor impairment
and multiplying this number by the maximum value of the median nerve. On physical
examination he found no evidence of sensory deficit with preserved two-point discrimination.
Dr. Glenn found a loss of motor strength in the right thumb abductor. He utilized Table 16-11
and found that appellant had grade 4 impairment, which is complete active range of motion
against gravity with some resistance with a range of motor deficit from 1 to 25 percent.13
Dr. Glenn multiplied the percentage of motor deficit by the maximum value for median nerve
motor deficit of 10 percent to reach 2.5 percent impairment.14
The Board finds that Dr. Glenn’s opinion is entitled to the special weight of the medical
evidence and establish that appellant has no more than five percent impairment of her right upper
extremity for which appellant has received a schedule award. Dr. Glenn’s reports were based on
an accurate history of injury, complied with the appropriate fifth edition of the A.M.A., Guides
and included the necessary physical findings and references to the A.M.A., Guides, to enable the
Board to recreate his reasoning and duplicate his findings.15 For these reasons, the Board finds
that the weight of the medical evidence establishes that appellant has no more than five percent
impairment of her right upper extremity for which she has received a schedule award.
On appeal, counsel argued that the medical evidence was not sufficient to establish
appellant’s impairment rating. Based on Dr. Glenn’s reports and the review of the medical
advisers, the Board finds that the medical evidence of record clearly establishes that appellant
had no more than five percent impairment of her right upper extremity.
11

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

12

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

13

Supra note 3.

14

Supra note 4.

15

Although the final schedule award decision by the hearing representative was issued after the effective date
(May 1, 2009) of the use of the sixth edition of the A.M.A., Guides, it is appropriate as the decision simply affirms a
previous award under the fifth edition. See FECA -- Bulletin No. 09-03, dated March 15, 2009.

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Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than five percent impairment of her right
upper extremity for which she has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 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
_________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trenton, NJ, Employer
__________________________________________

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

Docket No. 12-880
Issued: February 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 13, 2012 appellant, through her attorney, filed a timely appeal from the
December 19, 2011 Office of Workers’ Compensation Programs’ (OWCP) decision, which
denied certain conditions as causally related to her accepted employment injuries. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her claim should
be expanded to include additional conditions.
FACTUAL HISTORY
On December 10, 2007 appellant, then a 34-year-old clerk, filed an occupational disease
claim alleging that she developed osteoarthritis from standing on a cement floor while working
from three to six hours a day in October 2007. She explained that October 8, 2007 x-rays
1

5 U.S.C. § 8101 et seq.

showed both knees were “bone-on-bone.” Appellant had no problems until management
removed the stools from where she worked and she could not relieve her discomfort by sitting.
The employing establishment controverted the claim. It stated that appellant’s claim was filed in
response to a disciplinary action. The employing establishment noted that there were several
issues pertaining to leave, customer complaints and sitting on a chair while at the window
conducting business and servicing customers.
In an October 2, 2007 disability slip, Dr. William Stanley, an internist, noted that
appellant could return to work on October 8, 2007. On October 28, 2007 he noted that she had
bilateral leg pain, especially in her knees, which she believed might be work related as she stood
for most of her day. Dr. Stanley was unable to find a “precipitating cause of her arthritis” and
recommended that she work in a sedentary capacity pending more intensive evaluation of her
symptoms.
In a December 28, 2007 report, Dr. Mark Filippone, a Board-certified physiatrist, noted
appellant’s history and diagnosed repetitive stress disorder in both upper and lower extremities,
internal derangement of the right shoulder, possible bilateral carpal tunnel syndrome, low back
derangement, and internal derangement of both knees and ankles. He stated that “the above
abnormalities are directly and solely the result of overuse phenomenon as a result of [appellant’s]
repetitive work as she outlines in her detailed 22-year history of working for the [employing
establishment].” Dr. Filippone completed an attending physician’s report on January 16, 2008
and checked the box “yes” that he believed her condition was caused or aggravated by an
employment activity. He indicated that appellant was totally disabled as of October 2007.
Dr. Filippone continued to treat her and submit reports. In a March 5, 2008 report, he indicated
that appellant could return to full-time limited duty.
In a January 28, 2008 report, Dr. Teofilo Dauhajre, a Board-certified orthopedic surgeon,
examined appellant and diagnosed impingement syndrome of the right shoulder, right rotator
cuff tear, right acromioclavicular (AC) joint arthropathy, tri-compartmental degenerative joint
disease of the right and left knees and internal derangement of both knees.
In a January 15, 2008 statement and an undated statement received on January 23, 2008,
appellant denied that her claim had anything to do with a disciplinary action. She explained that
there was “never” a problem related to using chairs at the front desk until January 2007.
Afterwards, appellant was informed that she was not to sit in a chair while servicing customers.
She described her duties as: lifting, carrying heavy parcels and placing the parcels on containers
that were very heavy and pushing them. Appellant also had to stand at one spot on unprotected
flooring. She stated that the prolonged duties hurt her back, shoulders, knees, hands and ankles.
In a January 16, 2008 letter, appellant indicated that she believed that she was in a hostile work
environment.
By decision dated March 11, 2008, OWCP denied appellant’s claim.
Counsel requested a hearing, which was held on August 28, 2008. In an April 17, 2009
decision, OWCP’s hearing representative set aside the March 11, 2008 decision and directed
referral for a second opinion evaluation to determine whether her employment factors caused or
contributed to the diagnosed degenerative conditions of both knees.

2

In an April 23, 2009 report, Dr. Filippone opined that appellant’s claim should include
repetitive stress disorder in both upper and lower extremities, internal derangement of the right
shoulder, bilateral carpal tunnel syndrome, rule out ulnar nerve neuropathy, internal derangement
of both ankles and internal derangement of both knees to rule out tarsal tunnel syndrome. He
opined that she was totally disabled.
OWCP referred appellant to Dr. Andrew Hutter, a Board-certified orthopedic surgeon. In
a May 21, 2009 report, Dr. Hutter noted appellant’s history of injury and treatment. He
examined her and diagnosed bilateral knee arthritis, low back pain and right rotator cuff tear.
Dr. Hutter explained that appellant was “significantly over weight” and noted that, while it might
be uncomfortable for her to stand for prolonged periods of time, it was his medical opinion that
her work was not the cause nor did it significantly aggravate her condition. He indicated that the
degenerative conditions in her knees were a natural progression of her degenerative condition.
Dr. Hutter advised that appellant could perform sedentary work with no standing more than 15
minutes at a time or walking for more than 15 minutes at a time. He indicated that she should be
given a high back chair to perform her duties, which was due to her general medical condition
and not a work-related condition. In a June 5, 2009 addendum, Dr. Hutter opined that
appellant’s work restrictions were guarded, her restrictions were permanent and no further
medical treatment was warranted.
In an August 18, 2009 decision, OWCP denied the claim.
Appellant requested a hearing. On January 21, 2011 OWCP’s hearing representative
vacated the prior decision finding that a conflict was created between appellant’s physicians,
Dr. Filippone and Dr. Dauhajre2 and the second opinion physician, Dr. Hutter, regarding whether
appellant’s work duties aggravated her degenerative knee conditions.
On February 15, 2011 OWCP referred appellant, the record and a statement of accepted
facts Dr. James Taitsman, a Board-certified orthopedic surgeon, to resolve the conflict. In a
March 16, 2011 report, Dr. Taitsman reviewed her history of medical treatment. Appellant was
morbidly obese with slight tenderness of the cervical and upper thoracic spine and slight pain on
cervical spine range of motion.
She had tenderness in the biceps, AC joint and
musculotendinous junction of the supraspinatus and infraspinatus of the right shoulder with
limited forward elevation and pain and slight decreased internal rotation. There was slight
tenderness over the lumbosacral spine and right SI joint. Appellant had a normal gait, some pain
on forward flexion past 85 degrees and no pain on bilateral straight leg raising. She had left knee
pain at the superolateral aspect of the patella and pain on ballottement of the patella bilaterally
and some medial joint line tenderness on the right and medial hamstring on the left. Ankle range
of motion was full without crepitation. Dr. Taitsman stated that appellant’s findings did not
completely correspond with her subjective complaints. He referred to diagnostic study findings
and noted that she related a history of low back pain with progressive arthritis of her knees with a
patellar dislocation as a child. Appellant also had patellofemoral osteoarthritis, generalized
osteoarthritis of both knees and low back pain with occasional radicular symptoms.
Dr. Taitsman opined that “it would not be unusual for someone with this body habitus to develop
2

Dr. Dauhajre submitted an October 12, 2010 report supporting that appellant’s work duties aggravated her
preexisting degenerative joint disease in both knees.

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lumbar arthritis and radicular symptoms, arthritis of the knees and [AC] joint.” He noted that,
“in terms of repetitive stress injuries, the [AC joint] arthrosis would be a predisposing factor”
and “the repeated pitching of mail could cause impingement on the rotator cuff with partial tear
of the rotator cuff and which may be work related” and would require activity modification and
possible surgery.”
Dr. Taitsman opined that, even with surgery, appellant would need activity modification.
He stated that “the preexisting condition of her knees and her current body habitus would be the
predisposing factors for the development of the arthritis in her knees. With the type of work that
[appellant] describes, even with standing for long periods of time, there is no significant high
impact stress on her knees that one would expect necessary to cause her progression of
osteoarthritis to be more rapid than normal. Preexisting patellofemoral arthritis may have been
exacerbated by appellant’s repetitive bending but I doubt that long standing or walking would
have any significant effect.” Dr. Taitsman noted that it would be difficult to attribute excessive
standing as the cause of accelerated progression of knee osteoarthritis but that “preexisting
patellofemoral dislocations, subluxation and obesity … may have exacerbated her condition.”
For the right shoulder, repetitive stress with pitching mail would be a causative factor to
impingement and rotator cuff tear but there was significant preexistent predisposing factor of
arthrosis of the AC joint. Dr. Taitsman stated that there was no obvious diagnosis for appellant’s
ankle pain other than a strain from abnormal stress to her knees, arthritis and pes planus and
some posterior tendinitis, which would not be work related. There was minimal evidence of
right rotator cuff damage and no significant right shoulder symptoms. Appellant’s disability was
primarily due to her low back symptoms. Dr. Taitsman stated that she could not walk or stand
for long periods due to knee arthritis and was not “primarily work related” and she could do a
seated job with limitations. Appellant could not perform her job due to difficulty pitching mail
as a right-hand dominant person with rotator cuff tear and impingement. There were no
objective findings to support a work aggravation of preexisting knee conditions. Dr. Taitsman
indicated that appellant’s work contributed to the repetitive stress exacerbating her underlying
shoulder conditions and were permanent. He opined that there were no objective findings of any
current disability due to the work-related aggravation other than slight tenderness. Dr. Taitsman
noted that appellant had not reached maximum medical improvement and would need further
medical care for her shoulder, including possible surgery. He opined that it was unlikely that she
would return to work due to other causes and, even with shoulder surgery, it was unlikely that
she could return to pitching mail as she would have limited use of her right arm.
On May 18, 2011 OWCP accepted the claim for aggravation of a preexisting rotator cuff
tear with impingement, right. It also found that the weight of the medical evidence did not
support that any back or knee problems were causally related to the accepted work factors.
Counsel requested a telephonic hearing, which was held on September 20, 2011. In a
June 21, 2011 report, Dr. Filippone examined her and opined that all of her abnormalities were
due to injuries she sustained at work. He disagreed with the findings of Dr. Taitsman.
Dr. Filippone noted that appellant had a fall on ice in 2003 and that she had extensive locking of
both knees and that her knees buckled. He indicated that she explained that she was able to do
everything and did not have any problems until October 2007. Dr. Filippone advised that he
could not attribute the worsening of appellant’s knee condition to her being “fat.” He and
Dr. Dauhajre continued to treat appellant and submit reports.

4

By decision dated December 19, 2011, OWCP’s hearing representative affirmed
OWCP’s May 18, 2011 decision.
LEGAL PRECEDENT
When an employee claims that he or she sustained an injury in the performance of duty,
the employee must submit sufficient evidence to establish that he or she experienced a specific
event, incident or exposure occurring at the time, place and in the manner alleged. The
employee must also establish that such event, incident or exposure caused an injury. Once an
employee establishes an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, which the employee
claims compensation, is causally related to the accepted injury.3 To meet his or her burden of
proof, an employee must submit a physician’s rationalized medical opinion on the issue of
whether the alleged injury was caused by the employment incident.4 Medical conclusions
unsupported by rationale are of diminished probative value and are insufficient to establish
causal relation.5
FECA provides that, if there is disagreement between the physician making the
examination for OWCP and the employee’s physician, OWCP shall appoint a third physician
who shall make an examination.6 In cases where OWCP has referred appellant to an impartial
medical examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.7
In a situation where OWCP secures an opinion from an impartial medical specialist for
the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental
report from the specialist for the purpose of correcting the defect in the original opinion. If the
specialist is unwilling or unable to clarify and elaborate on the opinion, the case should be
referred to another appropriate impartial medical specialist.8
ANALYSIS
The Board finds that this case is not in posture for decision. OWCP found a conflict in
the medical opinion between appellant’s physicians and Dr. Hutter, a referral physician. It
referred appellant to Dr. Taitsman to resolve the conflict regarding whether appellant’s work
duties aggravated her degenerative knee condition.
3

See Leon Thomas, 52 ECAB 202 (2001).

4

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

5

Albert C. Brown, 52 ECAB 152 (2000).

6

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

7

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

8

Guiseppe Aversa, 55 ECAB 164 (2003).

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The report from Dr. Taitsman is insufficient to resolve the conflict of whether appellant’s
work duties aggravated her degenerative knee conditions. Consequently, there remains an
unresolved conflict in the medical evidence. While Dr. Taitsman opined that there were no
objective findings to support a work-related aggravation of preexisting knee conditions, he also
advised that appellant’s preexisting patellofemoral arthritis may have been exacerbated by her
repetitive bending but he doubted that long standing or walking had any significant effect. He
noted that she was unable to do long periods of standing or walking because of the arthritis of her
knees. Dr. Taitsman also noted that appellant’s inability to walk or stand for long periods due to
knee arthritis was not “primarily work related.” He did not adequately explain his opinion on
causal relation as to the exacerbation of her arthritis by factors of her work as a mail clerk The
Board, therefore, finds that the case must be remanded for a supplemental opinion from
Dr. Taitsman regarding whether appellant’s work duties aggravated her degenerative knee
conditions. Following this and such further development as deemed necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2011 decision is set aside and the
case remanded for further action consistent with this decision.
Issued: February 26, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF THE ARMY, SPECIAL
OPERATIONS COMMAND,
FORT BRAGG, NC, Employer

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

Docket No. 07-1294
Issued: February 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 10, 2007 appellant filed a timely appeal from June 6, 2006 and January 25,
2007 decisions of the Office of Workers’ Compensation Programs denying her claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant’s claimed emotional condition is causally related to a
compensable factor of her employment.
FACTUAL HISTORY
On October 3, 2005 appellant, then a 50-year-old family advocacy program specialist in
the Family Readiness Division,1 filed an occupational disease claim for an emotional condition.
1

Appellant’s duties included serving as the program manager for the family advocacy program for soldiers in the
special operations community and their families.

She alleged that she developed depression, migraine headaches and elevated blood pressure in
March 2005 due to her job. Appellant alleged that her condition was due to workplace
discrimination, mismanagement,2 a hostile environment and inadequate training. In April 2004,
Kenneth Heaney, Assistant Deputy Chief of Staff, Special Operations Command and appellant’s
second level supervisor, berated and humiliated her in front of other individuals regarding her
job performance. In May 2004 appellant was relieved of her duties as the project officer for a
Gold Star Dinner3 by Alisha Sanders, Chief of the Family Readiness Division and her immediate
supervisor, because she had been on sick leave for two days and was not prepared to complete
the arrangements for the event. Ms. Sanders shouted at her. Appellant asked to discuss the
matter later because she had a headache but Ms. Sanders refused and continued criticizing her.
In July 2004 she received a notice of a proposed suspension for unsatisfactory job performance.
Appellant was suspended for 14 days in August 2004 for failure to follow her supervisor’s
instructions and for disrespectful behavior. In September 2004 she returned to work after her
suspension and was informed that a briefing was due in two days. Appellant was unable to meet
the deadline. Ms. Sanders became upset with her and “stormed” out of the office. Appellant was
afraid of losing her job. In December 2004 she received another 14-day suspension for failure to
follow instructions and disrespectful behavior. On January 6, 2005 appellant advised
Mr. Heaney that she had recently returned from sick leave and asked that they meet at a later
time because she was not feeling well. Mr. Heaney proceeded to counsel her regarding
procedures for submitting leave slips. He told her that she was his only “problem” employee
among 72 employees. Mr. Heaney noted that Ms. Sanders and others in management wanted to
terminate her but he dissuaded them. Appellant became fearful and anxious and went to the
emergency room. She alleged that she was repeatedly harassed and threatened with termination
which caused fear, anxiety, nightmares and post-traumatic stress symptoms. Ruth Barefoot,
Acting Chief of the Family Readiness Division, in Ms. Sanders’ absence, charged appellant with
being absent without leave (AWOL) on January 28 and February 2 to 3, 2005. An investigation
revealed that appellant was in duty status during that time and her pay and benefits were
restored.4 She was removed from her position as of March 11, 2005. In a July 18, 2004
statement, Teresa Dudley-McCall, a coworker, discussed the reasons that she disliked
Ms. Sanders’ and Mr. Heaney’s managerial styles. She criticized Ms. Sanders’ handling of the
Gold Star Dinner. Ms. Dudley-McCall opined that appellant was a good employee who was not
treated properly by Ms. Sanders and Mr. Heaney. In a May 11, 2006 statement, Veronica
Whitfield, a coworker, stated that appellant told her of ongoing workplace humiliation and
belittling between 2003 and 2005. On some occasions, she saw appellant experiencing anxiety
attacks and headaches after work.

2

Appellant alleged that her supervisors lacked sufficient knowledge and experience regarding the Family
Readiness Division.
3

A Gold Star Dinner is an event held for the families of soldiers who have died.

4

In a March 2, 2005 memorandum, Hans Meinhardt, Assistant Deputy Chief of Staff, provided findings
following an investigation into appellant’s absence from work for eight hours between January 28 and February 2
to 3, 2005. He interviewed several individuals and concluded that appellant was in the performance of her duties
during the time she was charged with being AWOL. However, appellant had failed to keep her supervisor properly
informed of her whereabouts during the workday.

2

Appellant submitted two investigative reports regarding her Equal Employment
Opportunity (EEO) complaint of discrimination based on reprisal (prior EEO complaints), race,
sex, age and disability (migraine headaches). She alleged that Ms. Sanders improperly issued
14-day suspensions in August and December 2004 for failure to follow instructions, conduct
prejudicial to the efficiency of the service and disrespectful behavior. In August 2004 appellant
was suspended because she changed the date of a scheduled event without the approval of
Ms. Sanders, purchased the wrong flags for the Gold Star Dinner and made other errors
concerning preparations for the dinner. Ms. Sanders counseled her on several occasions and
assisted her with the project. Mr. Heaney also counseled appellant regarding the need to follow
Ms. Sanders’ instructions. After returning to work following the August 2004 14-day
suspension, appellant was given two days to prepare slides for a Power Point slide presentation
and briefing as part of a Family Advocacy Program Training Conference. Ms. Sanders and
Mr. Heaney made corrections to the slides and asked her to revise them. Appellant alleged that
she could not complete the requested changes on time because certain information was not
available and she had insufficient time. Ms. Sanders indicated that appellant refused to make the
requested changes to the slides. She issued the 14-day suspension and sought the termination of
appellant from her position because she failed to follow directions and was disrespectful.
Ms. Sanders and Mr. Heaney denied that they discriminated against appellant. Investigator
Thaddeus Johnson determined that appellant failed to establish that her suspensions were
improper.5
The employing establishment controverted appellant’s claim. Ms. Sanders denied that
she harassed or discriminated against appellant. She stated that appellant never claimed that she
had a disability due to her migraine headaches. Ms. Sanders relieved appellant of some of her
duties regarding the Gold Star Dinner, not all her duties. The preparations for the dinner were
not being made in a timely manner by appellant; the dinner program to be printed was not
correct; she questioned instructions given to her regarding the music for the dinner. When
Ms. Sanders counseled her regarding incidents of tardiness, appellant became upset and started
to walk out. Ms. Sanders stated that if appellant did not want to be counseled at that time they
could discuss the Gold Star Dinner. She asked appellant not to leave but she continued walking
and went home. Ms. Sanders sent her an e-mail informing her that she would replace her as the
lead on the Gold Star Dinner. Appellant’s August 2004 suspension was issued for her failure to
follow instructions regarding the Gold Star Dinner and walking out of the office during a
discussion after being asked to remain. The December 2004 suspension was issued because she
refused to make changes on the briefing slides as requested and refused to discuss the matter
with her supervisor. Each of appellant’s suspensions was preceded with an opportunity to
present a response. Each suspension was investigated and upheld. Ms. Sanders stated that
appellant sometimes reported late for work, did not always advise her supervisor of her
whereabouts and sometimes failed to see her assignments through to completion. In
September 2004 Ms. Sanders asked appellant not to use her doctor of ministry title on any work
products because this religious title was not a condition of her employment and had nothing to do
with her federal job. Appellant continued to use the title despite Ms. Sanders’ instructions.

5

In addition to her EEO complaints, appellant filed a grievance against the employing establishment that was not
resolved in her favor.

3

Appellant submitted medical evidence in support of her claim. In notes dated May
through December 2005, Sylvia Branson, a licensed clinical psychologist, stated that appellant’s
supervisor counseled her in an inappropriate manner and caused flashbacks to a counseling
incident when she was a military chaplain. She diagnosed adjustment disorder and posttraumatic stress disorder. In reports dated August 2005 through January 2006, Dr. Valerie A.
Murray, an attending psychiatrist, diagnosed anxiety, bipolar depression and post-traumatic
stress disorder. She indicated that these conditions were caused by work stress, including harsh
treatment from her supervisor who ultimately fired her.
By decision dated June 6, 2006, the Office denied appellant’s claim on the grounds that
the factual and medical evidence failed to establish that she sustained an emotional condition
causally related to compensable factors of her employment.
On June 26, 2006 appellant requested a hearing. A telephonic hearing was held on
November 8, 2006. Appellant testified that she had a disability when she was hired, chronic
migraine headaches. Her disability was ignored by management and was aggravated by
workplace incidents. Because of the disciplinary actions taken by management, appellant feared
losing her job. On some occasions when her supervisors counseled her, she requested a
postponement of the discussion because of her headaches but her supervisors continued the
discussions. Queen Degraphenreid, a coworker, testified that appellant was experiencing
problems at work but she did not provide details.
By decision dated January 25, 2007, the Office hearing representative affirmed the
June 6, 2006 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.6 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.7
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Act. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.8
6

5 U.S.C. §§ 8101-8193.

7

Lillian Cutler, 28 ECAB 125 (1976).

8

Michael Thomas Plante, 44 ECAB 510 (1993).

4

When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship, and which are not deemed compensable
factors of employment and may not be considered.9 When a claimant fails to implicate a
compensable factor of employment, the Office should make a specific finding in that regard. If a
claimant does implicate a factor of employment, the Office should then determine whether the
evidence of record substantiates that factor.10 As a rule, allegations alone by a claimant are
insufficient to establish a factual basis for an emotional condition claim but rather must be
corroborated by the evidence.11 Where the claimant alleges compensable factors of employment,
she must substantiate such allegations with probative and reliable evidence.12 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, then the Office must base its decision on an analysis of the medical
evidence.13
ANALYSIS
Appellant alleged that her emotional condition was caused by a number of employment
conditions or incidents.
A number of appellant’s allegations concern personnel or administrative matters. The
Board has held that an administrative or personnel matter will be considered to be an
employment factor only where the evidence discloses error or abuse on the part of the employing
establishment.14 In determining whether the employing establishment erred or acted abusively,
the Board has examined whether the employing establishment acted reasonably.15 In May 2004
appellant was relieved of her duties as the project officer for a Gold Star Dinner by Ms. Sanders
who stated that she relieved appellant of some of her duties regarding the Gold Star Dinner, not
all. The preparations for the dinner were not being made in a timely manner, the dinner program
to be printed was not correct and appellant questioned instructions given to her regarding the
music for the dinner. Ms. Sanders sent appellant an e-mail informing her that she would replace
her as the lead on the Gold Star Dinner. She provided an explanation for the change in
appellant’s assigned duties regarding the dinner, that she was not performing all of her tasks in a
timely and correct manner. Appellant has failed to establish error or abuse in Ms. Sanders’
handling of the work assignments for the dinner. She alleged that disciplinary actions taken
against her were unfair. In July 2004 appellant received a notice of proposed suspension for
9

Dennis J. Balogh, 52 ECAB 232 (2001).

10

Margaret S. Krzycki, 43 ECAB 496 (1992).

11

See Charles E. McAndrews, 55 ECAB 711 (2004).

12

Joel Parker, Sr., 43 ECAB 220 (1991).

13

See Charles D. Edwards, 55 ECAB 258 (2004).

14

Id.

15

Janice I. Moore, 53 ECAB 777 (2002).

5

unsatisfactory job performance. She provided insufficient evidence to establish that the notice of
proposed suspension was improperly issued. The record shows that an August 2004 suspension
was issued for her failure to follow instructions regarding the Gold Star Dinner and walking out
of the office during a discussion about the dinner after Ms. Sanders asked her to remain. The
record shows that she changed the date of the dinner without the approval of Ms. Sanders,
purchased the wrong flags for the dinner and made other errors concerning preparations for the
dinner. There is insufficient evidence that management erred or acted abusively in issuing the
August 2004 suspension. Regarding the December 2004 suspension, the record shows that
appellant prepared slides for a presentation and briefing as part of an upcoming conference.
Ms. Sanders and Mr. Heaney asked her to make certain corrections to the slides. She indicated
that appellant refused to make any changes or to talk to her about the slides. The
December 2004 suspension was issued for her failure to follow supervisory instructions and
disrespectful behavior. The record shows that each of appellant’s suspensions was preceded with
an opportunity to present a response. Each suspension was investigated and upheld. The EEO
investigative reports determined that appellant failed to establish that her suspensions were
improper. She has failed to establish error or abuse in the handling of management’s handling of
the disciplinary actions. Therefore, this allegation is not deemed a compensable employment
factor.16 Appellant alleged that she feared losing her job because of the disciplinary actions.
However, a feeling of job insecurity is not compensable under the Act.17 On January 6, 2005
appellant advised Mr. Heaney that she had recently returned from sick leave and asked that they
meet at a later time because she was not feeling well. Mr. Heaney did not dismiss her and
proceeded to counsel her regarding procedures for submitting leave slips. Appellant alleged that
Mr. Heaney told her that she was his only problem employee among 72 employees and noted
that Ms. Sanders and other supervisors wanted to terminate her but he dissuaded them. There is
insufficient evidence to establish error or abuse regarding Mr. Heaney’s discussion with
appellant in January 2005. Appellant did not establish that Mr. Heaney acted abusively when he
continued the discussion regarding her use of sick leave or in his comments regarding her job
performance. Therefore, this allegation is not deemed a compensable employment factor.
Appellant alleged that she had inadequate training for her position. However, she submitted
insufficient evidence to support this allegation. Therefore, it is not deemed a compensable factor
of employment. Ms. Barefoot charged appellant with being AWOL on two occasions.
Ms. Sanders stated that appellant sometimes reported late for work and did not always advise her
supervisor of her whereabouts. An investigation revealed that appellant was in duty status
during the days that she was charged with being AWOL. Her pay and benefits were restored.
However, the investigation revealed that appellant had failed to keep her supervisor informed of
her location during the workday. The fact that the investigation showed that she was not AWOL
does not establish that it was improper for the employing establishment to conduct the
investigation. Therefore, appellant’s allegation regarding the AWOL charge is not deemed a
compensable factor of employment. She alleged that her supervisors lacked sufficient
knowledge and experience for their positions. However, appellant provided insufficient
evidence in support of this allegation. Therefore it is not established as factual and is not deemed
a compensable employment factor. Because there is insufficient evidence of error or abuse in the

16

Charles D. Edwards, supra note 13.

17

Peter D. Butt, 56 ECAB 117 (2004).

6

handling of these administrative or personnel matters, these allegations are not deemed
compensable factors of employment.
Appellant alleged that she was repeatedly harassed and threatened with termination
which caused fear, anxiety, nightmares and post-traumatic stress symptoms. Mere perceptions of
harassment or discrimination are not compensable under the Act. Appellant’s burden of proof is
not discharged with allegations alone. She must support her allegations with probative and
reliable evidence.18 Appellant alleged that Mr. Heaney berated and humiliated her in front of
other individuals regarding her job performance. Mr. Heaney denied that he discriminated
against her and appellant provided insufficient evidence to establish her allegation as factual. In
September 2004 appellant was informed that a briefing was due in two days. She was unable to
meet the deadline. Ms. Sanders became upset with appellant and “stormed” out of the office.
She denied that she or anyone else ever harassed appellant and there is insufficient evidence to
establish that she did so. The two investigative reports regarding appellant’s EEO complaints of
discrimination indicated that she failed to establish wrongdoing by management. The Board
finds that there is insufficient evidence to establish that appellant’s allegations of harassment and
discrimination are factual. Therefore, these allegations are not deemed to be compensable
employment factors.19
Appellant alleged that she had a disability when she was hired, chronic migraine
headaches. Her disability was ignored by management and was aggravated by workplace
incidents. On some occasions when her supervisors counseled her, appellant requested a
postponement of the discussions because of her headaches but her supervisors continued the
discussions. Ms. Sanders stated that appellant never claimed that she had a disability due to her
migraine headaches and appellant failed to provide sufficient evidence establishing her allegation
of discrimination based on her migraine headaches. Therefore, this allegation is not deemed a
compensable factor of employment.
The witness statements are not sufficient to establish that appellant sustained an
emotional condition causally related to a compensable factor of employment.
Ms. Dudley-McCall discussed the reasons that she disliked Ms. Sanders’ and Mr. Heaney’s
managerial styles and Ms. Sanders’ handling of the Gold Star Dinner. She opined that appellant
was a good employee who was not treated properly by Ms. Sanders and Mr. Heaney.
Ms. Whitfield stated that appellant told her of ongoing workplace harassment between 2003 and
2005. On some occasions, she saw appellant experiencing anxiety attacks and headaches after
work. Ms. Degraphenreid stated that appellant was experiencing problems at work. The
witnesses did not describe any specific incidents of discrimination or harassment by
management. Therefore, their statements are insufficient to establish a compensable factor of
employment.

18

Cyndia R. Harrill, 55 ECAB 522 (2004).

19

Unless appellant alleges a compensable factor of employment substantiated by the record, it is unnecessary to
address the medical evidence. See Barbara J. Latham, 53 ECAB 316 (2002); Garry M. Carlo, 47 ECAB
299 (1996).

7

CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty causally related to a compensable
factor of employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 25, 2007 and June 6, 2006 affirmed.
Issued: February 22, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY, TOBYHANNA )
ARMY DEPOT, Tobyhanna, PA, Employer
)
__________________________________________ )
P.M., Appellant

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

Docket No. 15-0505
Issued: June 19, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 7, 2015 appellant filed a timely appeal from a September 24, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty.
FACTUAL HISTORY
On November 13, 2012 appellant, then a 54-year-old electronics mechanic, filed a
traumatic injury claim alleging that on November 9, 2012 he sustained a low back injury in the
performance of duty. He alleged that he began to experience immediate pain in the lower back
1

5 U.S.C. § 8101 et seq.

when he bent down to remove a battery from a TRC-190.
November 9, 2012 and returned December 17, 2012.

Appellant stopped work on

A November 9, 2012 report from the employing establishment’s health unit was
submitted. This report, signed by a registered nurse, advised that appellant injured his back
while bending down to remove a battery at work.
In a November 12, 2012 diagnostic report, Dr. Kenneth Levin, a Board-certified
diagnostic radiologist, advised that an x-ray of the lumbar spine revealed no evidence of
compression fracture, subluxation, or spondylolysis.
In a December 4, 2012 diagnostic report, Dr. Gerald Larar, Board-certified in diagnostic
radiology, advised that a lumbar spine magnetic resonance imaging (MRI) scan revealed shallow
annular bulging, early facet degenerative changes, and mild canal and foraminal stenosis slightly
greater at L4-5.
On December 10, 2012 appellant requested authorization for physical therapy.
In a December 17, 2012 report, Dr. Richard Lippin, Board-certified in family medicine,
advised that appellant injured his low back removing a battery. He noted that appellant was able
to return to regular duty that day. Dr. Lippin noted that appellant was discharged from treatment.
Appellant also submitted several physical therapy reports.
By letter dated January 10, 2014, OWCP notified appellant that initially his claim was
administratively handled to allow medical payments, as it appeared to be a minor injury resulting
in minimal or no lost time from work. However, it then advised that it was considering the
merits of his claim because medical bills had exceeded $1,500.00. OWCP advised appellant of
the type of evidence needed to establish his claim.
By decision dated February 24, 2014, OWCP denied appellant’s claim because medical
evidence was insufficient to establish that there was a condition diagnosed in connection with the
work-related incident.
On March 9, 2014 appellant requested review of the written record. In support of his
request, he submitted a November 12, 2012 report from Dr. Traci Galardi, an internist, who
advised that he was experiencing lumbar pain. Dr. Galardi noted that when appellant bent down
to pick up a battery at work it felt as though a knife was stuck into his back. She further noted
that his pain was radiating down to his right buttock and he was experiencing a tingling sensation
in his right leg. On physical examination Dr. Galardi noted that lumbar range of motion was
decreased due to pain and that there was tenderness and spasm in the right lower back with
palpation. She assessed lumbago and noted that it was most likely a strain.
In a November 16, 2012 report, Dr. Galardi advised that appellant was experiencing
lower back pain that radiated into his right leg after experiencing a work injury. She advised that
he had decreased range of motion due to pain, moderate spasm on the right as compared to the
left, and decreased patellar reflex on the right. Dr. Galardi again assessed lumbago.

2

In a December 7, 2012 report, Dr. Galardi advised that appellant had a back injury at
work. She noted that he felt he was improving, but was still experiencing stiffness in the
morning. On examination Dr. Galardi noted that there was still decreased range of motion due to
pain, tenderness on the right with palpation, and mild spasms. She noted that an MRI scan
revealed a disc bulge, degenerative changes, and canal narrowing. Dr. Galardi assessed lumbago
and referred appellant for physical therapy.
In a December 14, 2012 report, Dr. Galardi advised that appellant related that he was
feeling better with physical therapy and was scheduled to return to work. On examination she
noted that his lumbar range of motion improved and that there was still tenderness on the right
with mild spasm. Dr. Galardi assessed lumbago with a disc bulge secondary to a work injury.
By decision dated September 24, 2014, an OWCP hearing representative affirmed the
February 24, 2014 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.3 The employee must also
establish that he or she sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.6

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

T.H., 59 ECAB 388 (2008).

6

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

3

ANALYSIS
There is no dispute that on November 9, 2012 appellant bent down to pick up a battery at
work. The evidence supports that the claimed work incident occurred as alleged. Therefore, the
Board finds that the first component of fact of injury is established. However, the medical
evidence is insufficient to establish that the employment incident on November 9, 2012 caused
appellant’s lumbago and disc bulge.
In her December 14, 2012 report, Dr. Galardi assessed lumbago with a disc bulge
secondary to a work injury. This report does not explain how the work incident caused or
contributed to a disc bulge or lumbago. As stated, Dr. Galardi’s opinion must be supported by
medical rationale explaining the relationship between the diagnosed condition and the work
incident.7 In her November 12, 2012 report, she related that appellant bent down to pick up a
battery at work it felt as though a knife was stuck into his back. Dr. Galardi assessed lumbago
and noted that it was most likely a strain. The Board has found that the mere fact that a
condition manifests itself or is worsened during an employment period does not raise an
inference of causal relationship between the two.8 Dr. Galardi appears to state the history as
given by appellant without explaining how the work incident caused the condition. In her
November 16, 2012 report, she advised that appellant was experiencing lower back pain that
radiated to his right leg after experiencing a work injury and assessed lumbago. Therefore, while
Dr. Galardi attributes appellant’s low back pain to the work incident, but does not provide
medical rationale to explain how the incident caused or contributed to a particular condition. In
her December 7, 2012 report, she advised that appellant had a back injury at work and assessed
lumbago. These reports fail to provide a rationalized opinion on causal relationship.
In his December 17, 2012 report, Dr. Lippin advised that appellant injured his low back
removing a battery. Although he offers an opinion on causal relationship, he does not explain
how removing the battery caused or contributed to a diagnosed condition.9
November 12 and December 4, 2012 reports of Drs. Levin and Larar note the findings of
diagnostic testing. These reports are insufficient to discharge appellant’s burden of proof
because they do not address how any diagnosed condition was caused or aggravated by
employment duties.10
Multiple physical therapy reports were submitted. However, a physical therapist is not
considered a physician as defined under FECA.11 Thus, records from physical therapists are
7

Id.

8

Patricia Bolleter, 40 ECAB 373 (1988).

9

Supra note 6.

10

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of diminished probative value on the issue of causal relationship).
11

A.C., Docket No. 08-1453 (issued November 18, 2008). Under FECA, a “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law. 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211
(1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).

4

insufficient to establish the claim.12 A November 9, 2012 report signed by a registered nurse is
also insufficient to discharge appellant’s burden of proof.13
Appellant has submitted insufficient medical evidence to establish his claim. Causal
relationship is a medical question that can generally be resolved only by rationalized medical
opinion evidence.14 The physician must accurately describe appellant’s work duties and
medically explain the pathophysiological process by which these duties would have caused or
aggravated his condition.15 Because appellant has not provided such medical opinion evidence
in this case, he has failed to meet his burden of proof.
On appeal appellant argued that OWCP approved 12 physical therapy sessions, but only
paid for four. He requests that OWCP reimburse him for the remaining sessions. The Board
notes that there has been no formal denial of medical expenses by OWCP over which the Board
could exercise jurisdiction authorized physical therapy in this case. Nonetheless, the Board has
held that the mere fact that OWCP authorized and paid for medical treatment does not establish
that the condition for which the employee received treatment was employment related.16
Appellant may submit new evidence or argument as part of a formal 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 established a traumatic injury in the performance
of duty.

12

Allen C. Hundley, 53 ECAB 551 (2002); Lyle E. Dayberry, 9 ECAB 369 (1998).

13

Supra note 11.

14

See Jennifer Atkerson, 55 ECAB 317 (2004).

15

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).
16

See Gary L. Whitmore, 43 ECAB 441 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


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

)
)
)
)
)
)
)
)

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

Docket No. 06-2070
Issued: March 22, 2007

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 September 11, 2006 appellant, through her attorney, filed a timely appeal of an
August 31, 2006 merit decision of the Office of Workers’ Compensation Programs issuing a
schedule award for a 20 percent impairment of her right upper extremity. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the merits of this case. On
appeal appellant contends that she has a 69 percent impairment of the right upper extremity due
to the effects of her preexisting condition of scleraderma in the hand and shoulder.
ISSUE
The issue is whether appellant has more than a 20 percent impairment of the right upper
extremity for which she received a schedule award.

FACTUAL HISTORY
This is the second appeal before the Board. The facts of this case, as presented in the
Board’s June 22, 2006 decision, are hereby incorporated by reference.1 The relevant facts are set
forth.
On August 5, 2004 appellant, then a 63-year-old distribution clerk, filed a traumatic
injury claim alleging that on July 29, 2004 she tripped and sustained a broken right wrist. On
September 27, 2004 the Office accepted appellant’s claim for fracture of the right wrist.
Appellant retired on July 31, 2006.
On August 14, 2006 appellant filed a claim for a schedule award. She submitted a
medical report and impairment rating by Dr. Michael J. Platto, a Board-certified physiatrist, who
concluded that appellant had a 12 percent impairment of the right upper extremity. Dr. Platto
noted that, pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment appellant’s 43 degrees of flexion in her wrist would amount to a 3
percent impairment of the right upper extremity. Using Figure 16-28 of the A.M.A., Guides, he
determined that she had 40 degrees of extension which amounted to 4 percent impairment of the
right upper extremity.2 Dr. Platto found that appellant had 10 degrees of radial deviation for a 2
percent impairment of the upper extremity and 17 degrees of ulnar deviation for a “-3 [percent]”
impairment of the right upper extremity.3 He then added the loss of range of motion
impairments to find a total 12 percent impairment of the right upper extremity based on
impairment to the right wrist.4
The Office referred appellant’s file to the Office medical adviser to determine if there
was an impairment due to the accepted condition. He reviewed the physical examination
findings of Dr. Platto. In a report dated August 22, 2006, the Office medical adviser determined
that appellant had a 20 percent impairment to her right wrist. He agreed with Dr. Platto that
appellant had a three percent impairment for loss of flexion, a four percent impairment for loss of
extension and a two percent impairment for loss of radial deviation. With regard to her ulnar
deviation of 17 degrees, he found that this was an 11 percent impairment of the right upper
extremity, not the “-3” percent documented by Dr. Platto.5 The medical adviser added the loss of
range of motion impairments (2 percent impairment for flexion, 3 percent impairment for
extension, 2 percent impairment for radial deviation plus 13 percent for ulnar deviation) to total a

1

Docket No. 06-804 (issued June 22, 2006).

2

A.M.A., Guides 467, Figure 16-28.

3

A.M.A., Guides 469, Figure 16-31.

4

Dr. Platto determined that, if you add the figures for impairments in appellant’s right shoulder and right hand to
the impairment findings for appellant’s right wrist, she had a 37 percent impairment of the right upper extremity or a
22 percent impairment of the whole person.
5

A.M.A., Guides 469, Figure 16-31.

2

20 percent impairment of the right upper extremity based on impairment to her right wrist.6 He
further opined:
“For the accepted condition of right wrist, fracture, closed lower end of radius,
right wrist open fracture carpal bone status post percutaneous pinning of the right
radial wrist fracture, the final impairment in the right upper extremity is 20
[percent]. [Appellant] has scleroderma which may complicate the right wrist
range of motion (although this will mostly affect the fingers of the right hand),
however, there is no way to determine which amount of impairment is due to
scleroderma in the wrist, if any and which is due to the residuals of the accepted
conditions.”
On August 31, 2006 the Office issued a schedule award for a 20 percent impairment of
the right upper extremity.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act7 and its
implementing regulation at 20 C.F.R. § 10.404, provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. The Act,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a matter which rests in the sound
discretion of the Office. For consistent results and to ensure equal justice, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the Office as a standard for evaluation
of schedule losses and the Board has concurred in such adoption.8 As of February 1, 2001,
schedule awards are calculated according to the fifth edition of the A.M.A., Guides, published
in 2000.9
ANALYSIS
Both Dr. Platto and the Office medical adviser properly applied the A.M.A., Guides with
regard to impairment of appellant’s right upper extremity based on findings in her right wrist
based on extension, flexion and right wrist radial deviation. Pursuant to the A.M.A., Guides, 43
degrees of flexion of the right wrist equaled a 3 percent impairment of the right upper extremity
and 40 degrees of extension equaled a 4 percent impairment of the right upper extremity;10 10
6

The Office medical adviser found that appellant had a total upper extremity impairment of 69 percent based on
20 percent impairment of the right wrist, 13 percent impairment of the right shoulder and 55 percent impairment of
the right hand.
7

5 U.S.C. §§ 8101-8193.

8

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003) schedule awards calculated as of February 21, 2001 should be evaluated according to the fifth edition of
the A.M.A., Guides. Any recalculations of previous awards which result from hearings, reconsideration or appeals
should, however, be based on the fifth edition of the A.M.A., Guides effective February 1, 2001.
10

A.M.A., Guides 467, Figure 28.

3

degrees of radial deviation in the right wrist equaled a 2 percent impairment of the right upper
extremity.11 However, neither physician’s conclusions with regard to ulnar deviation is correct
based on the A.M.A., Guides. Dr. Platto found that, as appellant had 17 degrees of ulnar
deviation, she was entitled to a “-3” percent impairment of the right upper extremity. The
A.M.A., Guides 469, Figure 31, do not appear to allow for negative findings. In adding his
figures, however, it appears that Dr. Platto read his finding as a (positive) 3 percent impairment.
However, as the report is written, his finding is incorrect based on his statement that appellant
had a minus three percent impairment based on ulnar deviation. The Office medical adviser
found Dr. Platto’s findings incorrect and he found a 17 percent impairment due to ulnar
deviation. However, a review of Figure 16-31 of the A.M.A., Guides does not reveal how the
Office medical adviser arrived at this conclusion. His conclusion is further complicated as he
appears to confuse Dr. Platto’s finding with regard to ulnar deviation with right wrist radial
deviation. Accordingly, the case will be remanded in order for the Office medical adviser to
reevaluate appellant’s impairment to her right upper extremity.
CONCLUSION
This case is not in posture for decision and is remanded for further development of the
medical evidence. Following this and any necessary further development, the Office should
issue a de novo decision regarding the percentage of impairment of appellant’s right upper
extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 31, 2006 is vacated and the case remanded for further
consideration consistent with this opinion.
Issued: March 22, 2007
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
11

A.M.A., Guides 469, Figure 16-31.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Berkeley, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Josefino C. Aguilar, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1164
Issued: March 16, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 30, 2019 appellant, through his representative, filed a timely appeal from an
April 8, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

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

Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). After exercising its discretion, by order dated July 21, 2020, the Board denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 19-1164 (issued July 21, 2020).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $20,030.86, for the period June 1, 2017 through February 2, 2019, because he
concurrently received Social Security Administration (SSA) age-related retirement benefits and
FECA wage-loss compensation for this period without appropriate offset; (2) whether OWCP
properly determined that appellant was at fault in the creation of the overpayment, thereby
precluding waiver of recovery of the overpayment; and (3) whether OWCP properly required
recovery of the overpayment by deducting $393.11 from appellant’s compensation payments every
28 days.
FACTUAL HISTORY
On May 27, 2011 appellant, then a 59-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging injury due to twisting his left arm in an attempt to catch a falling mail tray
while in the performance of duty. OWCP accepted his claim for sprains of the left elbow/forearm,
left shoulder/upper arm (including rotator cuff), and left biceps. It paid appellant wage-loss
compensation for disability from work on the supplemental rolls commencing September 10, 2011
and on the periodic rolls commencing September 25, 2011.
In a September 29, 2011 letter, OWCP advised appellant that he had been placed on the
periodic rolls, effective September 25, 2011. It informed him that, if he was covered under the
Federal Employees’ Retirement System (FERS), it was possible that he could receive a prohibited
dual benefit upon future receipt of Social Security Administration (SSA) age-related retirement
benefits. In a June 10, 2013 letter, OWCP advised appellant that section 8116(d)(2) of FECA
required that a claimant’s continuing FECA compensation be reduced if he or she received SSA
age-related retirement benefits based on age or federal service.
OWCP periodically required appellant to complete EN1032 forms, which contained
language advising him what types of employment activities and earnings that he was required to
report for each 15-month period prior to the time he signed each form.
On January 24, 2019 OWCP received a FERS/SSA dual benefits calculation form
completed by an SSA official on January 11, 2019. The form provided SSA benefit rates with a
FERS offset and without a FERS offset for the period June 1, 2017 through December 2018. The
form indicated that beginning June 1, 2017, the SSA rate with FERS was $1,733.00 and without
FERS was $757.00; beginning December 1, 2017, the SSA rate with FERS was $1,768.00 and
3

5 U.S.C. § 8101 et seq.

4

The Board notes that following the April 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 additional
evidence for the first time on appeal. Id.

2

without FERS was $772.10; and beginning December 1, 2018 the SSA rate with FERS was
$1,817.00 and without FERS was $793.70.
OWCP completed a FERS offset calculation worksheet on February 21, 2019. It calculated
the overpayment amount by determining the daily FERS offset amount and multiplying that
amount by the number of days in each period from June 1, 2017 through February 2, 2019 for a
total overpayment amount of $20,030.86. OWCP determined that during the period June 1 through
November 30, 2017 appellant received an overpayment of $5,888.18; during the period
December 1, 2017 through November 30, 2018 he received an overpayment of $11,983.63, and
during the period December 1, 2018 through February 2, 2019 he received an overpayment of
$2,159.05.
In a preliminary overpayment determination dated February 28, 2019, OWCP notified
appellant that he received an overpayment of compensation in the amount of $20,030.86, for the
period June 1, 2017 through February 2, 2019, because he received SSA age-related retirement
benefits based on his age and attributable to his federal service, without an offset being made,
while he received FECA compensation benefits. It also made a preliminary determination that
appellant was at fault in the creation of the overpayment because he accepted payments he knew,
or reasonably should have known, to be incorrect.5 OWCP advised him that he could submit
evidence challenging the fact, amount, or finding of fault, and request waiver of the overpayment.
It informed appellant that he could submit additional evidence in writing or at prerecoupment
hearing, but that a prerecoupment hearing must be requested within 30 days of the date of the
written notice of the overpayment. OWCP requested that appellant complete and return an
enclosed financial information questionnaire (Form OWCP-20) within 30 days even if he was not
requesting waiver of the overpayment.
In an overpayment action request form, signed on March 18, 2019, appellant indicated that
he disagreed that the claimed overpayment occurred. In March 18 and 26, 2019 statements, he
challenged OWCP’s preliminary overpayment determination and asserted that SSA never advised
him that his SSA age-related retirement benefits would be “combined” with FERS.6 No additional
evidence, including a completed Form OWCP-20, was received.
By decision dated April 8, 2019, OWCP finalized the preliminary overpayment
determination finding that appellant had received an overpayment of compensation in the amount
of $20,030.86, for the period June 1, 2017 through February 2, 2019, because he received SSA
age-related retirement benefits based on his age and attributable to his federal service, without an
offset being made, while he received FECA compensation benefits. It found that appellant was at
fault in the creation of the overpayment because he accepted payments he knew, or reasonably
should have known, to be incorrect.7 OWCP determined that, therefore, waiver of recovery of the
5

OWCP asserted that appellant misrepresented the type of SSA benefits he received as not being age related.

6
Appellant submitted several documents from SSA and OPM that were previously of record. He also submitted a
June 1, 2017 SSA document informing him that he would receive SSA age-related retirement benefits effective
June 1, 2017.
7
OWCP also briefly discussed appellant’s completion of EN1032 forms and generally noted without elaboration,
“You made an incorrect statement as to a material fact which you knew or should have known to be incorrect.”

3

overpayment was precluded. It required repayment of the overpayment by deducting $393.11
from appellant’s continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.8 However, 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.9
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.10 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA age-related retirement 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.11
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$20,030.86, for the period June 1, 2017 through February 2, 2019, because he concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation benefits without
an appropriate offset.12
The evidence of record indicates that, while appellant was receiving wage-loss
compensation benefits under FECA, he was also receiving SSA age-related retirement benefits
based upon his federal service. As explained, a claimant cannot receive both wage-loss
compensation benefits under FECA and SSA age-related retirement benefits attributable to federal
service for the same period.13 The information provided by SSA established that appellant
received SSA age-related retirement benefits that were attributable to federal service during the
period while he was receiving wage-loss compensation on the periodic rolls. Consequently, the
fact of overpayment has been established.
To determine the amount of the overpayment, the portion of SSA’s benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
8

5 U.S.C. § 8102.

9

Id. at § 8116.

10

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

11

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

12

E.L., Docket No. 20-0723 (issued October 15, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020); A.F.,
Docket No. 19-0054 (issued June 12, 2019).
13

E.L., id.

4

respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. SSA provided its rate with FERS and without FERS for specific periods from
June 1, 2017 through February 2, 2019. OWCP properly calculated the amount that it should have
offset during the relevant period based on SSA’s documentation.
The Board thus finds that an overpayment of compensation in the amount of $20,030.86
was created.14
On appeal appellant’s representative suggests that appellant did not receive an
overpayment of compensation because he did not receive SSA age-related retirement benefits as
part of an annuity for federal service. However, as explained above, the evidence of record
demonstrates that appellant did in fact receive SSA age-related retirement benefits as part of an
annuity for federal service for the period June 1, 2017 through February 2, 2019.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that an overpayment of compensation shall be
recovered by OWCP unless incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of FECA or be against equity and good
conscience.15 No waiver of payment is possible if appellant is with fault in helping to create the
overpayment.16
Section 10.433(a) of OWCP’s regulations provides that OWCP:
“[M]ay consider waiving an overpayment of compensation only if the individual to
whom it was made was not at fault in accepting or creating the overpayment. Each
recipient of compensation benefits is responsible for taking all reasonable measures
to ensure that payments he or she receives from OWCP are proper. The recipient
must show good faith and exercise a high degree of care in reporting events which
may affect entitlement to or the amount of benefit…. A recipient who has done
any of the following will be found to be at fault in creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should
have known to be material; or

14

See E.L., id.; L.W., Docket No. 19-0787 (issued October 23, 2019); L.L., Docket No. 18-1103 (issued
March 5, 2019).
15

5 U.S.C. § 8129; see A.S., Docket No. 17-0606 (issued December 21, 2017).

16

J.S., Docket No. 19-1363 (issued April 10, 2020); Robert W. O’Brien, 36 ECAB 541, 547 (1985).

5

(3) Accepted a payment which he or she knew or should have known
to be incorrect. (This provision applies only to the overpaid
individual.)17
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.18
When a claimant receives benefits from the SSA as part of an annuity under FERS
concurrently with disability/wage-loss compensation, the claimant should be found without fault
unless there is evidence on file that the claimant was aware that the receipt of full SSA age-related
retirement benefits concurrent with disability/wage-loss compensation was prohibited.19
OWCP’s procedures in effect at the time of the April 8, 2019 decision provided that in
situations where an equally valid argument could be made both for “without fault” and “with fault,”
the benefit of the doubt should go to the claimant, and a finding of without fault should be made
consistent with the nature of FECA as social legislation designed to benefit entitled employees.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the overpayment of compensation.
As noted above, the Federal (FECA) Procedure Manual identifies that, regarding an SSA
dual benefits scenario, where the claimant receives SSA benefits as part of an annuity under FECA,
which results in an overpayment, the claimant should be found not at fault unless there is evidence
on file that the claimant was aware that the receipt of full SSA age-related retirement benefits
concurrent with disability/wage-loss compensation was prohibited.21 Because of the complex
nature of SSA benefits administration, appellant could not have been expected to be able to
calculate the amount of an offset. Therefore, he could not reasonably have been aware during the

17

20 C.F.R. § 10.433(a); see C.Y., Docket No. 18-0263 (issued September 14, 2018); see also 20 C.F.R. § 10.430.

18
Id. at § 10.433(b); see also Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Determinations in an Overpayment, Chapter 6.300.4(d) (September 2018).
19

Id. at Chapter 6.300.4(g)(4) (September 2018).

20

Id. at Chapter 6.300.4(c) (September 2018).

21

Id.

6

relevant period that his concurrent receipt of SSA age-related retirement benefits constituted an
actual prohibited dual benefit.22
As previously noted, to determine if an individual was at fault with respect to the creation
of an overpayment, OWCP examines the circumstances surrounding the overpayment. The degree
of care expected may vary with the complexity of those circumstances and the individual’s
capacity to realize that he or she is being overpaid.23 Therefore, based on the circumstances
described, OWCP has not met its burden of proof to establish that he was at fault in the creation
of the overpayment for the period June 1, 2017 through February 2, 2019.
As appellant was not at fault in the creation of the overpayment for the period June 1, 2017
through February 2, 2019, the case will be remanded to OWCP to issue a new preliminary
determination on the issues of waiver and, if warranted, recovery of the overpayment which affords
him the right to request a prerecoupment hearing on those two issues.24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$20,030.86, for the period June 1, 2017 through February 2, 2019, because he concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation for this period
without appropriate offset. The Board further finds however, that OWCP improperly determined
that appellant was at fault in the creation of the overpayment of compensation.

22
R.B., Docket No. 19-0023 (issued September 3, 2020) (issued December 23, 2019) (OWCP found that appellant
was without fault in the creation of an overpayment caused by dual receipt of SSA age-related retirement benefits and
FECA wage-loss compensation because he could not have known the amount of offset to be applied to his wage-loss
compensation payments). See also D.G., Docket No. 19-0684 (issued December 24, 2019) (The Board affirmed
OWCP’s finding that, due to the complexity of SSA age-related benefits administration, appellant was not with fault
in the creation of the overpayment because he could not have reasonably known that an improper payment had
occurred. OWCP determined that appellant was not expected to be able to calculate the amount of the offset).
23

Supra note 21.

24

See 20 C.F.R. §§ 10.431(d) and 10.439.

7

ORDER
IT IS HEREBY ORDERED THAT the April 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and reversed in part.
Issued: March 16, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8