United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
MINNESOTA AIR NATIONAL GUARD,
Duluth, MN, Employer
__________________________________________

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

Docket No. 16-1720
Issued: April 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 24, 2016 appellant filed a timely appeal from a March 17, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the most recent merit decision, dated December 18, 2014, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant has submitted new evidence on appeal, consisting of a United States Postal
Service tracking receipt. However, the Board cannot consider this evidence as its review of the case is limited to the
evidence of record which was before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c); see Steven S.
Saleh, 55 ECAB 169 (2003).

On appeal appellant argues that his request for reconsideration was sent in a timely
manner.
FACTUAL HISTORY
On September 15, 2000 appellant, then a 43-year-old vehicle maintenance technician,
filed an occupational disease claim (Form CA-2) alleging that factors of his federal employment
since 1996 had caused severe tendinitis and swelling in both elbows and forearms. By decision
dated April 17, 2001, OWCP accepted his claim for bilateral medial and lateral epicondylitis.
Appellant initially received compensation benefits on the supplemental roll. As of May 18,
2003, he received benefits on the periodic rolls.
Based upon a May 29, 2007 report from appellant’s treating physician, Dr. Leo Hise, a
Board-certified orthopedic surgeon, which provided work restrictions, appellant was referred for
vocational rehabilitation services. Appellant was provided rehabilitation and placement
assistance. On February 24, 2009 OWCP advised appellant that it proposed to reduce his
compensation benefits as the selected positon of Supervisor, Engine Repair, was medically and
vocationally suitable and represented his wage-earning capacity. By decision dated March 25,
2009, OWCP finalized the proposed reduction of appellant’s compensation benefits.
On April 10, 2009 appellant requested a review of the written record by an OWCP
hearing representative. By decision dated December 17, 2009, the OWCP hearing representative
reversed the March 25, 2009 reduction of appellant’s benefits, finding that OWCP had not
established that the position of Engine Repair Supervisor existed in sufficient quantities to be
reasonably available.
On May 9, 2012 OWCP proposed a reduction of appellant’s compensation benefits based
upon his capacity to earn wages in the selected positon of Automobile Repair-Service Estimator.
On July 11, 2012 OWCP finalized a proposed reduction of compensation, based upon
appellant’s completion of vocational rehabilitation and the rehabilitation counselor’s finding that
the position of Automobile Repair-Service Estimator was medically and vocationally suitable,
and fairly and reasonably represented his wage earning capacity.
On August 6, 2012 appellant requested a review of the written record by an OWCP
hearing representative.
By decision dated November 28, 2012, a hearing representative affirmed OWCP’s
July 11, 2012 decision. She noted that appellant had developed new conditions since his workrelated injury. The hearing representative noted new conditions occurring after the work injury
were not to be considered in evaluating the suitability of a selected position, and that appellant
had not presented medical evidence sufficient to establish that he was unable to work the
selected positions, due to preexisting or accepted conditions. She further noted that the
rehabilitation counselor reasonably determined that appellant had sufficient skills for the selected
position, and that the position was reasonably available.

2

On January 3, 2013 appellant requested reconsideration. He argued that he was in worse
physical condition than he was when he stopped work and stated that he would undergo a
functional capacity evaluation (FCE).
By decision dated April 4 2013, OWCP reviewed the merits of appellant’s claim and
affirmed the November 28, 2012 decision. It noted that there was no evidence of a material
worsening of his conditions attributable to his federal employment.
On December 2, 2013 appellant again requested reconsideration. He enclosed several
medical reports from his treating physicians along with physical therapy notes.
By decision dated February 21, 2014 OWCP reviewed the merits of appellant’s claim and
affirmed the April 4, 2013 decision. It noted that the reports received had referenced bilateral
shoulder pain along with his accepted conditions, which OWCP found to be insufficient to
establish that he was incapable of performing the selected position.
On July 8, 2014 appellant again requested reconsideration. He enclosed an FCE
evaluation with his request, along with several reports and a narrative statement.
By decision dated December 18, 2014 OWCP reviewed the merits of appellant’s claim
and affirmed the February 21, 2014 decision. It noted that appellant’s contention that the
vocational rehabilitation efforts had been inadequate had already been addressed in an earlier
decision. OWCP further noted that the FCE indicated that he was capable of working within the
physical requirements of the selected position.
Appellant continued to resubmit medical evidence previously of record.
On
November 16, 2015 OWCP received a November 9, 2015 report from Dr. Michael Mollen, a
family practitioner, who related that appellant had requested that he prepare a note regarding the
current status of appellant’s bilateral chronic epicondylitis and repetitive strain injury.
Dr. Mollen related that he examined appellant last week, but had known appellant for many
years from his previous practice. He further noted that he had reviewed appellant’s FCE of
June 4, 2014 and, based on his current examination, he concluded that appellant’s status was
unchanged.
On December 21, 2015 appellant again requested reconsideration. With his request,
appellant enclosed a narrative statement, noting that he had recently undergone knee replacement
surgery, that the symptoms in his knees had prevented him from undertaking daily activities, and
that he knew the “cut-off time” for reconsideration was close.
By decision dated March 17, 2016, OWCP denied appellant’s request for reconsideration
as it was untimely filed and failed to demonstrate clear evidence of error. OWCP noted that the
decision for which appellant requested reconsideration was dated December 18, 2014, but that it
had not received his request for reconsideration until December 21, 2015.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
an application for reconsideration must be received by OWCP within one year of the date of
3

OWCP’s decision for which review is sought.3 The Board has found that the imposition of the
one-year limitation does not constitute an abuse of the discretionary authority granted OWCP
under section 8128(a) of FECA.4
OWCP may not deny an application for review solely on the grounds that the application
was not timely filed. When an application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of
error.5 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review shows clear evidence of error on the part of OWCP.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.7 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.11
The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.12 In order to establish clear evidence of error, the evidence
submitted must not only be of sufficient probative value to create a conflict in medical opinion or
establish a clear procedural error, but must be of sufficient probative value to prima facie shift

3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a)
(February 2016). OWCP’s procedure further provides, “The term ‘clear evidence of error’ is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made a mistake. For
example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing
that the claimant had a dependent, but the award was not paid at the augmented rate.”
7

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

8

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

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the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.13
ANALYSIS
In its March 17, 2016 decision, OWCP properly determined that appellant failed to file a
timely application for review. Although the request was dated December 15, 2014, OWCP
regulations provide that the request must be received within one-year time of the date of the
original OWCP decision.14 OWCP’s imaging system recorded the receipt of appellant’s request
on December 21, 2015, which was more than one year after OWCP’s December 18, 2014
decision. Therefore, appellant must demonstrate clear evidence of error.
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP in its wage-earning capacity decision. He did not submit the type of positive, precise,
and explicit evidence manifesting on its face that OWCP committed an error.15
Following the December 18, 2014 merit decision, appellant continued to resubmit
medical evidence previously of record. He also submitted the November 9, 2015 report from
Dr. Mollen wherein he related that appellant’s status was unchanged. The medical reports
submitted on reconsideration were duplicative of reports previously of record. Appellant has not
explained how the resubmission of these reports raise a substantial question concerning the
correctness of OWCP’s decision. None of these medical reports were sufficient to shift the
weight of the evidence in appellant’s favor and do not demonstrate clear evidence of error.16 The
Board notes that clear evidence of error is intended to represent a difficult standard. Even the
submission of a detailed well-rationalized medical report which, if submitted before the denial
was issued, would have created a conflict in medical opinion requiring further development, is
not clear evidence of error.17
With his December 21, 2015 request for reconsideration, appellant also enclosed a
narrative statement. He noted that he had recently undergone knee replacement surgery, that the
symptoms in his knees had prevented him from undertaking daily activities, and that he knew the
“cut-off time” for reconsideration was close. The basis for appellant’s reduction of
compensation was appellant’s completion of vocational rehabilitation and the counselor’s finding
of positions that were medically and vocationally suitable and fairly and reasonably represented
his wage earning capacity.

13

See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

14

20 C.F.R. § 10.607(a).

15

Supra note 6.

16

C.W., Docket No. 16-1478 (issued December 23, 2016); see also G.B., Docket No. 16-0319 (issued
April 6, 2016).
17

D.G., 59 ECAB 455 (2008).

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While appellant addressed his disagreement with OWCP’s decision and submitted
additional factual details, his general allegations do not demonstrate clear evidence of error
because his arguments do not raise a substantial question as to the correctness of OWCP’s
decision. He did not submit the type of positive, precise, and explicit evidence that manifests on
its face that OWCP committed an error.18
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of OWCP’s December 18, 2014 decision, and OWCP
properly determined that appellant did not demonstrate clear evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 17, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

See A.S., Docket No. 16-0902 (issued September 28, 2016).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Pittsburgh, PA, Employer
__________________________________________
Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1789
Issued: August 22, 2014

Case Submitted on the Record

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

On July 24, 2013 appellant, through his attorney, filed a timely appeal from an Office of
Workers’ Compensation Programs’ (OWCP) decision dated July 3, 2013 finding that appellant
established a 17 percent permanent impairment of the left lower extremity for which he received
a schedule award. On appeal, counsel contended that OWCP erred in failing to send appellant
for an impartial medical examination. He also contends that the new second opinion physician
was biased. The Board docketed this appeal as No. 13-1789.
This case has previously been before the Board. In a decision dated February 26, 2013,
the Board remanded the case as it found an unresolved conflict in medical opinion between
appellant’s treating physician, Dr. Michael J. Platto, Board-certified physiatrist, and OWCP’s
medical adviser. The Board instructed OWCP to refer appellant for an impartial medical
examination to resolve the conflict between Dr. Platto and the medical adviser and to calculate
appellant’s impairment rating. The facts as set forth in the Board’s prior decision are hereby
incorporated by reference.1
OWCP failed to follow the Board’s instructions on remand. Instead of referring appellant
to an impartial medical examiner as instructed by the Board, it referred him to Dr. Victoria
1

Docket No. 12-1907 (issued May 13, 2013).

Langa, a Board-certified orthopedic surgeon, who conducted an additional second opinion
examination, following which OWCP asked a new medical adviser to further evaluate the
impairment. OWCP did not refer appellant to an impartial medical examiner as instructed by the
Board to resolve the conflict in medical opinion evidence.2
Accordingly, their remains an unresolved conflict between appellant’s treating physician,
Dr. Platto, who after applying the American Medical Association, Guides to the Evaluation of
Permanent Impairment, determined that appellant had a 32 percent impairment of the left lower
extremity and the opinion of the first OWCP medical adviser, who calculated an impairment
rating of 17 percent of the left lower extremity.
Therefore, the Board again remands the case to OWCP to refer appellant for an impartial
medical examination in order to resolve the conflict in the medical evidence. Following any
necessary further development, OWCP shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 3, 2013 is set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: August 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

2

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Referee
Examinations, Chapter 3.500.4 (July 2003).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-909
Issued: December 1, 2010

Case Submitted on the Record

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

JURISDICTION
On June 1, 2010 appellant filed a timely appeal from a February 1, 2010 merit decision of
the Office of Workers’ Compensation Programs. 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 established an employment-related disability from
August 7, 2004.
FACTUAL HISTORY
On July 10, 2002 appellant filed a Form CA-2a (notice of recurrence of disability and
claim for compensation) for the period commencing November 16, 2000. She indicated the date
of the original injury was March 18, 2000. She reported that she had initially returned to a lightduty job and then to full duty and on November 16, 2000 she had symptoms including leg
numbness. The claim was adjudicated as a new injury.

By letter dated June 10, 2005, the Office accepted the claim for aggravation of
lumbosacral sprain/strain. On October 20, 2005 appellant filed a claim for compensation (Form
CA-7) for the period November 16, 2000 to August 6, 2004. An employing establishment noted
that a notice of removal was issued February 17, 2004 for continuous absence from appellant’s
tour of duty. Effective October 5, 2004 appellant was removed from employment.
On March 31, 2006 the Office issued two compensation payments for the period
November 16, 2000 to December 31, 2001, and on April 7, 2006 a payment for the period
January 1, 2002 to August 6, 2004.
In a report dated November 1, 2004, Dr. John Hughes, a neurologist, reported appellant
had developed cervical pain about four months prior. He diagnosed lumbosacral mechanical
pain (discogenic) with left lumbosacral radiculopathy, cervical pain, occipital headaches, left
cervical radiculopathy, possible left carpal tunnel syndrome. Dr. Hughes stated appellant would
need a cervical MRI scan and “[t]his appears to be accident related as well.” He stated that in
terms of the lumbar pain, he did not think appellant was employable as a letter carrier.
In a report dated July 12, 2005, Dr. Louis Rose, an orthopedic surgeon, stated that
appellant had a low back injury on January 15, 1999, a reinjury on March 18, 2000 and another
injury on November 16, 2000. He provided results on examination and diagnosed lumbar
radiculopathy with probable herniated nucleus pulposus. Dr. Rose stated that appellant was
unable to work secondary to her injuries. By report dated November 2, 2007, he stated that she
was under treatment for her low back and had not yet been able to return to work at the
employing establishment.
On July 15, 2008 appellant filed a claim for compensation (Form CA-7) for the period
commencing August 7, 2004. The Office referred her for a second opinion examination by
Dr. Harvey Seigel, an orthopedic surgeon. In a report dated October 10, 2008, Dr. Seigel
provided a history, a detailed review of the medical evidence and results on examination. He
found no objective evidence for a diagnosis of a condition affecting the lower extremities.
Dr. Seigel noted nonphysiological responses to sensory testing, complete lack of atrophy in the
lower extremities and the lack of paraspinal muscle spasms. He stated that appellant was a
symptom magnifier. Dr. Seigel advised that she reached maximum medical improvement “years
ago” and there was no impairment.
In a report dated August 28, 2008, Dr. Olivera Pekovic, a rehabilitation specialist,
provided a history of an October 17, 2000 injury at work, and appellant had not worked since.
She diagnosed chronic low back, left lumbosacral radiculopathy.
By letter dated January 14, 2009, the Office advised appellant that employees entitled to
compensation benefits and Office of Personnel Management benefits must elect one of the plans.
Appellant elected benefits under the Act.
In a decision dated August 10, 2009, the Office denied the claim for wage-loss
compensation commencing August 7, 2004. It found that the medical evidence was insufficient
to establish the claimed period of disability.

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Appellant requested a hearing before an Office hearing representative, which was held on
November 12, 2009. In a report dated September 22, 2009, Dr. Hughes diagnosed cervical
herniated disc with C7 radiculopathy, lumbar herniated disc with left L5 radiculopathy, and left
shoulder derangement.
By decision dated February 1, 2010, an Office hearing representative affirmed the
August 10, 2009 Office decision. The hearing representative found the medical evidence was
insufficient to establish the claim.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.2 The term disability is defined as the incapacity because of an employment injury to earn
the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.3
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.4 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.5 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.6
To establish a causal relationship between the disability claimed and the employment
injury, an employee must submit rationalized medical evidence, based on a complete factual and
medical background, supporting such a causal relationship.7 Causal relationship is a medical
issue and the medical evidence required to establish a causal relationship is rationalized medical
1

5 U.S.C. §§ 8101-8193.

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Id.

6

Id.

7

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

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evidence.8 The opinion of the physician must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship.9
ANALYSIS
Appellant filed a claim for wage-loss compensation from August 7, 2004. In this case,
however, none of the attending physicians of record provided a rationalized medical opinion on
disability causally related to the November 16, 2000 employment injury. In a November 1, 2004
report, Dr. Hughes did not provide a complete history of the employment injury. He noted
cervical symptoms, but a cervical condition was not accepted by the Office and he did not
provide a rationalized opinion on causal relationship between a diagnosed cervical condition and
the November 16, 2000 employment injury.10 Dr. Rose briefly referred to three injuries in a
July 12, 2005 report, without providing a complete history of the November 16, 2000
employment injury. He stated appellant was unable to work “secondary to her injuries” without
providing a rationalized medical opinion based on a complete and accurate background.
Appellant submitted continuing treatment reports, but these reports did not discuss an
employment-related disability commencing August 7, 2004. The Board notes the accepted
condition was an aggravation of lumbosacral sprain/strain. With respect to additional diagnoses
of record, including cervical and left shoulder conditions, there must be a rationalized medical
opinion on causal relationship with employment.11 In addition, Dr. Seigel found no objective
evidence of a continuing employment-related disability. In an October 8, 2008 report, he
provided a detailed report that did not support an employment-related disability for the period
claimed. The Board finds the medical evidence is not sufficient to establish an employmentrelated disability commencing August 7, 2004.
On appeal, appellant contends that it is the Office’s burden of proof to terminate
compensation, and cited Regina C. Burke.12 In Burke, the Office paid compensation through
August 31, 1990 and then terminated compensation based only on evidence that the claimant had
been dismissed for misconduct. The Board found that Office had the burden to establish that the
employment-related disability had ceased. The present case is factually distinguishable as
appellant was not in receipt of wage-loss compensation payments. In July 2008, she filed a
CA-7 for the period commencing August 7, 2004. The Office did not terminate benefits because
appellant was dismissed, but found the medical evidence was insufficient to establish the claimed
period of disability. It is appellant’s burden of proof to establish her disability for work for the
period claimed. Appellant also argues that the Office should have issued a pretermination notice,
8

Elizabeth Stanislaw, 49 ECAB 540 (1998).

9

Leslie C. Moore, 52 ECAB 132 (2000).

10

It is appellant’s burden of proof to establish a specific condition is causally related to the employment injury,
and the evidence required is rationalized medical opinion evidence. See, e.g., Gary M. DeLeo, 56 ECAB 656,
660 (2005).
11

Id.

12

43 ECAB 399 (1992).

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citing Donna Schlenkrich.13 In Schlenkrich, the claimant was receiving wage-loss compensation
on the periodic rolls. It is well established a pretermination notice should be issued.14 In the
present case, appellant had received three payments in early 2006 covering the claimed period
November 16, 2000 to August 6, 2004. As noted, she had the burden to establish the claimed
period of wage loss and no pretermination notice was required.
CONCLUSION
The Board finds appellant did not meet her burden of proof to establish an employmentrelated disability commencing August 7, 2004.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 1, 2010 is affirmed.
Issued: December 1, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

Docket No. 06-411 (issued April 12, 2006).

14

Office procedures state that pretermination notice is required where benefits are being paid on the periodic
rolls. Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.6(a) (March 1997).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF DEFENSE, DEFENSE
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COMMISSARY AGENCY, Camp Pendleton, CA, )
Employer
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__________________________________________ )
J.D., widow of J.D., Appellant

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

Docket No. 19-1168
Issued: March 29, 2021

Case Submitted on the Record

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

JURISDICTION
On April 30, 2019 appellant, through counsel, filed a timely appeal from a February 15,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the employee
had more than 13 percent permanent impairment of his left upper extremity, for which he
previously received a schedule award.
FACTUAL HISTORY
On March 15, 2003 the employee, then a 52-year-old meat cutter, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his left shoulder lifting a piece of meat
while in the performance of duty. OWCP assigned the claim OWCP File No. xxxxxx748 and
accepted it for an aggravation of a left rotator cuff tear.3
On February 14, 2003 the employee underwent an arthroscopic subacromial
decompression and coupling of the distal clavicle of the left shoulder. On May 27, 2003 he
underwent a left shoulder mini open rotator cuff repair and on January 30, 2004 he underwent a
left shoulder mini open rotator cuff repair and lysis of adhesions.
In a report dated September 24, 2004, Dr. Thomas Wenyeh Wang, a Board-certified family
practitioner, diagnosed a left shoulder rotator cuff tear and retear, status post repairs. He provided
range of motion (ROM) measurements for the left upper extremity.
On October 25, 2006 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as
a district medical adviser (DMA), applied the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4 to Dr. Wang’s clinical
findings. He determined that the employee had 6 percent impairment of the left upper extremity
due to loss of ROM of the left shoulder and 6 percent impairment due to left shoulder muscle
weakness, for a total left upper extremity permanent impairment of 13 percent.
By decision dated November 29, 2007, OWCP granted the employee a schedule award for
13 percent permanent impairment of the left upper extremity.5 The award was for 40.56 weeks
and ran from the period November 25, 2007 to September 3, 2008.

3

OWCP previously accepted under OWCP File No. xxxxxx242 that on October 31, 2002 the employee sprained
his left rotator cuff. It also accepted under OWCP File No. xxxxxx555 that on December 18, 2002 he sprained/strained
his left shoulder. OWCP has administratively combined OWCP File Nos. xxxxxx242, xxxxxx555 and xxxxxx748
with the later serving as the master file.
4

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

5

By decision dated November 9, 2007, OWCP reduced the employee’s wage-loss compensation, effective
November 25, 2007, after finding that he had the capacity to earn wages in the selected position of computer support
technician. By decision dated June 26, 2008, an OWCP hearing representative affirmed the November 9, 2007
decision, and by decision dated November 19, 2008, OWCP denied modification of the June 26, 2008 decision.
OWCP subsequently accepted that the employee sustained a recurrence of disability and paid him wage-loss
compensation for total disability on the periodic rolls beginning March 15, 2009.

2

On March 3, 2009 the employee underwent arthroscopic surgery with a mini open rotator
cuff repair of the left shoulder.6
On June 10, 2015 OWCP expanded its acceptance of the claim to include aggravation of
left shoulder arthritis.
The employee underwent a functional capacity evaluation (FCE) on November 19, 2015.
The FCE provided ROM measurements for the shoulders bilaterally.
In a report dated April 11, 2017, Dr. Wang reviewed the results from the November 19,
2015 FCE. He reviewed ROM measurements for the bilateral shoulders and found that the
employee had normal strength. Dr. Wang diagnosed left rotator cuff syndrome.
In an April 26, 2017 impairment rating report, Dr. Mesfin Seyoum, who specializes in
family medicine, indicated that he had reviewed the evidence of record, but had not physically
examined the employee. He diagnosed a rotator cuff tear and strain and adhesive capsulitis of the
left shoulder. Utilizing the Dr. Wang’s physical findings, and referencing the sixth edition of the
A.M.A., Guides, Dr. Seyoum identified the class of diagnosis (CDX) as a class 3 left shoulder
arthroplasty according to Table 15-5 on page 405, which yielded a default impairment rating of 30
percent. He applied a grade modifier for physical examination (GMPH) of two and a grade
modifier for clinical studies (GMCS) of two, and found that a grade modifier for functional history
(GMFH) was not applicable due to lack of information available to review. Dr. Seyoum utilized
the net adjustment formula to find no change from the default value of 30 percent. He further
found 15 percent permanent impairment due to loss of ROM of the shoulder according to Table
15-34 on page 475. Dr. Seyoum used ROM measurements from November 2015.
On June 16, 2017 the employee filed a claim for an increased schedule award (Form CA-7).
On August 30, 2017 Dr. Morley Slutsky, Board-certified in occupational medicine and
serving as a DMA, noted that Dr. Seyoum had based his impairment calculations due to loss of
ROM of the employee’s left shoulder on a November 2015 FCE. He opined that the measurements
were invalid for purposes of rating impairment under the 6th edition of the A.M.A., Guides7 as the
evaluator had not obtained three ROM measurements per joint. Using the diagnosis-based
impairment (DBI) method, Dr. Slutsky identified the CDX as a class 1 full-thickness rotator cuff
tear with residual dysfunction according to Table 15-5 on page 403, which yielded a default value
of five percent. He applied a GMFH of one and found that a GMPH was not applicable as
Dr. Seyoum had not provided examination findings. Dr. Slutsky further noted that clinical studies
were used to identify the correct diagnosis class and thus a GMCS was inapplicable. He found no
adjustment from the default value of five percent for the left upper extremity after applying the net
adjustment formula. Dr. Slutsky opined that the employee had obtained maximum medical
6
By decision dated December 22, 2016, OWCP reduced the employee’s wage-loss compensation as he had the
capacity to earn wages in the selected position of customer complaint clerk. On January 1, 2017 the employee elected
to receive retirement benefits from the Office of Personnel Management in lieu of wage-loss compensation from
OWCP. By decision dated August 14, 2017, an OWCP hearing representative affirmed the December 22, 2016
decision.
7

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

3

improvement (MMI) on April 11, 2017, the date of Dr. Wang’s last examination. He noted that
the employee had previously received a schedule award for 13 percent permanent impairment of
the left shoulder and was thus not entitled to an increased schedule award.
By decision dated September 5, 2017, OWCP denied the employee’s claim for an increased
schedule award.
On September 11, 2017 the employee, through counsel, requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was
held on February 14, 2018.
By decision dated March 29, 2018, OWCP’s hearing representative vacated the
September 5, 2017 decision, finding that OWCP had not complied with FECA Bulletin No. 17-06.
He remanded the case for OWCP to refer the employee for a second opinion examination on the
issue of the extent of his left upper extremity impairment. OWCP’s hearing representative noted
that, if the A.M.A., Guides allowed for both the DBI and ROM methods to rate an impairment,
both should be calculated and the greater used to determine the impairment percentage.
In a report dated February 21, 2018, Dr. Seyoum reviewed Dr. Slutsky’s August 28, 2017
report. He noted that he had based his impairment rating on a November 2015 report from
Dr. Wang as it was the most current evidence available for his review. Dr. Seyoum identified the
CDX as a class 1 acromioplasty using Table 15-5 on page 403 of the A.M.A., Guides, which he
found yielded a range of 8 to 12 percent. He applied GMPE and GMCS of two and found that a
GMFH was inapplicable. After using the net adjustment formula, Dr. Seyoum found 12 percent
permanent impairment of the left shoulder using the DBI method. He noted that he would need to
review three active ROM measurements for the shoulder in order to use the ROM method.8
On June 29, 2018 Dr. Slutsky affirmed prior impairment rating. He noted that Dr. Seyoum
had rated the employee for an acromioplasty, which he advised was not a ratable diagnosis.
Dr. Slutsky advised that he was basing his impairment rating on Dr. Wang’s findings in his
April 11, 2017 report. He asserted that Dr. Wang had failed to provide valid ROM measurements
and thus rated the employee using the DBI method. Dr. Slutsky noted that the A.M.A., Guides
found that an acromioplasty differed from status post distal clavicle excision. He reiterated that
the employee had five percent permanent impairment of the left upper extremity. As the employee
had previously received an award for 13 percent of the same joint, Dr. Slutsky found that he had
no additional impairment.
By decision dated July 24, 2018, OWCP denied appellant’s claim for an increased schedule
award.
On July 30, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held on December 13, 2018.

8

The employee passed away on April 22, 2018.

4

By decision dated February 15, 2019, OWCP’s hearing representative affirmed the July 24,
2018 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,9 and its implementing federal regulations,10 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a 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, published in 2009.11 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.12
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).13 Under the sixth edition, the evaluator identifies the impairment CDX, which
is then adjusted by GMFH, GMPE and GMCS.14 The net adjustment formula is (GMFH - CDX)
+ (GMPE - CDX) + (GMCS - CDX).15 Evaluators are directed to provide reasons for their
impairment choices, including the choices of diagnoses from regional grids and calculations of
modifier scores.16
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable.17 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
9

Supra note 2.

10

20 C.F.R. § 10.404.

11
For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
12

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

13

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
14

Id. at 494-531.

15

Id. at 411.

16

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

17

A.M.A., Guides 461.

5

measured and added.18 Adjustments for functional history may be made if the evaluator
determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable.19
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides, in part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)20
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”21
It is well established that benefits payable under 5 U.S.C. § 8107(c) are reduced by the
period of compensation paid under the schedule for an earlier injury if: (1) compensation in both
cases is for impairment of the same member or function or different part of the same member or
function or different parts of the same member or function; and (2) the latter impairment in whole
or in part would duplicate the compensation payable for the preexisting impairment.22
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in

18

Id. at 473.

19

Id. at 474.

20

FECA Bulletin No. 17-06 (issued May 8, 2017). See also L.G., Docket No. 18-0519 (issued March 8, 2019);
D.F., Docket No. 17-1474 (issued January 23, 2018).
21

Id.

22
20 C.F.R. § 10.404(d); see T.S., Docket No. 16-1406 (issued August 9, 2017); T.S., Docket No. 09-1308 (issued
December 22, 2009).

6

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.23
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP previously awarded the employee a schedule award for 13 percent permanent
impairment of the left upper extremity due to loss of ROM and muscle weakness of the left
shoulder.
The employee subsequently requested an increased schedule award. In a report dated
April 26, 2017, Dr. Seyoum reviewed the evidence of record, but did not physically examine the
employee. He identified the CDX as a left shoulder arthroplasty, which he found yielded an
impairment rating of 30 percent after the applicable grade modifiers. The employee, however, did
not undergo a shoulder arthroplasty, and thus Dr. Seyoum’s impairment rating using the DBI
method is of diminished probative value.24 Using ROM measurements from a 2015 report,
Dr. Seyoum found that the employee had 15 percent permanent impairment due to loss of ROM
of the left shoulder.
On August 30, 2017 Dr. Slutsky, the DMA, used the DBI method to assess the employee’s
impairment, noting that the ROM measurements used by Dr. Seyoum failed to meet the criteria of
the sixth edition of the A.M.A., Guides. Referencing Table 15-5 on page 403, he identified the
CDX as a class 1 full-thickness rotator cuff tear with residual dysfunction, which yielded a default
impairment rating of five percent. Dr. Slutsky applied a GMFH of one and found that a GMPH
and GMCS were not applicable. After applying the net adjustment formula, he concluded that the
employee had five percent permanent impairment of the left upper extremity.25
On February 21, 2018 Dr. Seyoum identified the CDX as a class 1 acromioplasty, for a
default value of 10 percent. However, an acromioplasty is not a listed diagnosis in Table 15-5 on
page 403 of the sixth edition of the A.M.A., Guides. Table 15-5 on page 403 provides a rating for
an acromioclavicular joint injury with a default value of 10 after a distal clavicle resection or
complete disruption of the joint capsule, which Dr. Slutsky determined was not applicable for the
employee. Dr. Seyoum’s impairment rating, consequently, fails to conform to the protocols for
rating permanent impairment under the A.M.A., Guides.26
By decision dated March 29, 2018, an OWCP hearing representative instructed OWCP to
refer the employee for a second opinion examination and to obtain ROM measurements that
23

See supra note 11 at Chapter 2.808.6(f) (March 2017).

24

See C.S., Docket No. 19-0172 (issued April 24, 2019).

25

Utilizing the net adjustment formula discussed above, (GMFH - CDX), or (1-1) = 0, yielded a zero adjustment.

26

See C.M., Docket No. 19-0125 (issued August 16, 2019); D.F., supra note 17; James Kennedy, Jr., 40 ECAB
620 (1989) (finding that an opinion which is not based upon the standards adopted by OWCP and approved by the
Board as appropriate for evaluating schedule losses is of little probative value in determining the extent of a claimant’s
permanent impairment).

7

conformed to the A.M.A., Guides in accordance with FECA Bulletin No. 17-06. However, prior
to the scheduled second opinion examination, the employee passed away.
On June 29, 2018 Dr. Slutsky reviewed Dr. Seyoum’s February 21, 2018 report and again
opined that the employee had five percent permanent impairment due to his rotator cuff tear with
residual dysfunction. He indicated that an acromioplasty was not a ratable diagnosis. Dr. Slutsky
advised that he was using findings from Dr. Wang’s April 11, 2017 impairment evaluation to rate
the employee’s impairment. He asserted that Dr. Wang’s ROM measurements were not valid.
Dr. Slutsky, however, failed to explain why the ROM measurements obtained by Dr. Wang were
insufficient for rating permanent impairment using the ROM method. As noted, after obtaining
all necessary medical evidence, the file should be routed to the DMA for an opinion concerning
the nature and percentage of impairment in accordance with the A.M.A., Guides, with the DMA
providing rationale for the percentage of impairment specified.27 The DMA failed to provide such
rationale. Consequently, the Board will remand the case for the DMA for clarification of his
opinion consistent with OWCP’s procedures set forth in FECA Bulletin No. 17-06.28
CONCLUSION
The Board finds that this case is not in posture for decision.

27

See J.S., Docket No. 18-1635 (issued May 15, 2019).

28

See J.F., Docket No. 17-1726 (issued March 12, 2018).

8

ORDER
IT IS HEREBY ORDERED THAT the February 15, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: March 29, 2021
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Montrose, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0416
Issued: November 12, 2020

Case Submitted on the Record

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

JURISDICTION
On December 30, 2019 appellant filed a timely appeal from a July 12, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $10,878.32, for which she was without fault, because she concurrently received FECA
wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 12, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

for the period January 1, 2017 through May 25, 2019 without an appropriate offset; and (2) whether
OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On January 5, 2017 appellant, then a 65-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she injured her left shoulder due to factors of her federal
employment, including lifting packages and cased mail, casing mail, and constantly moving mail.
She noted that she first became aware of her conditions and first realized their relationship to
factors of her federal employment on November 17, 2016. On the reverse side of the claim form
the employing establishment indicated that appellant stopped work on December 20, 2016.
Appellant’s retirement coverage was noted as Federal Employees Retirement System (FERS).
OWCP accepted her claim for a non-traumatic tear of the left supraspinatus tendon and an
aggravation of primary osteoarthritis of the left shoulder. It paid appellant intermittent wage-loss
compensation on the supplemental rolls commencing August 5, 2017. OWCP subsequently paid
her wage-loss compensation on the periodic rolls from February 3 until June 22, 2019, and
intermittently on the supplemental rolls again through August 2, 2019.
An April 23, 2019 letter from the employing establishment indicated that appellant had
FERS coverage and was entitled to receive SSA age-related retirement benefits. (Is “It” the
employing establishment)? It requested that OWCP determine if her SSA benefits qualified for
the FERS offset and subsequent reduction of FECA benefits.
On April 24, 2019 OWCP provided SSA with a FERS/SSA dual benefits calculation form.
It listed the computation period as November 2016 to April 2019.
On May 1, 2019 SSA completed the dual benefits calculation form, which indicated
appellant’s SSA benefit rates with a FERS offset and without a FERS offset from January 2017 to
January 2019. Beginning January 2017, the SSA rate with FERS was $1,209.30 and without FERS
was $839.70. Beginning December 2017, the SSA rate with FERS was $1,233.40 and without
FERS was $856.40. Beginning January 2018, the SSA rate with FERS was $1,248.00 and without
FERS was $856.40. Beginning December 2018, the SSA rate with FERS was $1,282.90 and
without FERS was $880.30. Beginning January 2019, the SSA rate with FERS was $1,289.30 and
without FERS was $880.30.
In a May 23, 2019 letter, OWCP indicated that it had determined that appellant had been
receiving both FECA wage-loss compensation and SSA age-related retirement benefits at the same
time, resulting in a dual prohibited benefit. It explained that her FECA compensation would be
reduced using SSA offset to $2,223.98 every 28 days.
In a June 4, 2019 letter, appellant indicated that she has received SSA benefits since
May 2018 and had reported receiving those benefits. She indicated that she did not understand
what OWCP meant by an SSA offset and requested clarification.
By preliminary determination dated June 12, 2019, OWCP informed appellant that she
received an overpayment of compensation in the amount of $10,878.23 because the SSA/FERS
offset was not applied to wage-loss compensation payments for the period January 1, 2017 through

2

May 25, 2019. It determined that she was without fault in the creation of the overpayment because
she relied on improper information given in writing by OWCP or by another government agency,
which she had reason to believe was connected with the administration of benefits. OWCP
explained its calculation of the overpayment, requested that appellant submit a completed
overpayment recovery questionnaire (Form OWCP-20) to determine a fair repayment method, and
advised her that she could request waiver of recovery of the overpayment. It requested financial
information, including copies of income tax returns, bank account statements, bills, pay slips, and
any other records to support income and expenses. OWCP advised appellant that it would deny
waiver if she failed to furnish the requested financial information within 30 days. It further notified
her that, within 30 days of the date of the letter, she could request a telephone conference, a final
decision based on the written evidence, or a prerecoupment hearing.
A June 21, 2019 letter from the employing establishment indicated that, while OWCP’s
June 12, 2019 preliminary determination found that appellant was overpaid FECA benefits from
January 1, 2017 through May 25, 2019, records showed that she had not started receiving FECA
wage-loss compensation until August 5, 2017. It requested clarification from OWCP regarding
FECA benefits appellant allegedly received from January 1 until August 4, 2017.
By decision dated July 12, 2019, OWCP finalized the June 12, 2019 preliminary
determination that appellant had received an overpayment of compensation in the amount of
$10,878.323 for the period January 1, 2017 through May 25, 2019 because it had failed to offset
her compensation payments by the portion of her SSA age-related retirement benefits that were
attributable to federal service. It further found that she was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment because the evidence of record
failed to establish that recovery of an overpayment would defeat the purpose of FECA or would
be against equity and good conscience. OWCP requested that appellant repay the overpayment in
full within 30 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.4 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.5
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are

3

The Board notes that the preliminary overpayment determination had calculated an overpayment in the amount of
$10,878.23, not $10,878.32.
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

3

attributable to the employee’s federal service.6 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefits earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.7
ANALYSIS
The Board finds that fact of overpayment has been established.
Beginning August 5, 2017, OWCP paid appellant FECA wage-loss compensation benefits
while she also received age-related retirement benefits from SSA. As noted, a claimant cannot
receive concurrent compensation for wage loss and SSA age-related retirement benefits
attributable to federal service for the same period.8 The fact of overpayment is therefore
established.
The Board further finds, however, that OWCP improperly calculated appellant’s
overpayment for the period January 1, 2017 through May 25, 2019. The record establishes that
OWCP paid her FECA wage-loss compensation benefits commencing August 5, 2017, not
January 1, 2017. Consequently, the SSA age-related retirement benefits appellant received prior
to August 5, 2017 were not dual benefits and should not have been included in the overpayment
calculation. Further, as appellant was paid only intermittent wage-loss compensation on the
supplemental rolls, the overpayment calculations must be based on actual payment amounts and
only for those dates on which wage-loss compensation was paid as set forth in the supplemental
rolls payment records.
On remand OWCP shall determine the exact amount of the overpayment of compensation
as of August 5, 2017. It should then issue a new preliminary overpayment determination with a
Form OWCP-20, an overpayment recovery questionnaire, and instructions for appellant to provide
supporting financial information. After this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.9
CONCLUSION
The Board finds that fact of overpayment has been established. The Board further finds
that this case is not in posture for decision regarding the amount of the overpayment.

6

20 C.F.R. § 10.421(d); J.R., Docket No. 17-0181 (issued August 12, 2020); see T.B., Docket No. 18-1449 (issued
March 19, 2019).
7

FECA Bulletin No. 97-09 (February 3, 1997); see also S.M., Docket No. 20-0152 (issued August 10, 2020); E.M.,
Docket No. 19-0857 (issued December 31, 2019).
8

Id.

9
L.B., Docket No. 19-1322 (issued January 27, 2020). Given the disposition of issue 1, issue 2 regarding waiver
is not in posture for decision.

4

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part, and this case is remanded for
further proceedings consistent with this decision of the Board.
Issued: November 12, 2020
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, CIMARRON HILLS
)
POST OFFICE, Colorado Springs, CO, Employer )
__________________________________________ )
F.S., Appellant

Appearances:
Antonio Morrelli, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1052
Issued: July 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 9, 2015 appellant, through his representative, filed a timely appeal from a
January 28, 2015 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.2
ISSUE
The issue is whether appellant sustained a left shoulder condition causally related to
factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new medical evidence with his appeal. The Board, however, has no jurisdiction to review
new evidence on appeal. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On May 28, 2014 appellant, then a 53-year-old city carrier, filed an occupational disease
claim alleging that he sustained a condition as a result of “repetitive motion from casing and
delivering mail.” He did not stop work. In a May 29, 2014 statement, appellant related that he
experienced progressively worsening shoulder pain that began at the start of his workday and
gradually increased throughout the day. He described his work duties.
By letter dated June 4, 2014, OWCP requested that appellant submit additional factual
and medical evidence, including a detailed report from a physician addressing the relationship
between any diagnosed condition and the identified work factors.
In a report dated March 19, 2014, received by OWCP on June 24, 2014, Dr. Max A.
Nevarez, Jr., who specializes in family medicine, evaluated appellant for left shoulder pain. He
noted that appellant had no history of trauma but did experience pain sorting mail in his job. On
examination, Dr. Nevarez found positive impingement signs without swelling, erythema, or
reduced motion. He diagnosed left shoulder tendinitis and rotator cuff syndrome.
On May 21, 2014 Dr. Nevarez discussed appellant’s complaints of continuing left
shoulder pain particularly when casing or holding mail. He diagnosed rotator cuff tendinitis and
suspected the condition was work related.
By decision dated July 7, 2014, OWCP denied appellant’s claim as the medical evidence
was insufficient to show that he sustained a diagnosed condition as a result of the identified work
factors.
On July 24, 2014 appellant requested an oral hearing before an OWCP hearing
representative.
In a report dated August 15, 2014, Dr. Nevarez diagnosed rotator cuff
tendinitis/impingement syndrome. He noted that appellant had worked at the employing
establishment “for a number of years.” Dr. Nevarez stated:
“[Appellant] has noted discomfort gradually starting around [six] months ago, and
has progressed in intensity. [He] states that this pain is exacerbated and increased
by his repetitive motion while casing mail and holding mail, utilizing his left arm.
[Appellant] denies any injury elsewhere. It is my opinion that [his] rotator cuff
injury is, in fact, a direct result of repetitive motion acquired while working at his
place of employment, namely the [employing establishment]. There is no other
etiology possible, other than the direct involvement of [his] employment.”
At the hearing, held on November 19, 2014, an OWCP hearing representative advised
appellant and his representative that Dr. Nevarez should submit a report explaining why casing
mail resulted in his condition.
By decision dated January 28, 2015, an OWCP hearing representative affirmed the
July 7, 2014 decision. She found that the Dr. Nevarez did not sufficiently explain his opinion
that work factors caused appellant’s left shoulder condition.
2

On appeal appellant argues that the reports from Dr. Nevarez support that his condition
resulted from work activities. He notes that he asked his orthopedist to submit reports, but was
“unable to force the issue.”
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;6 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;7 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.8
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant,9 must be one of reasonable medical certainty10 explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.11

3

5 U.S.C. § 8101 et seq.

4

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Ellen L. Noble, 55 ECAB 530 (2004).

6

Michael R. Shaffer, 55 ECAB 386 (2004).

7

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

8

Beverly A. Spencer, 55 ECAB 501 (2004).

9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

John W. Montoya, 54 ECAB 306 (2003).

11

Judy C. Rogers, 54 ECAB 693 (2003).

3

ANALYSIS
Appellant attributed his left shoulder condition to casing and delivering mail. OWCP
accepted the claimed employment factors. The issue, therefore, is whether the medical evidence
established a causal relationship between the claimed conditions and the identified employment
factors.
On March 19, 2014 Dr. Nevarez discussed appellant’s complaints of left shoulder pain.
He had no history of a specific injury beyond appellant’s statement that he experienced pain
sorting mail at work. Dr. Nevarez diagnosed left shoulder tendinitis and rotator cuff syndrome.
He did not specifically address the cause of the diagnosed conditions.
In a report dated May 21, 2014, Dr. Nevarez noted that appellant experienced continuing
left shoulder pain particularly when casing or holding mail. He diagnosed rotator cuff tendinitis
and suspected that the condition was work related. Dr. Nevarez’ suspicion that appellant’s
condition was related to employment factors is speculative and of diminished probative value.12
Further, he did not provide any rationale for his causation finding. A mere conclusion without
the necessary rationale explaining how and why the accepted exposure could result in a
diagnosed condition does not meet a claimant’s burden of proof.13
On August 15, 2014 Dr. Nevarez diagnosed rotator cuff tendinitis and impingement
syndrome. He discussed appellant’s history of increasing discomfort beginning six months
earlier aggravated by his repetitive duties of casing and holding mail. Dr. Nevarez found that
appellant’s rotator cuff injury was directly related to his repetitive work duties and that there was
no other potential etiology. He did not, however, provide any rationale for this conclusion. To
be of probative value, the physician must provide rationale for the opinion reached. Where no
such rationale is present, the medical opinion is of diminished probative value.14
On appeal appellant argues that the reports from Dr. Nevarez are sufficient to show that
he sustained a condition as a result of his work duties. Appellant also contends that his
orthopedist did not submit reports as requested. However, he has the burden to submit a
physician’s opinion that a condition is causally related to his federal employment that is
supported with affirmative evidence, explained by medical rationale, and based upon a complete
and accurate medical and factual background.15 This appellant has not done.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.

12

Id.

13

See supra note 8.

14

Jean Culliton, 337 ECAB 728 (1996).

15

See A.D., 58 ECAB 149 (2006); see S.S., 59 ECAB 315 (2008); T.F., 58 ECAB 128 (2006).

4

CONCLUSION
The Board finds that appellant has not established that he sustained a left shoulder
condition causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
R.P., Appellant
and
DEPARTMENT OF THE INTERIOR,
SANDSTONE VISITOR CENTER,
Sandstone, WV, Employer
_________________________________________

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

Docket No. 14-883
Issued: August 7, 2014

Case Submitted on the Record

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

JURISDICTION
On March 10, 2014 appellant filed a timely appeal of a September 30, 2013 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 established that he has more than two percent permanent
left upper extremity impairment, for which he received a schedule award.
FACTUAL HISTORY
On August 3, 2011 appellant, then a 61-year-old education technician, filed a traumatic
injury claim alleging that on July 30, 2011 he was bitten by a copperhead snake on the little
1

5 U.S.C. § 8101 et seq.

finger of the left hand while picking up a flattened box off the floor. OWCP accepted the claim
for toxic venom effect and left hand little finger open puncture wounds.
On February 27, 2013 appellant filed a claim for a schedule award.
On June 20, 2013 OWCP referred appellant to Dr. Barry Alan Levin, a Board-certified
orthopedic surgeon, for a second opinion impairment determination. In a July 26, 2013 report,
Dr. Levin opined that appellant reached maximum medical improvement approximately two
months after the snake bite or in September 2011. Appellant complained of numbness and
tenderness to his hand and had some impairment when making a fist. Dr. Levin reported a
normal sensation, some tenderness at the little finger metacarpophalangeal (MP) and proximal
interphalangeal (PIP) joints and noted that he lacked 25 degrees flexion at the little finger PIP
joint.
Using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), Dr. Levin concluded that appellant had a two percent
left upper extremity permanent impairment. Using Table 15.31, page 470, for finger range of
motion, appellant had 21 percent digital impairment of the little finger based on grade modifier 1
and 75 degrees of PIP joint range of motion. Dr. Levin stated that, according to Table 15-12,
page 421, appellant had a 21 percent little finger impairment which converted to a two percent
left upper extremity impairment.
On August 21, 2013 an OWCP medical adviser reviewed Dr. Levin’s July 26, 2013
report and concurred with the impairment determination. Using Table 15-31, page 470, the
medical adviser conclude that, under grade modifier 1, 75 degrees of flexion resulted in a 21
percent little finger digit impairment. Using Table 15-12, page 421,2 a 21 percent little finger
digit impairment represented a two percent left upper extremity impairment. The medical
adviser noted that this method of calculation was appropriate due to the lack of 25 degrees of
flexion at the PIP joint of the little finger.
By decision dated September 30, 2013, OWCP granted appellant a schedule award for
two percent impairment of the left upper extremity. The period of the award ran from July 27 to
September 8, 2013.
LEGAL PRECEDENT
Under section 8107 of FECA3 and section 10.404 of the implementing federal
regulations,4 schedule awards are payable for permanent impairment of specified body members,
functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
2

OWCP’s medical adviser noted the page number as 420 which appears to be a typographical error as
impairment value calculated from digit impairment is on page 421.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404

2

for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.5
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).6 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).7 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).8
Table 15-31 on page 470 of the sixth edition of the A.M.A., Guides provides guidelines
for evaluating impairment due to limited finger motion.9 An impairment rating for a given digit
may be converted to an impairment rating for an upper extremity using Table 15-12 on pages
421 through 423.10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical
adviser providing rationale for the percentage of impairment specified.11
ANALYSIS
OWCP accepted that appellant sustained a toxic venom effect and left hand little finger
open puncture wounds on July 27, 2013 as the result of being bitten by a snake at work. By
decision dated September 30, 2013, it granted him a schedule award for two percent permanent
impairment of his left upper extremity. The award was based on a July 26, 2013 report of
Dr. Levin, a Board-certified orthopedic surgeon, and the August 21, 2013 report by an OWCP
medical adviser. The Board finds that the medical evidence does not establish greater than two
percent left upper extremity impairment, for which he received a schedule award.

5

D.J., 59 ECAB 620 2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

6

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
7

A.M.A., Guides (6th ed. 2009), pp. 383-419.

8

Id. at 411.

9

Id. at 470, Table 15-31.

10

Id. at 421-23, Table 15-12.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).

3

Both Dr. Levin and OWCP’s medical adviser stated that appellant had 21 percent
impairment due to flexion of 75 degrees at the PIP joint of the little finger. The 21 percent digit
impairment for decreased range of motion in the left small finger, which when converted to an
upper extremity impairment using Table 15-12 on page 421, equaled a left upper extremity
impairment of two percent. Appellant has not submitted medical evidence showing entitlement
to a greater amount of schedule award compensation.
CONCLUSION
The Board finds that appellant is not entitled to greater than two percent impairment of
the left upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 30, 2013 is affirmed.
Issued: August 7, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, HILL AIR FORCE BASE,
UT, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-183
Issued: April 14, 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 October 23, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 9, 2007 merit decision concerning his entitlement to schedule
award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUES
The issues: (1) whether appellant met his burden of proof to establish that he has more
than a two percent permanent impairment of his left leg, for which he received a schedule award;
and (2) whether the Office used a proper pay rate for appellant’s schedule award compensation.
FACTUAL HISTORY
The Office accepted that on October 4, 2005 appellant, then a 48-year-old toolmaker,
sustained a partial tear of the medial meniscus of his left knee.1 The findings of the December 5,
1

Appellant’s weekly pay rate was $1,086.85 at the time of his October 4, 2005 injury.

2005 magnetic resonance imaging testing showed a complex medial meniscus tear of the left
knee. On February 28, 2006 appellant underwent a partial medial meniscectomy of his left knee.
The procedure was authorized by the Office.
Appellant stopped work after his surgery and returned to his regular work for the
employing establishment on April 3, 2006. On November 14, 2006 he underwent a left knee
chondroplasty of the patellofemoral joint and a prepatellar bursa incision. The procedure was
authorized by the Office. Appellant stopped work on November 14, 2006 and the Office
accepted that he sustained a recurrence of total disability starting that date.2 He returned to
limited-duty work in early January 2007.
In March 1 and April 25, 2007 reports, Dr. Douglas T. Shepherd, an attending Boardcertified physical medicine and rehabilitation physician, indicated that on examination appellant
had 130 degrees of left knee flexion and had normal strength and sensation in his left leg. He
stated that appellant was not entitled to any impairment rating based on narrowing of the joint
space of the left knee under Table 17-31 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001) because recent x-rays did not show
narrowing of the joint space which would qualify him for such a rating. Dr. Shepherd concluded
that appellant had a two percent permanent impairment of his left leg due to the left partial
medial meniscectomy of his left knee.
On October 5, 2007 an Office medical adviser indicated that he agreed with Dr. Shepherd
that appellant had a two percent permanent impairment of his left leg.
In an October 9, 2007 award of compensation, the Office granted appellant a schedule
award for a two percent permanent impairment of his left leg. The award ran for 5.76 weeks
from March 1 to April 10, 2007 and totaled $4,828.68. It was based on appellant’s weekly pay
rate as of November 14, 2006 ($1,117.75) which was multiplied by the 75 percent compensation
rate for employees with qualifying dependants to yield weekly compensation of $838.31.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5 It is well
2

On November 14, 2006 appellant’s weekly pay rate was $1,117.75.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

2

established that, in determining the amount of a schedule award for a member of the body that
sustained an employment-related permanent impairment, preexisting impairments of the body are
to be included.6
ANALYSIS -- ISSUE 1
The Office accepted that on October 4, 2005 appellant sustained a partial tear of the
medial meniscus of his left knee. On February 28, 2006 appellant underwent a partial medial
meniscectomy of his left knee. On November 14, 2006 he underwent a left knee chondroplasty
of the patellofemoral joint and a prepatellar bursa incision.
In March 1 and April 25, 2007 reports, Dr. Shepherd, an attending Board-certified
physical medicine and rehabilitation physician, properly concluded that appellant had a two
percent permanent impairment of his left leg due to the left partial medial meniscectomy of his
left knee.7 He also properly determined that appellant was not entitled to any impairment rating
based on narrowing of the joint space of the left knee under Table 17-31 because recent x-rays
did not show narrowing of the joint space which would qualify him for such a rating.8 On
October 5, 2007 an Office medical adviser indicated that he agreed with Dr. Shepherd that
appellant had a two percent permanent impairment of his left leg.
As the reports of the Dr. Shepherd and the Office medical adviser provided the only
evaluation which conformed with the A.M.A., Guides, they constitute the weight of the medical
evidence.9 The Office properly determined that appellant has a two percent permanent
impairment of his left leg and he has not shown that he has a greater impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8105(a) of the Act provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his
monthly pay, which is known as his basic compensation for total disability.”10 Section
8101(4) of the Act defines “monthly pay” for purposes of computing compensation benefits as
6

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b. (June 1993). This portion of Office procedure provides that the impairment rating of a
given scheduled member should include “any preexisting permanent impairment of the same member or function.”
7

See A.M.A., Guides 546, Table 17-33.

8

Id. at 544, Table 17-31. Moreover, there is no indication that such a process was caused by or preexisted the
October 4, 2005 employment injury. See supra note 6 and accompanying text regarding the inclusion of preexisting
impairments. Appellant would not be entitled to impairment ratings based on range of motion, strength or sensation
deficits as examination showed that he had 130 degrees of left knee flexion and had normal strength and sensation in
his left leg. See A.M.A., Guides 531-37, 550-53. There is no indication in the record that appellant had any additional
impairment rating due to his November 14, 2006 surgery, nor does the A.M.A., Guides support such an additional
rating.
9

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

10

5 U.S.C. § 8105(a). Section 8110(b) of the Act provides that total disability compensation will equal three
fourths of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).

3

follows: “[T]he monthly pay at the time of injury, or the monthly pay at the time disability
begins, or the monthly pay at the time compensable disability recurs, if the recurrence begins
more than six months after the injured employee resumes regular full-time employment with the
United States, whichever is greater....”11
ANALYSIS -- ISSUE 2
The record reflects that appellant sustained a recurrence of total disability on
November 14, 2006. The Office properly used appellant’s weekly pay rate at the time of this
recurrence ($1,117.75) to calculate the amount of his October 9, 2007 schedule award as this
recurrence occurred more than six months after he resumed full-time employment.12 There is no
indication that appellant sustained any later recurrences of disability which would have changed
his pay rate prior to October 9, 2007. The Office properly multiplied the $1,117.75 figure by the
75 percent compensation rate for employees with qualifying dependants to yield weekly
compensation of $838.31. It then properly calculated appellant’s total compensation for the
award by multiplying $838.31 times the 5.76 weeks the award ran.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a two percent permanent impairment of his left leg, for which he received a schedule
award. The Board further finds that the Office used a proper pay rate for appellant’s schedule
award compensation.

11

5 U.S.C. § 8101(4). The Board has held that, if an employee has one recurrence of disability which meets the
requirements of 8101(4), any subsequent recurrence would also meet such requirements and would entitle the
employee to a new recurrence pay rate. Carolyn E. Sellers, 50 ECAB 393 (1999).
12

See supra notes 10 and 11 and accompanying text. Appellant’s weekly pay on November 14, 2006 was greater
than his weekly pay on the date of injury.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 9, 2007 decision is affirmed.
Issued: April 14, 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

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