United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
AVIATION & MISSILE COMMAND,
Redstone, Arsenal, AL, Employer
__________________________________________

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

Docket No. 09-1715
Issued: March 17, 2010

Case Submitted on the Record

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

JURISDICTION
On June 16, 2009 appellant filed a timely appeal of the May 19, 2009 merit decision of
the Office of Workers’ Compensation Programs finding that she had no more than two percent
impairment of the left lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than two percent impairment of the left leg for
which she received a schedule award.
On appeal, appellant contends that she could not have reached maximum medical
improvement as she had not returned to work and has limited use of her left leg.
FACTUAL HISTORY
The Office accepted that on May 1, 2008 appellant, then a 62-year-old international
program management specialist, sustained a torn meniscus posterior horn of the left knee while

in the performance of her work duties. On June 26, 2008 she underwent excision of the plica
band, chondroplasty of the patellofemoral and medial compartment medial femoral condyle and
subtotal medial meniscectomy on the left knee. The surgery was performed by Dr. Louis G.
Horn, III, an attending Board-certified orthopedic surgeon.
On March 29, 2009 appellant filed a claim (Form CA-7) for a schedule award. By letter
dated April 8, 2009, the Office requested that appellant submit a medical report from her
attending physician, which provided an impairment rating, based on the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).
In a May 5, 2009 medical report, Dr. Horn diagnosed post-traumatic chondromalacia and
early osteoarthritis of the left knee. He advised that appellant reached maximum medical
improvement on August 18, 2008. On physical examination, Dr. Horn reported that the left knee
lacked 20 degrees of full flexion as compared to the right knee. There was decreased strength of
extension by 10 percent as compared to the right knee with quadriceps resistance testing. There
was no effusion and the knee was stable. On neurological examination, Dr. Horn advised that
motor and sensory were maintained. There were no atrophy ankylosis sensory changes.
Dr. Horn determined that appellant sustained a seven percent impairment of the left lower
extremity based on her Grade 3 chondromalacia of the medial femoral condyle and
patellofemoral joint, which were found at the time of surgery.1
On May 15, 2009 an Office medical adviser reviewed appellant’s medical records,
including Dr. Horn’s May 5, 2009 findings. He noted Dr. Horn’s finding that the left knee
lacked 20 degrees of flexion compared to the right knee and stated that he failed to provide the
actual range of motion in degrees.2 The medical adviser further stated that Dr. Horn found loss
of strength of the quadriceps but, did not find any atrophy. He determined that appellant reached
maximum medical improvement on August 18, 2008. The medical adviser determined that
appellant sustained two percent impairment of the left lower extremity based on her partial
medial meniscectomy (A.M.A., Guides 509, Table 16-3). He found that appellant was not
entitled to any adjustments for other functional deficits (A.M.A., Guides 516, 517, Table 16-6
and Table 16-7).3
By decision dated May 19, 2009, the Office granted appellant a schedule award for two
percent impairment of the left lower extremity.
1

In summarizing his findings, Dr. Horn noted that appellant had 10 degrees loss of flexion. However, this
appears to be a typographical error as he reported physical findings of 20 degrees loss of flexion.
2

The Office medical adviser noted that he would reconsider Dr. Horn’s opinion if he later provided the actual
range of motion in degrees.
3

The Office medical adviser demonstrated that there was no change by showing the following: Functional
History Grade Modifier (FHGM) mild problem was 1-1 = 0 (A.M.A., Guides 516, Table 16-6); Physical
Examination Grade Modifier (PEGM) mild problem was 1-1 = 0 (A.M.A., Guides 517, Table 16-7); and Critical
Study Grade Modifier (CSGM) mild problem was inapplicable, thereby resulting in zero. The Office medical
adviser subtracted the results of the PEGM zero from the results of the FHGM zero, resulting in a net adjustment of
zero.

2

LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.6 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.7 As of
May 1, 2009, the sixth edition of the A.M.A., Guides is to be used to calculate schedule awards.8
ANALYSIS
The Office accepted appellant’s claim for a torn meniscus posterior horn of the left knee.
Appellant underwent excision of the plica band, chondroplasty of the patellofemoral and medial
compartment medial femoral condyle and subtotal medial meniscectomy on June 26, 2008 to
treat the accepted left lower extremity condition. On May 19, 2009 she received a schedule
award for a two percent impairment of her left lower extremity. The Board finds that appellant
has not met her burden of proof to establish that she has greater impairment than that for which
she received an award.
On May 5, 2009 Dr. Horn, an attending physician, opined that appellant sustained a 7
percent impairment of the left lower extremity based on her Grade 3 chondromalacia of the
medial femoral condyle and patellofemoral joint. He advised that her left knee lacked 20 degrees
of full flexion as compared to the right knee and decreased strength of extension by 10 percent as
compared to the right knee with quadriceps resistance testing. Dr. Horn found no effusion and
stated that the knee was stable. He further found that motor and sensory were maintained.
Dr. Horn found no atrophy ankylosis sensory changes. He failed to explain how he arrived at his
impairment rating. Dr. Horn did not refer to any edition of the A.M.A., Guides or the specific
tables he applied to support his rating. It is well established that, when an attending physician’s
report provides an estimate of impairment but does not address how the rating was made under
the A.M.A., Guides, it is of reduced probative value. The Office may follow the advice of its
medical adviser or consultant.9

4

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

5

20 C.F.R. § 10.404.

6

5 U.S.C. § 8107(c)(19).

7

20 C.F.R. § 10.404.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a. (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008); Laura Heyen, 57 ECAB 435 (2006).

3

On May 19, 2009 the Office medical adviser reviewed Dr. Horn’s findings with reference
to the sixth edition of the A.M.A., Guides. He determined that under Table 16-3 on page 509 of
the A.M.A., Guides appellant sustained a two percent impairment of the left lower extremity due
to her June 26, 2008 partial medial meniscectomy. The medical adviser further determined that
she was not entitled to any adjustments for other functional deficits under Table 16-6 and Table
16-7 on pages 516 and 517, respectively of the A.M.A., Guides as he found a zero percent net
adjustment. He stated that, although Dr. Horn found that appellant’s left knee lacked 20 degrees
of flexion compared to the right knee, he did not provide the actual range of motion in degrees.
The medical adviser noted that Dr. Horn stated that he found loss of strength of the quadriceps
but, did not find any atrophy.
The Office medical adviser based his opinion on a proper review of the record and
appropriately applied the A.M.A., Guides to find that appellant had a two percent impairment of
the left lower extremity. There is no probative medical evidence to establish that appellant
sustained greater permanent impairment. The Board will affirm the May 19, 2009 decision.10
Appellant contended on appeal that she had not reached maximum medical improvement
because she was off work on August 18, 2008 and still experienced limited use of her left leg.
Schedule awards, however, commence on the date that the medical evidence establishes that the
employee has reached maximum medical improvement from the residuals of the employment
injury, i.e., that the injured member of the body has stabilized and will not improve further.11
Dr. Horn, appellant’s attending physician, determined that she had reached maximum medical
improvement by August 18, 2008. The Board finds that appellant’s contention is not supported
by the evidence of record.
CONCLUSION
The Board finds that appellant has failed to establish that she has more than two percent
impairment of the left leg, for which she received a schedule award.

10

See C.J., 60 ECAB ___ (Docket No. 08-2429, issued August 3, 2009); Federal (FECA) Procedure Manual, Part
2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter 2.808.6(d) (August 2002).
11

See James E. Earle, 51 ECAB 567 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the May 19, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 17, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF COMMERCE,
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U.S. PATENT & TRADEMARK OFFICE,
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Arlington, VA, Employer
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___________________________________________ )
F.G., Appellant

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

Docket No. 08-573
Issued: October 7, 2008

Case Submitted on the Record

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

JURISDICTION
On September 12, 2007 appellant filed a timely appeal of a June 13, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration as it was untimely and did not establish clear evidence of error. Because more
than one year has elapsed between the most recent merit decision of the Office dated April 24,
2003 and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits on the grounds that her request for reconsideration was not timely filed and
failed to demonstrate clear evidence of error.

FACTUAL HISTORY
This case has twice previously been on appeal before the Board.1 In a July 19, 2005
decision, the Board affirmed the September 10, 2004 decision of the Office which denied
appellant’s request for reconsideration. The Board found that the Office properly refused to
reopen appellant’s claim for further review of the merits of her claim. In a May 21, 2004
decision, the Board affirmed the Office’s June 30 and April 24, 2003 decisions. The Board
found that appellant failed to establish a recurrence of disability causally related to a
December 9, 1993 employment injury and the Office properly refused to reopen her case for
further reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). The facts and
the history contained in the prior appeals are incorporated by reference.
Appellant requested reconsideration on March 27, 2006. She alleged that, despite paying
her attorney to represent her, the attorney never explained her claim or did anything to represent
her. Appellant alleged that her attorney was subsequently suspended, that her attorney let her
case expire and she wished to pursue reconsideration.
On March 30, 2006 appellant’s congressional representative inquired into the status of
appellant’s claim. By letter dated March 31, 2006, the Office advised appellant’s congressional
representative that appellant needed to clarify whether she wished to pursue a review option
before the Board or the Office.
On April 18, 2006 appellant requested reconsideration. She alleged that the Board erred
by failing to address the issue of her on-the-job injury, which was partially accommodated for
the last five years of her employment, which could have caused further possibility of future
economic harm. Appellant also alleged that she had submitted enough evidence to prove her onthe-job injury and justify an award of compensation. She alleged that the prior decision should
be reversed and a ruling issued in her favor. By letter dated October 3, 2006, appellant’s
representative requested a copy of appellant’s claim file and requested the status of her claim.
On April 20, 2007 appellant requested the status of her claim. She requested that the
Office reverse its prior decision and provide her with compensation and restore her medical
coverage. On April 23, 25 and 26, 2007 appellant alleged that her injury was causally related to
her employment. She also requested a 100 percent disability rating from the Office as she was
awarded 100 percent disability from Social Security. On April 27, 2007 appellant repeated her
request for compensation. In a letter dated April 29, 2007, to her congressional representative,
she alleged that she had proven causal relationship in her claim.
By letter dated June 4, 2007, appellant requested reconsideration. She referred to Title 18
U.S.C. § 1922 and alleged that it was related to officer’s or employees of the United States and
their responsibilities which included filing and retaining reports. Appellant alleged that the
Office erred in its decision by failing to develop the medical evidence. She alleged that the
Office should have sent her for a second opinion examination to determine the extent of her
impairments.
1

Docket No. 05-454 (issued July 19, 2005); Docket No. 04-516 (issued May 21, 2004).

2

The Office received copies of letters dated April 28 and May 3, 2007 from appellant to
her congressional representative requesting assistance with her claim. It also received a copy of
appellant’s request for the name of her claims representative, and several status requests from
appellant in which she alleged that she had proven her claim and requested compensation, plus
several statements dated April 23, 24 and 27, 2007 indicating that she had proven causal
relationship.
In a decision dated June 13, 2007, the Office denied appellant’s reconsideration request
because it was not timely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
The Office’s imposition of a one-year time limitation within which to file an application
for review as part of the requirements for obtaining a merit review does not constitute an abuse
of discretionary authority granted the Office under section 8128(a).4 This section does not
mandate that the Office review a final decision simply upon request by a claimant.
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a). Thus, section 10.607(a) of the implementing
regulation provides that an application for reconsideration must be sent within one year of the
date of the Office decision for which review is sought.5
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.6

2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8128(a).

4

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

20 C.F.R. § 10.607(a).

6

20 C.F.R. § 10.607(b).

3

To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence that does not raise a substantial
question concerning the correctness of the Office’s decision is insufficient to establish clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by the Office 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 the Office.7 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.8
ANALYSIS
The Office correctly determined that appellant’s reconsideration request was untimely as
it was not filed within one year of the last merit decision. The most recent merit decision was the
Board’s May 21, 2004 decision which affirmed an Office decision finding that appellant failed to
establish a recurrence of disability causally related to a December 9, 1993 employment injury.
Appellant untimely requested reconsideration on several occasions, commencing on
March 27, 2006, more than one year after the most recent merit decision.
When an application for review is untimely, the Office will undertake a limited review to
determine whether the application presents clear evidence that the final merit decision was in
error.9 The issue in this case is whether appellant had demonstrated clear evidence of error on
the part of the Office in determining that she failed to establish a recurrence of disability causally
related to her December 9, 2003 employment injury. The Board finds that the evidence
submitted by appellant in support of her application for review does not raise a substantial
question as to the correctness of the Office’s decision and is insufficient to demonstrate clear
evidence of error.
Appellant made several arguments regarding the quality of service she received from her
attorney in relation to assisting her with her case. She also alleged that she continued to suffer
from her employment injury and demanded compensation. However, appellant’s argument’s
impugning the adequacy of her attorney’s representation and asserting injury-related residuals, is

7

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

8

Id.

9

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607 (b) provides: The Office will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of it in its
most recent decision. The application must establish, on its face, that such decision was erroneous. 20 C.F.R.
§ 10.607(b).

4

irrelevant to whether the Office made an error in its April 24, 2003 decision, which was decided
on the medical evidence of record.
With her June 4, 2007 request for reconsideration, appellant referred to Title 18 U.S.C.
§ 1922 and alleged that it was related to her claim because employees and supervisors had a duty
to file and retain reports. She also alleged that the Office failed to develop the medical evidence
and to send her to a second opinion examination to determine the extent of her impairments.
Appellant has not, however, explained how this raises a substantial question as to the correctness
of the Office’s decision that denied her claim for a recurrence of disability. To the extent that
appellant asserts that she was denied due process as the Office failed to assist her with properly
developing her claim, the Board notes that this argument would be related to a constitutional
question. The Supreme Court has held that constitutional questions are unsuited to resolution in
administrative hearing procedures.10 As the Board is an administrative body, it does not have
jurisdiction to review a constitutional claim such as that made by appellant.11 The federal courts
retain jurisdiction over decisions under the Act where there is a charge of a violation of a clear
statutory mandate or there is a constitutional due process claim.12 The Board notes that
appellant’s claim for a recurrence of disability was denied because she did not provide sufficient
medical evidence to establish that her disability for the claimed period was causally related to her
accepted employment injury. These arguments do not show clear evidence of error in the
Office’s decision denying her recurrence claim.
Appellant also provided copies of letters she had written to her congressman, and copies
of requests for the names of her claims representatives, and copies of several status requests and
repeated her claims that she had proven her case. She also alleged that she had submitted enough
evidence to prove her on-the-job injury and justify an award of compensation. Appellant alleged
that the prior decision should be reversed and a ruling issued in her favor to include
compensation and medical coverage. The Board notes that the underlying issue is medical in
nature, and these allegations do not show that the Office clearly erred in denying her claim for a
recurrence of disability.
Office procedures provide that the term “clear evidence of error” is intended to represent
a difficult standard. The claimant must present evidence which on its face shows that the Office
made an error (for example, proof of a miscalculation in a schedule award). Evidence such as a
detailed, well-rationalized report, which if submitted prior to the Office’s denial, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error
and would not require a review of a case.13
The Board finds that this evidence is insufficient to shift the weight of the evidence in
favor of appellant’s claim or raise a substantial question that the Office erred in its April 24,
10

See Johnson v. Robinson, 415 U.S. 361 (1974) and cases cited therein.

11

See Robert F. Stone, 57 ECAB 292 (2005); Diana L. Smith, 56 ECAB 524 (2005); Vittorio Pittelli, 49 ECAB
181 (1997).
12

See Andrew Fullman, 57 ECAB 574 (2006).

13

Annie L. Billingsley, 50 ECAB 210 (1998).

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2003 decision that denied appellant’s claim for a recurrence of disability. Therefore, the Board
finds that appellant has not presented clear evidence of error.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits on the grounds that her request for reconsideration was not timely filed and
failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 13, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 7, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, POSTAL
INSPECTION SERVICE, Washington, DC,
Employer
__________________________________________

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

Docket No. 09-1872
Issued: April 14, 2010

Case Submitted on the Record

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

JURISDICTION
On July 14, 2009 appellant filed a timely appeal from a June 16, 2009 merit decision of
the Office of Workers’ Compensation Programs denying his occupational disease claim.
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 that he sustained an injury in the performance
of duty.
FACTUAL HISTORY
On March 17, 2009 appellant, a 51-year-old postal inspector, filed an occupational
disease claim (Form CA-2) for headaches, hypertension, fatigue and memory loss that he
attributed to exposure to high levels of carbon monoxide produced by the employing
establishment’s heating, ventilation and air conditioning (HVAC) system. He worked on the
fifth floor of the employing establishment’s Chicago Carrier Annex from October 1997 to
October 2007, after which he transferred to another facility in San Francisco. Appellant alleged

that his medical conditions began in 1997 when he began working at the Chicago facility. On his
claim form, he noted that March 11, 2009 was the date he first became aware of his condition
and that it was caused by his federal employment. Appellant relates that, after testing at the
Chicago Carrier Annex in October 2008 it revealed high concentrations of carbon monoxide
produced by a flaw in the building’s HVAC system, the employing establishment closed the fifth
floor for five months to repair the boiler exhaust stacks.
The employing establishment submitted a report dated September 22, 2008 and a series
of e-mail messages documenting the results of the carbon monoxide testing as well as the status
of remedial measures taken. The highest carbon monoxide levels were found on the fifth floor’s
closed case room and sealed HVAC area. Investigation revealed that the source of the carbon
monoxide was a boiler exhaust stack. The fifth floor of the Chicago Carrier Annex was vacated
while the boiler exhaust stack was repaired. Employees returned to work on the fifth floor on
October 30, 2008.
On March 31, 2009 the Office contacted the employing establishment, requesting a
statement from a knowledgeable supervisor concerning the accuracy of appellant’s allegations.
Appellant submitted an April 8, 2009 note in which he described his employment duties
and his employment-related exposure. He alleged that he worked on the fifth floor of the
Chicago Carrier Annex for 10 years, 10 hours per day, 15 to 25 days per month.
In an April 20, 2009 note, Mark Gorbey, assistant inspector in charge, reported that
appellant transferred to San Francisco 10 months before the high carbon monoxide levels were
detected in the fifth floor at the Chicago Carrier Annex. He noted that no carbon monoxide
testing was performed at its Chicago Carrier Annex prior to August 2008. Mr. Gorbey related
that the building was closed for three months after high levels of carbon monoxide were
discovered on the fifth floor. He also noted that appellant’s exposure, after factoring in the
actual number of workdays per month and his travel schedule, was more reasonably 10 days per
month.
By decision dated June 16, 2009, the Office denied the claim because the evidence of
record did not demonstrate that appellant sustained an injury as defined by the Federal
Employees’ Compensation Act. It found that appellant had not established the alleged exposure
to carbon monoxide caused a medically-diagnosed injury.
LEGAL PRECEDENT
An employee seeking benefits under the Act1 has the burden of proof to establish the
essential elements of his claim by the weight of the evidence,2 including that he sustained an
injury in the performance of duty and that any specific condition or disability for work for which
he claims compensation is causally related to that employment injury.3 As part of his burden, the
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).

2

employee must submit rationalized medical opinion evidence based on a complete factual and
medical background showing causal relationship.4 The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
ANALYSIS
Appellant identified exposure to elevated concentrations of carbon monoxide at the
employing establishment’s Chicago Carrier Annex as the employment factor he deemed
responsible for his condition. His burden is to demonstrate that exposure to elevated carbon
monoxide levels on the fifth floor of the Chicago Carrier Annex caused a medically-diagnosed
disease or condition and that this disease or condition was causally related to his employmentrelated exposure. The Board finds appellant has not established that he sustained an injury in the
performance of duty.7
Appellant has not submitted medical evidence diagnosing any disease or condition for
which compensation is claimed.8 Although he alleges that his exposure to elevated carbon
monoxide concentrations caused headaches, hypertension, fatigue and memory loss, because he
does not qualify as a “physician” for purposes of the Act, his lay opinion is not relevant.9
Appellant has not submitted probative evidence containing a rationalized medical opinion
explaining how any such diagnosed disease or condition was causally related to his exposure to
elevated carbon monoxide levels while working on the fifth floor of the Chicago Carrier Annex.
For these reasons, he has not satisfied the basic elements of a claim for compensation.
An award of compensation may not be based on surmise, conjecture or speculation. The
mere fact that a condition manifests itself or worsens during a period of employment10 or that
4

G.T., supra note 3; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

Appellant submitted an internet article and a document concerning carbon monoxide exposure. Newspaper
articles, medical texts and excerpts from publications are of no evidentiary value on the issue of causal relationship
as they are of general application and are not probative as to whether specific conditions were the result of particular
circumstances of the employment. Eugene Van Dyk, 53 ECAB 706 (2002). Accordingly, this material has no
evidentiary value.
8

See Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving
declarations do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
9

5 U.S.C. § 8101(2). See Sheila Arbour (Victor E. Arbour), 43 ECAB 779 (1992).

10

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

3

work activities produce symptoms revelatory of an underlying condition11 does not raise an
inference of causal relationship between a claimed condition and employment factors or
entitlement to compensation under the Act. While appellant has identified employment factors
he deems responsible for his condition, he has not submitted probative medical evidence
containing a diagnosis of any disease or condition resulting from this alleged exposure. He also
has not submitted evidence demonstrating that he sustained a medically-diagnosed condition that
is causally related to his employment.
Because appellant has not submitted sufficient evidence supporting his claim the Board
finds appellant has not established that he sustained an injury in the performance of duty.
CONCLUSION
The Board finds appellant has not established that he sustained an injury in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 14, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE NAVY, CORPS OF
ENGINEERS, Fort Richardson, AK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1355
Issued: January 10, 2017

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 June 22, 2016 appellant filed a timely appeal from a June 2, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $15,743.14 from December 31, 2013 through April 2, 2016 because he concurrently
received FECA benefits and retirement benefits from the Social Security Administration (SSA)
without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment; and (3) whether it properly determined that it would recover the overpayment by
deducting $500.00 from appellant’s continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on December 5, 1988 appellant, then a 49-year-old drill rig
operatory helper, sustained degeneration of the lumbar or lumbosacral intervertebral disc under
File No. xxxxxx868. It further accepted that he sustained a temporary aggravation of
degenerative disc disease causally related to factors of his federal employment under File No.
xxxxxx922.2 OWCP paid appellant compensation for total disability beginning July 24, 1998.
In a form dated December 17, 2013, SSA advised appellant that his benefits were
changing from disability benefits to retirement benefits as he had reached the age of full
retirement. Appellant submitted the form to OWCP with a note indicating that SSA had changed
his benefit status from disabled to retired, and asked that it inform him if it affected his FECA
benefits.
On January 11, 2016 SSA provided the amount that appellant received in retirement
benefits including the amount earned through the Federal Employees’ Retirement System
(FERS) and the hypothetical amount that he would have received without FERS. Including
FERS, it indicated that he was entitled to a monthly pay rate of $1,821.30 effective
December 2013 and $1,852.50 effective December 2014 and December 2015. Without FERS,
appellant was entitled to a monthly payment of $1,267.50 effective December 2013 and
$1,289.00 effective December 2014 and December 2015.
On April 12, 2016 OWCP adjusted appellant’s compensation to offset the portion of his
SSA retirement benefits attributable to his federal service. It indicated that he would receive net
compensation of $2,183.12.
OWCP, on April 19, 2016, notified appellant of its preliminary determination that he
received an overpayment of $15,743.14 because it had failed to reduce his compensation benefits
from December 31, 2013 through April 2, 2016 by the portion of his SSA benefits that were
attributable to his federal service. It calculated the overpayment amount by determining the
difference between his SSA amount with and without FERS for each period. OWCP then
multiplied the daily offset amount by the number of days in each period to find a total
overpayment of $15,743.14. It further made a preliminary determination that appellant was at
fault in creating the overpayment. OWCP requested that he complete the enclosed overpayment
recovery questionnaire (Form OWCP-20) and submit supporting financial documents.
Additionally, it notified appellant that, within 30 days of the date of the letter, he could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing.
On April 27, 2016 appellant requested a telephone conference. He maintained that he
was not at fault in creating the overpayment as he had notified OWCP of his change in benefits
in December 2013. Appellant listed monthly income of $606.00 for his spouse, $1,716.00 in
SSA benefits, and $333.00 from a state fund, for total monthly income of $2,655.00. He also
listed expenses of $4,016.66, which included in part $600.00 for food, $100.00 for clothing,
2

The two claims have been administratively combined.

2

$1,105.95 for utilities, and $1,709.71 in other expenses.3 Appellant noted that he had assets of
$700.99.
OWCP held a telephone conference with appellant on May 5, 2016. Appellant noted that
he had submitted a copy to OWCP of a letter from SSA dated December 2013 informing him he
would begin receiving retirement benefits. He indicated that he also had monthly automobile
payments of $885.45. OWCP informed appellant that he was without fault in creating the
overpayment.
On May 12, 2016 appellant submitted copies of his bank statements.
By decision dated June 2, 2016, OWCP found an overpayment of compensation in the
amount of $15,743.14 for the period December 31, 2013 through April 2, 2016 as OWCP had
failed to offset appellant’s compensation payments for the portion of his SSA retirement benefits
that were attributable to his federal service. It found that he was not at fault in creating the
overpayment, but denied waiver as his income exceeded his expenses. OWCP noted that
appellant had not included his compensation of $2,183.12 from OWCP as part of his income.
When included, his income was $4,838.12 and his expenses were approximately $4,016.66,
which yielded a monthly surplus of $821.46. OWCP determined that it would recover the
overpayment by deducting $500.00 per month from continuing compensation payments.
On appeal appellant contends that OWCP did not ask him to provide his income, which
included his compensation and SSA benefits. He indicated that he only listed documented
expenses rather than actual amounts. Appellant maintained that he was not at fault in creating
the overpayment and repayment would cause financial hardship.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.4 Section 8129(a) of FECA provides that, in pertinent part, when an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.5
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an

3

Appellant listed expenses for house insurance of $101.26, trash removal of $25.79, life insurance of $308.25,
water of $26.90, $223.21 for his home telephone, $353.21 for his mobile telephone, $149.94 for natural gas, $187.50
for electricity, $140.00 for gasoline, $170.00 for automobile insurance, $600.00 for food, $100.00 for clothes,
$200.00 for medication, $885.45 for automobile expenses, $45.00 for personal necessities, and $500.00 for credit
card payments, for a total of $4,016.66.
4

5 U.S.C. § 8102.

5

Id. at § 8129(a).

3

employee received SSA benefits based on federal service, his compensation benefits shall be
reduced by the amount of SSA benefits attributable to his federal service.6
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply. In disability cases, FECA benefits will be reduced by
the SSA benefits paid on the basis of age and attributable to the employee’s federal service.7 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: Where a claimant had received SSA benefits, OWCP will obtain information from the
SSA on the amount of the claimant’s SSA benefits beginning with the date of eligibility to FECA
benefits.
SSA will provide the actual amount of SSA benefits received by the
claimant/beneficiary. It will also provide a hypothetical SSA benefit computed without the
FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual benefit
to determine the amount of benefits which are attributable to federal service and that amount will
be deducted from FECA benefits to obtain the amount of overpayment.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained degeneration of a lumbar intervertebral disc
under file number xxxxxx868 and an aggravation of degenerative disc disease under file number
xxxxxx922. It paid him compensation for total disability commencing July 24, 1998.
On December 17, 2013 SSA informed appellant that he would receive retirement benefits
beginning January 2014. Appellant provided the form to OWCP with a note advising that his
SSA payments changed from disability to retirement benefits. OWCP, however, failed to deduct
the portion of appellant’s retirement benefits attributable to his FERS service from his
compensation until April 2, 2016. Appellant cannot receive both wage-loss compensation and
federal retirement benefits concurrently.9 Consequently, he received an overpayment of
compensation.
OWCP calculated the amount of overpayment by determining the difference between his
SSA amount with and without FERS for each period and multiplying the daily offset amount by
the number of days in each period, to find a total overpayment of $15,743.41. There is no
contrary evidence of record and the Board, accordingly, finds an overpayment of compensation
in the amount of $15,743.41.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment must be recovered unless “incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
6

Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (January 1997);
Chapter 2.1000.11(a)(b) (February 1995).
8

See L.B., Docket No. 11-2076 (issued August 29, 2012).

9

See G.T., Docket No. 14-0653 (issued May 21, 2014).

4

would defeat the purpose of [FECA] or would be against equity and good conscience.”10
(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result
in waiver of the overpayment. OWCP must then exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience.11
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.12 An individual’s liquid assets
include but are not limited to cash, the value of stocks, bonds, savings accounts, mutual funds
and certificates of deposits.13 Nonliquid assets include but are not limited to the fair market
value of an owner’s equity in property such as a camper, boat, second home and furnishings, and
supplies.14
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his position for the worse.15 To establish that a valuable right has been relinquished, it
must be shown that the right was in fact valuable, that it cannot be regained and that the action
was based chiefly or solely in reliance on the payments or on the notice of payment.16
ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment of
compensation. The overpayment cannot be waived, however, unless recovery would defeat the
purpose of FECA or would be against equity and good conscience. In order to establish that
repayment of the overpayment would defeat the purpose of FECA, appellant must show that he

10

5 U.S.C. § 8129(a)-(b).

11

L.S., 59 ECAB 350 (2008).

12

20 C.F.R. § 10.436. OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).
13

Id.

14

Id.

15

20 C.F.R. § 10.437.

16

Id. at § 10.437(b)(1).

5

requires substantially all of his income to meet current ordinary and necessary living expenses
and that his assets do not exceed the resource base as determined by OWCP’s procedures.17
OWCP determined that appellant did not require substantially all of his income to meet
ordinary and normal living expenses. Appellant asserted that he had monthly income of
$2,655.00 on his overpayment recovery questionnaire and monthly expenses of $4,016.66 per
month. As noted by OWCP, however, he did not include his net workers’ compensation benefits
of $2,183.12 in his monthly income, which when added yielded a monthly income of $4,838.12.
An individual is deemed to need substantially all of his or her monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.18 As appellant’s current income exceeds his ordinary and necessary living expenses by
$821.46, he does not need substantially all of his income for ordinary and necessary living
expenses.19
Additionally, the evidence of record does not demonstrate that repayment of the
overpayment would be against equity and good conscience. Appellant submitted no evidence
that he relied upon the incorrect payments to his detriment or that he would experience severe
financial hardship attempting to repay the debt.20 Consequently, OWCP properly denied waiver
of the overpayment.
On appeal appellant argues that OWCP failed to ask him about his income, which
included his compensation and SSA benefits. He indicated that he only listed documented
expenses rather than actual amounts. OWCP, however, in its April 19, 2016 preliminary
determination of overpayment, requested that appellant complete the overpayment recovery
questionnaire and provide information and documentation regarding his income and expenses.
Appellant maintained that he was not at fault in creating the overpayment and repayment
would cause financial hardship. However, the fact that an error by OWCP resulted in an
overpayment does not relieve a claimant from liability for repayment.21 Further, as found by the
Board, the evidence does not demonstrate that appellant would experience financial hardship
repaying the overpayment.

17

Id. at § 10.436.

18

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1) (October 2004); see also Desiderio Martinez, 55 ECAB 336 (2004).
19

As appellant’s income exceeds his ordinary and necessary living expenses by more than $50.00, it is not
necessary for OWCP to consider whether his assets exceed the allowable resource base.
20

Supra note 15.

21

20 C.F.R. § 10.435(a); Lawrence J. Dubuque, 55 ECAB 667 (2004).

6

LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation FECA.22 Section 10.441(a)
of the regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [OWCP] the amount of the overpayment
as soon as the error is discovered or his attention is called to same. If no refund is
made, [OWCP] shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”23
ANALYSIS -- ISSUE 3
The Board finds that OWCP gave due regard to the financial information provided by
appellant. Appellant’s monthly household income totaled $4,838.12 and his expenses totaled
$4,016.66, a difference of $821.46. OWCP thus properly determined the rate of recovery should
be $500.00 from appellant’s continuing compensation payments. The Board will affirm
OWCP’s decision with regarding to rate of recovery.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $15,743.14 from December 31, 2013 through April 2, 2016 because he concurrently received
FECA benefits and retirement benefits from the SSA without an appropriate offset. The Board
further finds that OWCP properly denied waiver of recovery of the overpayment and properly
determined that it would recover the overpayment by deducting $500.00 from his continuing
compensation payments.

22

Lorenzo Rodriguez, 51 ECAB 295 (2000).

23

20 C.F.R. § 10.441(a).

7

ORDER
IT IS HEREBY ORDERED THAT the June 2, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 10, 2017
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR, BUREAU )
OF LAND MANAGEMENT, Boise, ID, Employer )
__________________________________________ )
P.D., Appellant

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

Docket No. 15-0032
Issued: March 11, 2016

Case Submitted on the Record

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

JURISDICTION
On October 6, 2014 appellant filed a timely appeal from a July 18, 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.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $4,106.06 was
created; and (2) whether OWCP properly denied waiver of the overpayment.
FACTUAL HISTORY
On December 29, 2000 appellant, then a 52-year-old equipment operator, filed a
traumatic injury claim (Form CA-1) alleging that he sustained a lower back injury in the
performance of duty on November 8, 2000. He indicated on the claim form that a tractor he was
1

5 U.S.C. § 8101 et seq.

operating dropped into a hole. On January 8, 2001 OWCP accepted a herniated disc. The record
indicates that appellant began receiving wage-loss compensation for total disability on the
periodic rolls. By decision dated March 6, 2006, OWCP denied a claim for a consequential
emotional condition.
On August 1, 2013 OWCP sent appellant an EN1032 form requesting information as to
employment, dependents, and receipt of other federal benefits. In a memorandum of telephone
call (Form CA-110) dated August 5, 2013, it indicated that he was unsure as to whether he was
under the Federal Employees’ Retirement System (FERS) for the purposes of completing the
EN1032 form. On August 13, 2013 the employing establishment stated that it had no records
with respect to appellant’s retirement. Appellant submitted an August 4, 2013 EN1032 form and
did not respond to a question as to receipt of Social Security Administration (SSA) benefits as
part of an annuity for federal service.
In a letter dated August 22, 2013, OWCP requested that appellant provide any
information regarding retirement benefits and SSA benefits. By Form CA-110 dated
November 13, 2013, it stated that he was covered under FERS, according to the employing
establishment. OWCP requested that the SSA provide information regarding receipt of SSA
benefits.
On May 9, 2014 OWCP received a response from SSA indicating that the effective date
was April 2013, with the SSA rate with FERS at $1,433.60, and without FERS $1,122.40. As of
December 2013, the SSA rate with FERS was $1,455.10 and without FERS $1,139.40. The
record contains an OWCP “FERS Offset Calculation” worksheet dated May 13, 2014. The
worksheet finds an overpayment of $2,503.28 from April 1 to November 30, 2013, and
$1,602.78 from December 1, 2013 to May 4, 2014.
By letter dated June 11, 2014, OWCP made a preliminary determination that an
overpayment of $4,106.06 was created between April 1, 2013 and May 4, 2014. It found that
appellant was not at fault in creating the overpayment and requested that he complete the
enclosed OWCP-20 overpayment questionnaire and submit supporting financial documents. No
response was received.
In a decision dated July 18, 2014, OWCP finalized its determination that an overpayment
of $4,106.06 was created. It denied waiver as appellant had not submitted any relevant financial
evidence to establish waiver of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8116(d)(2) requires that compensation benefits be reduced by “the amount of
any such [SSA] benefits payable that are attributable to Federal service.” OWCP’s procedures
provide that, while SSA benefits are payable concurrently with FECA benefits, in disability
cases, FECA benefit will be reduced by SSA benefits paid on the basis of age and attributable to
the employee’s federal service.2 OWCP obtains information from SSA on the amount of the
claimant’s benefits beginning with the date of eligibility to FECA benefits. SSA will provide the
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (June 2009).

2

actual amount of SSA benefits received by the claimant/beneficiary. It will also provide a
hypothetic SSA benefit computed without FERS covered earnings. OWCP will then deduct the
hypothetical benefit from the actual benefit to determine the amount of benefits which are
attributable to federal service and that amount will be deducted from FECA benefits to obtain the
amount of compensation payable.3
ANALYSIS -- ISSUE 1
In the present case, the record indicates that appellant was receiving wage-loss
compensation for total disability based on November 8, 2000 employment injury. Appellant
retired, and according to the SSA, he was covered under FERS and began receiving retirement
benefits as of April 1, 2013. As noted above, FECA benefits must be reduced by the many SSA
benefits paid on the basis of age and attributable to the employee’s federal service. For the
periods of April 1 to November 30, 2013 and December 1, 2013 to May 4, 2014, appellant’s
FECA benefits had not been reduced. Therefore, an overpayment of compensation was created.
The SSA provided the SSA rate with FERS and the hypothetical SSA rate without FERS.
The difference between the amounts must be deducted from FECA benefits, as noted above.
Based on the information provided by the SSA, OWCP determined that for the period April 1,
2013 to May 4, 2014, $4,106.06 should have been deducted from appellant’s continuing
wage-loss compensation. No contrary evidence was presented. The Board accordingly finds
that the record supports a finding that an overpayment of $4,106.06 was created in this case.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA4 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of [FECA] or would be against equity
and good conscience.”5 Since OWCP found appellant to be without fault in the creation of the
overpayment, OWCP may only recover the overpayment if recovery would neither defeat the
purpose of FECA nor be against equity and good conscience. The guidelines for determining
whether recovery of an overpayment would defeat the purpose of FECA or would be against
equity and good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of
Federal Regulations.
According to section 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary “needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses,” and, also, if the beneficiary’s assets do not exceed a specified amount as

3

See R.C., Docket No. 14-1383 (issued December 5, 2014); citing FECA Bulletin No. 97-09 (issued
February 3, 1997). See also P.G., Docket No. 13-589 (issued July 9, 2013).
4

Supra note 1.

5

5 U.S.C. § 8129(b).

3

determined by OWCP from data provided by the Bureau of Labor Statistics.6 For waiver under
the “defeat the purpose” of FECA standard, appellant must show that he needs substantially all
of his current income to meet current ordinary and necessary living expenses, and that his assets
do not exceed the resource base.7
Section 10.437 provides that recovery of an overpayment would be against equity and
good conscience if: (a) the overpaid individual would experience severe financial hardship in
attempting to repay the debt; (b) the individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.
With respect to the submission of financial evidence, OWCP regulations at 20 C.F.R.
§ 10.438 provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of FECA, or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver, and no further request for waiver shall be
considered until the requested information is furnished.”
ANALYSIS -- ISSUE 2
In the present case, OWCP sent appellant an OWCP-20 form and indicated that he
needed to complete the form and submit supporting financial documentation. As noted above, it
is his responsibility to submit the requested financial evidence. The record indicated that
appellant did not submit any financial evidence prior to the July 18, 2014 OWCP final decision.
Under OWCP regulations at 20 C.F.R. § 10.438, failure to submit the requested information in a
timely manner shall result in denial of waiver. The Board finds that OWCP properly denied
waiver in this case.
On appeal, appellant states that he contacted OWCP in July 2013 to make sure that there
was not an overpayment. He stated that the overpayment should be waived. The Board notes
that OWCP found that appellant was not at fault in creating the overpayment. Since he is not at
fault, appellant could be eligible for waiver of the overpayment. However, OWCP cannot make
a proper determination as to waiver unless he submits relevant financial evidence, which would
allow OWCP to make a determination as to whether recovery would defeat the purpose of FECA
6

OWCP procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (June 2009).
7

See Robert E. Wenholz, 38 ECAB 311 (1986).

4

or be against equity and good conscience. It properly denied waiver in this case. Appellant may
submit relevant evidence and request waiver, as indicated in 20 C.F.R. § 10.438(b).
CONCLUSION
The Board finds that an overpayment of $4,106.06 was created during the period April 1,
2013 to May 4, 2014. OWCP properly denied waiver as appellant did not submit any relevant
financial evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 18, 2014 is affirmed.8
Issued: March 11, 2016
Washington, DC

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

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

8

James A. Haynes, Alternate Judge, participated in the original decision, but was no longer a member of the
Board effective November 16, 2015.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZENSHIP & IMMIGRATION SERVICES,
Lee’s Summit, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0651
Issued: June 20, 2016

Case Submitted on the Record

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

JURISDICTION
On February 12, 2016 appellant, through counsel, filed a timely appeal from a
September 29, 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to an October 15, 2012 employment incident.
On appeal counsel argues that the medical evidence of record is sufficient to establish
appellant’s claim, or alternatively, to create a conflict of medical opinion requiring resolution by
an impartial medical specialist.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances
surrounding the prior appeal are incorporated by reference. The relevant facts are as follows.
On October 16, 2012 appellant, then a 50-year-old segment information security officer, filed a
traumatic injury claim (Form CA-1) alleging that on October 15, 2012 she experienced pain,
numbness, and tingling in her left lower back, left hip, and left leg after standing up from her
chair in the performance of duty.
OWCP denied appellant’s claim for compensation on March 26, 2013 finding that the
reports from her treating physician, Dr. Bradley A. Hiser, a neurosurgeon, were not based on an
accurate medical history. It also noted that there were inconsistencies between appellant’s
description of how the injury occurred and other evidence of record.
Appellant requested reconsideration on November 21, 2013. On March 17, 2014 OWCP
denied modification of the prior decision. It found that appellant’s physician had not addressed
the mechanism of injury, but had attributed causal relationship to the employment due to a
“temporal association.” Appellant again requested reconsideration on September 4, 2014.
Counsel cited a report from Dr. Hiser, dated July 11, 2014, in support of the request for
reconsideration. The July 11, 2014 report was not, however, of record. By decision dated
December 18, 2014, OWCP again denied modification, finding that the July 11, 2014 report
from Dr. Hiser was not of record.
Appellant again requested reconsideration on
December 23, 2014. A copy of the July 11, 2014 report from Dr. Hiser was submitted with this
request for reconsideration. In a decision dated March 19, 2015, OWCP affirmed its prior
decision, noting that appellant had not submitted sufficient medical evidence to establish a causal
relationship between the employment event of October 15, 2012 and her back conditions. It
noted that Dr. Hiser’s July 11, 2014 report did not provide sufficient medical rationale.
On April 27, 2015 appellant appealed to the Board. In an August 7, 2015 decision, the
Board remanded the case to OWCP for further development of the medical evidence, directing
OWCP to forward the case record and a statement of accepted facts to an appropriate specialist
for an evaluation and a rationalized medical opinion regarding appellant’s condition and possible
aggravation of a preexisting condition due to the employment incident of October 15, 2012. The
Board found that Dr. Hiser’s July 11, 2014 report, while not sufficient to discharge appellant’s
burden of proof, was sufficient to require further development. The Board’s review of the
previous medical evidence of record is res judicata.3
On August 13, 2015 OWCP forwarded the case record along with a statement of accepted
facts to Dr. John J. Sand, a Board-certified neurologist, for evaluation of whether appellant’s
back condition was caused or aggravated by the work incident of October 15, 2012.

2

Docket No. 15-1130 (issued August 7, 2015).

3

See R.L., Docket No. 15-1010 (issued July 21, 2015). See also A.P., Docket No. 14-1228 (issued
October 15, 2014). As the Board has previously reviewed the evidence of record submitted prior to OWCP’s
April 8, 2013 decision, the issue of its weight is res judicata and not subject to further consideration by the Board.

2

In a second opinion report dated September 23, 2015, Dr. Sand examined appellant and
opined that the etiology of appellant’s back condition was multifactorial, but was primarily due
to the patient’s massive obesity. He noted that her other risk factors included a prior history of
smoking, diabetes, and previous lumbosacral spine surgery in 2006. Dr. Sand noted that
appellant’s history of injury of getting up and down out of a sitting position and twisting in a
chair may have contributed somewhat, but it would have been a relatively minor contribution
caused by her own weight. He explained that there was “no clear clinical evidence that
[appellant’s] back position is caused by her work duties.” In fact, appellant had a prior lumbar
spine injury, and two lumbosacral surgical procedures in October and November 2012 that “had
a large contribution” from her previous lumbosacral condition and surgery.
Dr. Sand opined that appellant’s current condition was largely asymptomatic and was
primarily caused by typical lumbosacral spine deterioration from weight, diabetes, and smoking
along with morbid obesity causing increased stress on the spine. He related that she was capable
of performing her date-of-injury position and did not require additional treatment. Finally,
Dr. Sand noted that appellant should not perform repetitive spine movement including bending at
the waist or twisting while standing, or doing any lifting or pushing over 15 pounds.
By decision dated September 29, 2015, OWCP reviewed the merits of appellant’s claim
and denied modification its prior decision of December 18, 2014. It reviewed the report of
Dr. Sand, finding that he had opined that there was no clear clinical evidence that her back
condition was caused by duties of her employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA; that the claim was 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.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must initially be determined whether a fact of injury has been
established.7 First, the employee must submit sufficient evidence to establish that he or she
actually experienced the employment incident at the time, place, and in the manner alleged.8

4

5 U.S.C. § 8101 et seq.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

6

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

3

Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.9
The claimant has the burden of establishing by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.10 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.12 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.13 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.14
ANALYSIS
The Board finds that the medical evidence of record is insufficient to establish that the
employment incident of October 15, 2012 caused or aggravated appellant’s L3-4 disc herniation.
The Board further finds that Dr. Sand’s September 23, 2015 second opinion report represents the
weight of medical evidence.
In his September 23, 2015 second opinion report, Dr. Sand noted that “[appellant] had a
prior lumbar spine injury with etiology not elucidated and her job duties appear to be no more
stressful than typical home activities,” adding that “The current condition, now largely
asymptomatic, was primarily caused by typical lumbosacral spine deterioration from weight,
diabetes, and smoking along with morbid obesity causing increased stress on the spine.” He
emphasized that there was “no clear clinical evidence” that appellant’s back condition was
employment related. The Board finds that Dr. Sand’s opinion is well reasoned and clearly states

9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 5.
10

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

11

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

12

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
13

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

14

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

that appellant’s back conditions were not caused or aggravated by the incident of
October 15, 2012.
On appeal counsel contends that Dr. Sand’s statement that “While getting up and down
out of a sitting position and twisting in a chair [...] may contribute somewhat, it is a relatively
minor contribution [...]” establishes that the incident of October 15, 2012 aggravated her back
conditions. The Board notes, however, that this statement must be read in the context of the
remainder of Dr. Sand’s report. Dr. Sand goes on to opine plainly that “There is no clear clinical
evidence that [appellant’s] back position is caused by her work duties.” The bulk of Dr. Sand’s
report is devoted to explaining his opinion that appellant’s back conditions were not caused or
aggravated by the employment incident of October 15, 2012. As such, Dr. Sand’s comment that
the incident “may contribute somewhat” to her conditions does not overcome his statement that
there is “no clear clinical evidence” that her conditions were caused by the incident of
October 15, 2012.15
Counsel also contends that Dr. Sand’s report creates a conflict in the medical evidence
with Dr. Hiser. The Board notes that Dr. Hiser’s July 11, 2014 report was already evaluated in
the Board’s prior decision of August 7, 2015. The Board found in this prior decision that the
July 11, 2014 report was, while not completely rationalized; however, it was sufficient to warrant
further development on the part of OWCP. Consequently, OWCP referred appellant to Dr. Sand
whose report therefore represents the weight of medical evidence. As such there is no
unresolved conflict of well-rationalized medical opinions.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to an October 15, 2012 employment incident.

15

Medical opinions that a condition could be causally related to employment are speculative and therefore of
diminished probative value. See K.S., Docket No. 16-0035 (issued April 27, 2016).
16

It is well established that, where there exists opposing medical reports of virtually equal weight and rationale,
the case should be referred to an impartial medical specialist for the purpose of resolving the conflict. H.S., Docket
No. 10-1220 (issued May 24, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 29, 2015 is affirmed.
Issued: June 20, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Denise Prado, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1558
Issued: April 4, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 27, 2016 appellant, through her representative, filed a timely appeal of a May 26,
2016 merit decision and a June 16, 2016 nonmerit 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish more than
10 percent permanent impairment of her left upper extremity for which she previously received
schedule awards; and (2) whether OWCP properly denied appellant’s request for reconsideration
on the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 4, 2006 appellant, then a 40-year-old mail carrier, filed a recurrence claim
(Form CA-2a) alleging a recurrence of her medical condition on September 28, 2006 due to her
March 1, 1999 employment injury.3 OWCP developed this as a new occupational disease claim.
Appellant alleged that she had received continued medical treatment for her March 1, 1999
employment injury. The employing establishment noted that she had returned to full duty on
April 19, 2000. Appellant accepted a light-duty assignment at the employing establishment on
June 10, 2006.
In a report dated February 19, 2007, Dr. Roanna Garner, a Board-certified neurologist,
reviewed appellant’s diagnostic studies, including magnetic resonance imaging (MRI) scans
dated January 13 and November 14, 2005, and found that appellant’s left rotator cuff was intact
with mild tendinosis of the supraspinatus tendon. She diagnosed chronic cervical sprain, left
shoulder injury, and left elbow tendinitis. Dr. Garner opined that appellant had 20 percent joint
impairment, 5 percent upper extremity impairment of the left shoulder, and 5 percent cervical
spine impairment. She issued a similar report on July 26, 2007.
Appellant filed a schedule award claim (Form CA-7) on August 17, 2007. OWCP’s
medical adviser reviewed Dr. Garner’s reports and determined that appellant had no ratable
permanent impairment of her left arm pursuant to the American Medical Association, Guides to
the Evaluation of Permanent Impairment4 (A.M.A., Guides).
In a decision dated December 11, 2007, OWCP denied appellant’s request for a schedule
award finding that the medical evidence failed to establish a permanent measurable scheduled
impairment.
Appellant underwent an additional left shoulder MRI scan on March 5, 2012 which
demonstrated impingement and heterogeneous signals in the supraspinatus and infraspinatus
tendons. She underwent a cervical MRI scan on August 1, 2012 which indicated mild diffuse
asymmetrical disc bulges and posterocentral disc protrusions at C3-4 through C6-7 levels with
straightening of the cervical lordosis, suggestive of paraspinal muscle spasm. Appellant
3

OWCP had accepted appellant’s claim for cervical sprain and aggravation of left shoulder tendinitis on
June 21, 2006.
4

At the time of this report, OWCP relied on the fifth edition of the A.M.A., Guides to determine permanent
impairment for schedule award purposes. A.M.A., Guides, (5th ed. 2001). For new decisions issued after May 1,
2009 OWCP began using the sixth edition of the A.M.A., Guides. A.M.A., Guides, (6th ed. 2009); Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter 2.808.5a
(February 2013); id. Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

2

underwent a nerve conduction velocity study on April 3, 2013 which was read as abnormal and
indicative of a right C6 upper truck entrapment.
Appellant’s attending physician, Dr. Samy F. Bishai, an orthopedic surgeon, completed a
report on February 11, 2014 and opined that appellant had reached maximum medical
improvement. He noted that her left shoulder was tender overlying the anterior, lateral, and
posterior aspects of the shoulder joint. Dr. Bishai used the range of motion (ROM) method of
rating permanent impairment and found 80 degrees of flexion, 20 degrees of extension, 80
degrees of abduction, 15 degrees of adduction, 50 degrees of external rotation, and 40 degrees of
internal rotation. He found reduced sensation in the ulnar nerve distribution of the left hand with
a positive Tinel’s sign and a positive Phalen’s test. Dr. Bishai diagnosed chronic cervical strain,
cervical disc syndrome, internal derangement of the left shoulder, radiculopathy of the upper
extremities bilaterally, carpal tunnel syndrome of the left hand, and left shoulder impingement
syndrome. He opined that appellant’s left shoulder should be evaluated for permanent
impairment purposes based on her loss of ROM. Dr. Bishai referenced Table 15-34 of the
A.M.A., Guides5 and found that 80 degrees of flexion was nine percent permanent impairment,
that 20 degrees of extension was two percent permanent impairment, that 80 degrees of
abduction was six percent permanent impairment, that 15 degrees of adduction was one percent
permanent impairment, that 20 degrees of internal rotation was four percent permanent
impairment, and that 50 degrees of external rotation was two percent permanent impairment.
Dr. Bishai concluded that appellant had 24 percent permanent impairment of her left arm using
the ROM method.
Appellant again, on April 1, 2014, filed a claim for a schedule award (Form CA-7).
In a decision dated April 8, 2014, OWCP accepted the additional conditions of sprain of
the neck, calcifying tendinitis of the left shoulder, and aggravation of displacement of cervical
disc without myelopathy.
OWCP requested additional medical evidence on April 28, 2014 to support appellant’s
permanent impairment claim for schedule award purposes. It afforded her 30 days to respond.
Appellant underwent a cervical MRI scan on April 17, 2014 which demonstrated disc
bulge at C4-5 which indented the anterior thecal sac, disc herniation at C5-6, as well as disc
bulge, and herniation at C6-7.
Dr. Harvey Bishow, a Board-certified orthopedic surgeon, examined appellant on
May 19, 2014 also used the ROM method of rating permanent impairment. He found 160
degrees of abduction, 130 degrees of flexion, 60 degrees of internal rotation, and normal external
rotation. Dr. Bishow noted that appellant had requested a surgical evaluation of her left
shoulder. He then provided an impairment rating based on both her loss of ROM in the left
shoulder as well as a rating using the diagnosis-based impairment (DBI) method of impairment
rating for a partial rotator cuff tear. Dr. Bishow combined these impairment ratings to reach 13
percent permanent impairment of the left upper extremity.

5

A.M.A., Guides 475, Table 15-34.

3

OWCP’s medical adviser reviewed Dr. Bishow’s report and determined that appellant
was not entitled to a permanent impairment rating based on both DBI and ROM. He reviewed
her ROM examination findings and found that under Table 15-346 that she had eight percent
permanent impairment of her left upper extremity.
By decision dated June 26, 2014, OWCP granted appellant a schedule award for eight
percent permanent impairment of her left upper extremity. Appellant disagreed with this
decision and requested an oral hearing with a representative of OWCP’s Branch of Hearings and
Review on July 3, 2014.
On February 11, 2015 at the oral hearing before an OWCP hearing representative,
appellant’s representative contended that OWCP’s medical adviser improperly discounted
Dr. Bishai’s report and also improperly reduced Dr. Bishow’s impairment rating.
By decision dated April 30, 2015, OWCP’s hearing representative set aside OWCP’s
June 26, 2014 schedule award determination and remanded the case for referral to a second
opinion physician to determine which of appellant’s left shoulder conditions were related to her
employment and whether she had any permanent impairment of the left upper extremity
warranting a schedule award.
OWCP developed a statement of accepted facts on May 11, 2015 which listed the
accepted conditions as neck sprain, aggravation of left shoulder tendinitis, and aggravation of
displacement of cervical disc without myelopathy. It noted that appellant had three additional
claims, File No. xxxxxx171 under which OWCP accepted neck and left trapezius injuries,
File No. xxxxxx076 under which OWCP accepted lumbar and cervical strains, and File No.
xxxxxx535 under which OWCP accepted adhesive capsulitis of the right shoulder.
On May 18, 2015 OWCP referred appellant for a second opinion evaluation, with
Dr. William Dinenberg, a Board-certified orthopedic surgeon, to determine the extent of her
permanent impairment for schedule award purposes. Dr. Dinenberg completed a report on
June 9, 2015. He described appellant’s history of injury and noted that she was currently
working full-time light-duty. Dr. Dinenberg reviewed her medical history and diagnostic
studies. He performed a physical examination and found left shoulder ROM at 120 degrees of
flexion, 50 degrees of extension, 20 degrees of internal rotation, 70 degrees of external rotation,
90 degrees of abduction, and 40 degrees of adduction. Dr. Dinenberg noted that appellant had a
positive impingement sign with normal muscle strength and no acromioclavicular (AC) joint
pain to palpation. He reported that she had positive Phalen’s test, positive Tinel’s sign, and
positive carpal tunnel compression test at the left wrist. Dr. Dinenberg found decreased
sensation to light touch in the left small finger, ring finger, and thumb. He diagnosed
aggravation of left shoulder tendinitis, and sprain of the cervical spine with aggravation of
cervical disc displacement without myelopathy. Dr. Dinenberg used the ROM method and
correlated appellant’s left shoulder loss of ROM with the A.M.A., Guides7 and found that she
had 3 percent permanent impairment due to 120 degrees of flexion, 4 percent permanent
6

Id.

7

Id.

4

impairment due to 20 degrees of internal rotation, and 3 percent permanent impairment due to
90 degrees of abduction for a total permanent impairment rating of 10 percent of the left upper
extremity.
OWCP’s medical adviser reviewed the medical evidence of record on July 24, 2015 and
found that Dr. Dinenberg’s report established appellant’s permanent impairment for schedule
award purposes at 10 percent of the left upper extremity due to loss of ROM.
By decision dated July 28, 2015, OWCP granted appellant a schedule award for an
additional two percent permanent impairment of her left upper extremity. On August 5, 2015
appellant disagreed with this decision and requested an oral hearing.
Appellant testified at the oral hearing on March 15, 2016 before an OWCP hearing
representative. Appellant’s representative contended that Dr. Bishai’s impairment rating was the
most appropriate.
On April 7, 2016 appellant underwent a left shoulder MRI scan which demonstrated
rotator cuff tendinosis with a partial thickness tear of the supraspinatus tendon and a partial
thickness tear of the infraspinatus tendon. This MRI scan also demonstrated mild chronic AC
joint osteoarthrosis and mild bursitis.
Appellant submitted a report from Dr. Bishai completed on July 4, 2015. In his
examination of her left shoulder, Dr. Bishai found loss of ROM including forward elevation of
75 degrees, backward elevation of 15 degrees, abduction of 75 degrees, adduction of 15 degrees,
external rotation of 40 degrees, and internal rotation of 20 degrees. He found electrodiagnostic
evidence consistent with cervical radiculopathy affecting the upper extremities. Dr. Bishai
diagnosed chronic cervical strain, cervical disc syndrome, internal derangement of the left
shoulder, bilateral radiculopathy of the upper extremities, left carpal tunnel syndrome, and left
shoulder impingement syndrome. He reviewed Dr. Dinenberg’s report and disagreed with his
findings of appellant’s ROM. Dr. Bishai noted, “I have seen [appellant] numerous times and I
conducted this examination many times and the [ROM] figures have remained very close every
time I do the examination, so my impairment rating is based on multiple visits and many [ROM]
examinations at different times.” He opined that Dr. Dinenberg’s examination was very brief
and that he did not “do much” of a complete examination in every movement.
By decision dated May 26, 2016, OWCP’s hearing representative found that appellant
had not established more than 10 percent permanent impairment of her left upper extremity
entitling her to a schedule award. She found that Dr. Dinenberg’s impairment rating based on his
ROM figures was appropriate.
Appellant’s representative again requested reconsideration of the May 26, 2016 decision
and alleged an unresolved conflict of medical opinion evidence between appellant’s physician
and OWCP’s medical adviser.
In a decision dated June 16, 2016, OWCP declined to reopen appellant’s claim for
consideration of the merits as no additional factual or medical evidence was submitted in support
of her request for reconsideration.

5

LEGAL PRECEDENT -- ISSUE 1
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.8 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.9 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.10
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).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
ANALYSIS -- ISSUE 1
The issues on appeal are whether appellant has met her burden of proof to establish more
than 10 percent permanent impairment of her left upper extremity for which she has previously
received a schedule award and whether OWCP properly denied her request for reconsideration
on the merits pursuant to 5 U.S.C. § 8128(a).
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
8

See 20 C.F.R. §§ 1.1-1.4.

9

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
10

5 U.S.C.

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

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
12

Isidoro Rivera, 12 ECAB 348 (1961).

6

consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.13
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.14 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.15
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the May 26 and June 16,
2016 decisions.16 Following OWCP’s development of a consistent method for calculating
permanent impairment for upper extremities to be applied uniformly, and such other
development as may be deemed necessary, OWCP shall issue a de novo decision on appellant’s
claim for an upper extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

13

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

14

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

15

Supra note 12.

16

Due to the outcome of issue 1, the issue of whether OWCP properly denied appellant’s request for
reconsideration of the merits of her claim is moot.

7

ORDER
IT IS HEREBY ORDERED THAT the May 26 and June 16, 2016 decisions of the
Office of Workers’ Compensation Programs are set aside, and the case is remanded for further
action consistent with this decision.
Issued: April 4, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8