United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, GRAND JUNCTION
CARRIER ANNEX, Grand Junction, CO,
Employer
__________________________________________

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

Docket No. 21-0267
Issued: November 19, 2021

Case Submitted on the Record

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

JURISDICTION
On December 18, 2020 appellant filed a timely appeal from a July 22, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s wage-loss
compensation, effective June 21, 2020, based on her actual earnings as a medical receptionist.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 22, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On January 6, 2017 appellant, then a 56-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on December 20, 2016, she sustained a herniated lumbar disc when she
shifted heavy mail trays forward in the back of her postal vehicle while in the performance of duty.
OWCP accepted the claim for aggravation of degenerative joint disease at L3 -4 and herniation of
the lateral disc at L2-3. It paid appellant wage-loss compensation on the supplemental rolls as of
December 23, 2016 and on the periodic rolls as of June 25, 2017.
In a series of form reports beginning December 27, 2016, Dr. Robert J. McLaughlin, an
occupational medicine specialist and appellant’s treating physician, recommended that appellant
be excused from work beginning December 27, 2016.
In a work capacity evaluation for musculoskeletal conditions (Form OWCP-5c) dated
November 8, 2017, Dr. McLaughlin recommended that appellant return to sedentary work at 4
hours per day with restrictions of walking and standing as needed for no more than 10 minutes per
hour; pushing, pulling, and lifting no more than 4 hours at a maximu m of 10 pounds and 2 pounds
routinely; and no squatting, kneeling, or climbing.
On December 14, 2017 appellant was offered a modified duty rural carrier position at four
hours per day as a rural carrier associate based upon Dr. McLaughlin’s work restrictions. On
December 19, 2017 she accepted the modified position of a rural carrier associate. On March 22,
2018 OWCP referred appellant to Dr. Thomas Moore, a Board-certified orthopedic surgeon, for a
second opinion evaluation.
On April 2, 2018 appellant was offered and accepted another modified assignment at four
hours per day as a rural carrier assistant with the employing establishment.
In a report dated April 20, 2018, Dr. Moore indicated that appellant was unable to return
to the position that she held prior to her accepted injury. He noted that she had permanent
restrictions, including work limited to four hours a day. In an accompanying Form OWCP-5c,
Dr. Moore indicated that she could return to part-time work at 4 hours per day with sedentary work
restrictions of pushing no more than 2 hours per day at 20 pounds of weight; pulling and lifting no
more than 2 hours per day at 10 pounds of weight; sitting no more than half an hour per day;
walking and standing no more than 45 minutes per day; and no bending/stooping, squatting,
kneeling, or climbing. He further recommended that she be able to take a 15-minute break every
2 hours. Dr. Moore determined that appellant’s restrictions were permanent and that maximum
medical improvement (MMI) had been reached.
On June 15, 2018 OWCP referred appellant for vocational rehabilitation to find a suitable
position within the restrictions provided by Dr. Moore on April 20, 2018. In a vocational
rehabilitation report dated June 20, 2018, the vocational rehabilitation counselor noted that the
case had been closed at that time, as appellant was working a light-duty temporary position.
In a letter dated June 26, 2018, the employing establishment noted that, while it had been
able to accommodate appellant’s work restrictions as provided by Dr. Moore, in a temporary
capacity, a job offer on a permanent basis could not be provided.

2

In a vocational rehabilitation report dated July 18, 2018, the vocational rehabilitation
counselor noted that appellant asserted that the work she had been provided by the employing
establishment exceeded her work restrictions and had caused increased pain in her back.
On July 20, 2018 appellant again accepted a modified assignment at four hours per day as
a rural carrier assistant with the employing establishment.
In a form report dated August 6, 2018, Dr. McLaughlin recommended that appellant return
to work at eight hours per day with restrictions of lifting a maximum of 10 pounds and 5 pounds
repetitively, pushing/pulling no more than 20 pounds, being able to sit, stand, and change positions
as needed, and no crawling, kneeling, squatting, or climbing. He advised that her restrictions were
permanent and that MMI had been reached.
In a rehabilitation memorandum dated August 10, 2018, the rehabilitation counselor
requested a referral to vocational rehabilitation to obtain a permanent modified work with the
employing establishment based upon Dr. McLaughlin’s updated August 6, 2018 work restrictions
allowing her to work eight hours per day.
In a letter to the employing establishment dated September 5, 2018, OWCP advised that it
had determined the weight of the medical evidence rested with Dr. McLaughlin’s work restrictions
as outlined in the August 6, 2018 report. It requested that the employing establishment offer her a
job within these restrictions if possible.
In a letter dated September 7, 2018, OWCP informed appellant that vocational
rehabilitation services on her behalf would resume.
On September 13, 2018 appellant was offered and accepted a modified assignment at four
hours per day as a rural carrier assistant with the employing establishment.
In a letter dated September 17, 2018, the employing establishment informed OWCP that
while it had presented a job offer to appellant within the August 6, 2018 restrictions from
Dr. McLaughlin, the position was not permanent.
In a vocational rehabilitation report dated October 6, 2018, the rehabilitation counselor
again recommended file closure, as the employing establishment was unable to provide more than
four hours of temporary work despite her being released to work eight hours per day. The
vocational rehabilitation counselor continued to request file closure through February 13, 2019.
On February 8, 2019 appellant informed OWCP that she had been released from work as
of January 5, 2019.
On April 5, 2019 a vocational rehabilitation counselor conducted a labor market survey for
employment as a customer service representative and as a receptionist within appellant’s
commuting area. In a rehabilitation plan dated April 9, 2019, the rehabilitation counselor opined
that these occupations were medically suitable, and existed in significant numbers in appellant’s
commuting area, such that appellant’s qualifications enabled her to successfully compete and
obtain these jobs.

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On June 24, 2019 appellant began full-time private sector employment as a medical
receptionist. The salary was $12.00 per hour.
In a vocational rehabilitation report dated September 17, 2019, the rehabilitation counselor
noted that appellant had worked for over 60 days in a new permanent full-time position in the
private sector. The vocational rehabilitation file was closed as of November 5, 2019.3
By decision dated July 22, 2020, OWCP found that appellant was able to perform the duties
of the position of medical receptionist and reduced her compensation effective June 21, 2020. It
found that the weight of the medical evidence with regard to appellant’s work restrictions rested
with Dr. Moore as expressed in his April 20, 2018 report. OWCP found that the position of
medical receptionist fairly and reasonably represented appellant’s wage-earning capacity based
upon the wages actually earned. It stated that appellant was entitled to compensation from June 21,
2020 based upon her actual earnings with the private sector employer beginning June 24, 2019.
OWCP calculated that her gross compensation rate should be adjusted to $318.00 every four
weeks. It indicated that: appellant’s salary as of December 20, 2016, the date of her injury, was
$562.25 per week; her current adjusted pay rate for her job on the date of injury way $599.73; and
she was currently capable of earning $480.00 per week, or $12.00 hourly, as a medical receptionist.
OWCP, therefore, determined that appellant had an 80 percent wage-earning capacity, which when
multiplied by 66 2/3 percent amounted to a weekly compensation rate with cost-of-living
adjustments, of $79.50 per week, and a new compensation rate every four weeks of $318.00.
Appellant’s loss of wage-earning capacity (LWEC) per week was calculated as $112.45. OWCP
found that her current adjusted net compensation rate “each four weeks” was $318.00.
LEGAL PRECEDENT
Section 8115(a) of FECA provides that, in determining compensation for partial disability,
the wage-earning capacity of an employee is determined by the employee’s actual earnings if the
actual earnings fairly and reasonably represent the employee’s wage-earning capacity. 4 Generally,
wages actually earned are the best measure of a wage-earning capacity, and in the absence of
showing that they do not fairly and reasonably represent the injured employee’s wage-earning
capacity, must be accepted as such a measure. 5
OWCP’s procedures state that, after a claimant has been working for 60 days, it will make
a determination as to whether actual earnings fairly and reasonably represent wage-earning
capacity.6 The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Albert C. Shadrick decision,7 has been codified at section 10.403 of OWCP
3

In a letter dated March 4, 2020, appellant informed OWCP that her employment with private sector employment
had ended on March 2, 2020 and that she had been terminated from the position.
4

5 U.S.C. § 8115(a); V.H., Docket No. 20-1012 (issued August 10, 2021); Loni J. Cleveland, 52 ECAB 171 (2000).

5

K.B., Docket No. 20-0358 (issued December 10, 2020); Lottie M. Williams, 56 ECAB 302 (2005).

6

See K.B., id.; L.J., Docket No. 14-0970 (issued August 21, 2014); Federal (FECA) Procedure Manual, Part 2-Claims, Determining Wage-Earning Capacity Based on Actual Earnings, Chapter 2.815.2(b) (June 2013).
7

5 ECAB 376 (1953); see V.H., supra note 4; 20 C.F.R. §§ 10.403(d)-(e).

4

regulations. OWCP first calculates an employee’s wage-earning capacity in terms of percentage
by dividing the employee’s earnings by the current pay rate for the date-of-injury position.8
If the injured employee is no longer working in the alternative position upon which a rating
is being considered, OWCP may consider a retroactive LWEC. 9 However, this is rare and should
only be made where the employee worked in the position for at least 60 days, the employment
fairly and reasonably represented his or her wage-earning capacity as outlined under FECA
Chapter 2.815.5, and the subsequent work stoppage or change in the alternative position(s) did not
occur because of any change in the employee’s injury-related condition affecting his or her ability
to work.10
ANALYSIS
The Board finds that OWCP failed to meet its burden of proof to reduce appellant’s wageloss compensation, effective June 21, 2020, based on her actual earnings as a medical receptionist.
In its July 22, 2020 decision, OWCP found that appellant’s wage-earning capacity was
represented by her actual earnings as a medical receptionist and the weight of medical evidence
with regard to her work restrictions rested with Dr. Moore as outlined in his report of
April 20, 2018 wherein he indicated that appellant was unable to return to date-of-injury position.
Dr. Moore also related that appellant had permanent work restrictions, including a restriction of
work limited to four hours a day. In an accompanying Form OWCP-5c, he indicated that she could
return to part-time work at four hours per day with sedentary work restrictions.
The Board finds that OWCP improperly determined that appellant’s actual earnings in the
full-time medical receptionist position fairly and reasonably represented her wage -earning
capacity, based upon appellant’s work restrictions provided by Dr. Moore in his report of
April 20, 2018.11 The record indicates that the position of medical receptionist was a fu ll-time
position, but the April 20, 2018 report of Dr. Moore released appellant to work only four hours per
day, which he concluded was a permanent work restriction. In its July 22, 2020 decision, OWCP
found that the weight of medical evidence rested with Dr. Moore as expressed in his April 20,
2018 report. It did not forward a copy of the medical receptionist position description to
Dr. Moore, and it did not ask that he address whether appellant could perform the duties of the
full-time medical receptionist position. The Board, therefore, finds that Dr. Moore’s April 20,
2018 report did not establish that appellant was medically able to perform the duties of the fulltime medical receptionist position. The Board, therefore, finds that OWCP has not met its burden
8

See 20 C.F.R. § 10.403(d). The pay rate for compensation purposes is then multiplied by the wage-earning
capacity percentage. This amount is subtracted from the pay rate for compensation purposes to determine the LWEC.
Id. at § 10.403(e). The Board notes that under FECA, the term disability is defined as an inability, due to an
employment injury, to earn the wages the employee was receiving at the time of the injury, i.e., an impairment resulting
in an LWEC. See generally, Y.O., Docket No. 16-1886 (issued February 24, 2017); Prince W. Wallace, 52 ECAB
357 (2001).
9

M.F., Docket No. 18-0323 (issued June 25, 2019); D.M., Docket No. 16-1527 (issued July 25, 2017); D.P., Docket
No. 14-0301 (issued July 16, 2014); Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.815.7.
10

Id.

11

Id.

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to reduce appellant’s wage-loss compensation, effective June 21, 2020, based on her actual
earnings as a medical receptionist.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to reduce appellant’s wageloss compensation, effective June 21, 2020, based on her actual earnings as a medical receptionist.
ORDER
IT IS HEREBY ORDERED THAT the July 22, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: November 19, 2021
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, RIO GRANDE
PERFORMANCE CLUSTER, San Antonio, TX,
Employer
__________________________________________

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

Docket No. 11-1873
Issued: March 7, 2012

Case Submitted on the Record

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

JURISDICTION
On July 26, 2011 appellant filed a timely appeal from the April 27, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of
compensation. 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 determined that appellant received a
$3,801.82 overpayment of compensation; and (2) whether OWCP properly determined that
appellant was at fault in creating the overpayment of compensation, thereby precluding waiver of
recovery of the overpayment.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on March 15, 2008 appellant, then a 46-year-old rural route carrier,
sustained several back, lower extremity and upper extremity conditions due to a motor vehicle
accident at work. Appellant returned to work in a light-duty position for the employing
establishment and OWCP paid her compensation for periods of partial disability. She also
received wage-loss compensation for days when she had medical appointments related to her
work injuries.
OWCP directed appellant to appear for a second opinion examination on February 5,
2010 with Dr. David West, an osteopath and Board-certified orthopedic surgeon, and she
appeared for the examination on that date. Appellant also appeared for an OWCP-directed
functional capacity evaluation on March 2, 2010.
In a Form CA-7 (Claim for Compensation) completed on March 16, 2010, appellant
claimed compensation for intermittent periods between January 15 and March 8, 2010.2
In an April 6, 2010 letter, OWCP advised appellant that it had received her CA-7 and
CA-7a forms alleging entitlement to compensation for intermittent periods of wage loss between
January 15 and March 8, 2010. It further stated:
“The following payments will be issued to you upon completion of our internal
processes:
“TIME PERIOD: [February 5 to March 2, 2010]. PAYMENT:
$2,271.61 for 100 percent compensation rate as required for [OWCP-]
directed appointments.
“TIME PERIOD: [January 15 to March 8, 2010], 10 days for a total of
44.1 hours of [l]eave [w]ithout [p]ay ([January 15, 29 and February 1, 8, 9,
12, 23 and 26, and March 1 and 8, 2010]). PAYMENT: $968.40.
“Please note our office was not able to process payment for the following
dates given the lack of supporting medical documentation in file for the
following dates: 48 h[ou]rs of [total temporary disability leave without
pay] for time period of [January 20 to 27, 2010] + [partial temporary
disability leave without pay] for [February 17, 24 and 27, 2010].”
On April 9, 2009 appellant received a $4,274.61 check which was identified as covering
wage loss for February 5 and March 2, 2010. On April 9, 2009 she also received a $968.40
check which was identified as covering wage loss for interment periods between January 15 and
March 8, 2010.

2

In accompanying CA-7a forms, appellant claimed entitlement to wage-loss for about 20 dates in amounts of
time varying from 1.75 to 8 hours. She specifically claimed that she was entitled to eight hours of compensation for
the February 5, 2010 visit to Dr. West and to eight hours for the March 2, 2010 functional capacity evaluation.

2

In a November 22, 2010 letter, OWCP advised appellant that it had made a preliminary
determination that she received a $3,801.82 overpayment of compensation because she was only
entitled to receive $472.79 for OWCP-directed medical evaluations held on February 5 and
March 2, 2010 (a total of 16 hours), but actually received wage-loss benefits of $4,274.61 for
these two days.3 It made a preliminary determination that appellant was at fault in the creation of
the overpayment because she was aware or should have reasonably been aware that she was not
entitled to receive $4,274.61 for only 16 hours of missed work.
In its November 22, 2010 preliminary determination letter, OWCP provided appellant an
opportunity to submit evidence and argument challenging the fact, amount and fault finding of
the claimed overpayment. It requested that she submit a completed financial information
questionnaire (Form OWCP-20) along with supporting documentation. OWCP requested that
appellant submit these documents within 30 days of the date of the preliminary determination
letter. The Form OWCP-20 indicated that she must request a telephone conference with the
district OWCP, a decision by the district OWCP based on the written record or a prerecoupment
hearing by the Branch of Hearings and Review within 30 days of the date of the preliminary
determination letter.
On January 3, 2011 OWCP received a completed Form OWCP-20 in which appellant
indicated that she believed that the claimed overpayment occurred through no fault of her own
and that she wished to request a waiver of the overpayment.4 Appellant checked a box
requesting a telephone conference with the district OWCP “on the issues of fault and possible
waiver of this overpayment.”
In an April 27, 2011 decision, OWCP determined that appellant received a $3,801.82
overpayment of compensation because she was paid $4,274.61 for eight hours of missed work on
February 5, 2010 and eight hours of missed work on March 2, 2010 when she was only entitled
to receive a total of $472.79 for these two days. It further found that she was at fault in the
creation of the overpayment and therefore it was not subject to waiver. OWCP stated:
“You believed that you were entitled to a large check from our office and you
kept the check you received. However, you were not entitled to this check for the
dates issued. This check was issued in error and you are only entitled to a small
portion of this check. Therefore a formal overpayment decision is being issued
and you are required to make payment to recover the overpayment.”
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
3

OWCP included a calculation indicating that the total of 16 hours of lost wages on February 5 and March 2,
2010 entitled him to $472.79 in compensation.
4

Appellant stated that she had turned in several CA-7 forms and CA-7a forms which totaled “several thousand
dollars” and which had not been paid. She reported monthly income of $1,920.00, monthly expenses of $2,553.00
and assets of $844.00.

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performance of her duty.5 Section 8129(a) of FECA provides, 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.”6
Section 8116(a) of FECA provides that while an employee is receiving compensation or
if she has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.7
ANALYSIS -- ISSUE 1
The record reflects that on February 5, 2010 appellant took off work to appear for an
OWCP-directed second opinion evaluation and that on March 2, 2010 she took off work to
appear for an OWCP-directed functional capacity evaluation. These work stoppages were
related to her accepted work injuries and therefore she was entitled to receive compensation for
the total of 16 hours of work she missed on these two days. Appellant received a $4,274.61
check for her missed work on February 5 and March 2, 2010, but she was only entitled to receive
$472.79 for these 16 hours of missed work. The difference between the two compensation
amounts is $3,801.82. Therefore, the Board finds that appellant received a $3,801.82
overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.8 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “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 this
subchapter or would be against equity and good conscience.”9 No waiver of payment is possible
if the claimant is not “without fault” in helping to create the overpayment.10

5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8116(a).

8

Id. at § 8129(a).

9

Id. at § 8129(b).

10

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

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In determining whether an individual is not “without fault” or alternatively, “with fault,”
section 10.433(a) of Title 20 of the Code of Federal Regulations provide in relevant part:
“An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to
be incorrect….”11
Section 10.433(c) of OWCP’s regulations provide:
“Whether or not OWCP determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”12
ANALYSIS -- ISSUE 2
OWCP found appellant at fault for the creation of the claimed overpayment under the
above-detailed third prong, i.e., she accepted a payment which she knew or should have known
to be incorrect. On April 9, 2009 appellant accepted a $4,274.61 check which was identified as
covering wage loss for February 5 and March 2, 2010.13 She asserted that she did not realize that
she could not accept the $4,274.61 check because she had turned in several CA-7 forms and
CA-7a forms covering the period January 15 to March 8, 2010 which had not been paid.
However, appellant was familiar with the process of receiving compensation for intermittent
periods of wage loss14 and the monies she received on April 9, 2009 were so great that she knew
or should have known that she was being overcompensated for her recent claims for intermittent
periods of wage loss. She was advised that the $4,274.61 check was for February 5 and
March 2, 2010 (the dates of two OWCP-directed evaluations) and, given the large amount of the
check, she knew or should have known that she was only entitled to receive a small portion of
the amount of the check to compensate her for the total of 16 hours she missed work for these

11

20 C.F.R. § 10.433(a).

12

Id. at § 10.433(c).

13

On April 9, 2009 appellant also accepted a $968.40 check which was identified as covering wage loss for the
period January 15 to March 8, 2010.
14

The Board notes that appellant often communicated with OWCP to follow up and ask questions about her
claims for intermittent periods of wage loss.

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two evaluations. On appeal, appellant alleged that OWCP prematurely made a determination on
her case because she had requested a telephone hearing with the district OWCP. She had been
informed that any such request must be made within 30 days of the November 22, 2010
preliminary overpayment determination. However, appellant’s request for a telephone hearing
was untimely as it was not made until January 3, 2011, i.e., more than 30 days after
November 22, 2010. For these reasons, the Board finds that she was at fault in creating the
overpayment of compensation, thereby precluding waiver of recovery of the overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received a $3,801.82
overpayment of compensation. The Board further finds that OWCP properly determined that she
was at fault in creating the overpayment of compensation and that, therefore, the overpayment
was not subject to waiver.
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
U.S. POSTAL SERVICE, RAVENWOOD
STATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 15-1830
Issued: January 6, 2016

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 September 8, 2015 appellant filed a timely appeal from a July 8, 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 established permanent impairment of the lower
extremities.
FACTUAL HISTORY
On January 4, 2005 appellant, then a 30-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained a pinched nerve or carpal tunnel syndrome
causally related to factors of her federal employment. OWCP accepted this claim for bilateral
1

5 U.S.C. § 8101 et seq.

carpal tunnel syndrome, assigned file number xxxxxx196. Appellant underwent a right carpal
tunnel release on July 19, 2006.2
OWCP also accepted that appellant sustained lumbar sprain and a sprain of the left
shoulder and upper arm at the acromioclavicular (AC) joint due to a March 12, 2009 traumatic
injury in file number xxxxxx772. On July 1, 2010 OWCP doubled case file number xxxxxx772
into the current file number xxxxxx196.
By decision dated May 29, 2009, OWCP granted appellant a schedule award for six
percent permanent impairment of the right upper extremity and four percent permanent
impairment of the left upper extremity. The period of the award ran for 31.2 weeks from April 5
through November 9, 2007.
On October 26, 2012 appellant filed a claim for an increased schedule award.
In a report dated October 25, 2013, Dr. Mark Sokolowski, a Board-certified orthopedic
surgeon, found that appellant had reached maximum medical improvement on October 4, 2013.
He diagnosed bilateral carpal tunnel syndrome, a left AC joint sprain, and lumbar sprain.
Dr. Sokolowski discussed appellant’s prior schedule award for carpal tunnel syndrome. Citing
Table 15-5 on page 403 of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2008) (A.M.A., Guides), he found that appellant had five percent
left upper extremity impairment due to her AC joint injury. Dr. Sokolowski further determined
that a magnetic resonance imaging (MRI) scan study of the lumbar spine showed degenerative
changes at L5-S1 with retrolisthesis and foraminal stenosis. He opined that, under Table 17-4 on
page 572 of the A.M.A., Guides, appellant had 14 percent whole person impairment due to
degenerative spondylolisthesis with radiculopathy.
On March 24, 2014 an OWCP medical adviser reviewed Dr. Sokolowski’s October 25,
2013 report and opined that appellant had one percent left arm impairment due to impingement
syndrome according to Table 15-5 on page 402 of the A.M.A., Guides. He considered
Dr. Sokolowski’s finding of 14 percent whole person impairment due to spondylolisthesis but
noted the claim was accepted only for lumbar sprain. The medical adviser further indicated that
the March 21, 2013 MRI scan study revealed a disc bulge without spinal slippage. He found that
appellant had no ratable permanent impairment of the legs.
By decision dated April 17, 2014, OWCP granted appellant a schedule award for an
additional one percent permanent impairment of the left upper extremity. It determined that she
did not have a ratable impairment of the lower extremities.
In a progress report dated April 28, 2014, Dr. Sokolowski disagreed with OWCP’s
medical adviser’s finding that the diagnostic studies did not show instability of the lumbar spine.
On examination he found a positive straight leg raise and strength that was “symmetrically intact

2

In a decision dated August 28, 2008, OWCP found that appellant had not established an employment-related
recurrence of disability beginning May 24, 2008. On May 26, 2009 it accepted that she sustained a recurrence of
disability beginning March 14, 2009.

2

throughout [appellant’s] bilateral lower extremities in all muscle groups with sensation intact to
light touch in all dermatomal distributions.”
A May 20, 2014 lumbar MRI scan study showed a small disc protrusion at L4-5 possibly
contacting a nerve root, mild bilateral foraminal stenosis, and advanced endplate degeneration at
L5-S1.
On June 16, 2014 Dr. Sokolowski reviewed the May 20, 2014 MRI scan study. He
advised, “The examiner who reviewed my calculation on permanent impairment did not see
instability mentioned on the study report. I reviewed the actual films. There is clear listhesis
present.” Dr. Sokolowski found normal sensation and strength of the lower extremities.
On July 30, 2014 appellant requested reconsideration of OWCP’s April 17, 2014 denial
of her schedule award for the back and lower extremities.
On October 20, 2014 an OWCP medical adviser reviewed the additional medical
evidence submitted. He opined that the x-rays did not show spondylolisthesis and that the MRI
scan study did not show listhesis. The medical adviser noted that OWCP accepted appellant’s
claim for lumbar sprain rather than disc degeneration at L5-S1. He concluded that she had no
objective evidence of any lower extremity impairment.
By decision dated October 28, 2014, OWCP denied modification of its April 17, 2014
decision.
In a report dated October 29, 2014, Dr. Sokolowski noted that OWCP denied appellant’s
claim for a schedule award for the lumbar spine because the accepted condition was a lumbar
sprain. He related, “She clearly has over time developed a consequential injury of lumbar
spondylosis, and lumbar radiculopathy.” Dr. Sokolowski indicated that diagnostic studies
supported these diagnoses.
On November 18, 2014 appellant requested reconsideration.
In a report dated January 26, 2015, an OWCP medical adviser opined that appellant had
not submitted evidence showing a lower extremity permanent impairment. He found that the
sixth edition of the A.M.A., Guides at Table 17-4 on page 570 and 571, relevant to determining
impairments of the spine and pelvis, provided a rating for herniated discs, spondylolisthesis,
fractures, or dislocations or the lumbar spine. The medical adviser opined that May 20, 2014
MRI scan study did not show a disc herniation but instead a protrusion. He further found that
appellant did not have spondylolisthesis. The medical adviser determined that she had not met
any of the criteria set forth in the A.M.A., Guides for a schedule award for the lower extremities.
By decision dated February 5, 2015, OWCP denied modification of its October 28, 2014
decision. It found that the January 26, 2015 report from OWCP’s medical adviser constituted the
weight of the evidence and established that appellant had no objective evidence of a permanent
impairment of the lower extremities.
In a report dated February 9, 2015, Dr. Sokolowski disagreed with OWCP’s medical
adviser’s finding that a disc herniation differed from a disc protrusion. He asserted that appellant
3

had a disc herniation and thus an impairment under the sixth edition of the A.M.A., Guides. On
examination, Dr. Sokolowski found a positive straight leg raise and back pain with radiation to
the buttocks with extension. He related, “Strength is intact throughout [appellant’s] bilateral
lower extremities in all muscle groups with sensation intact to light touch in all dermatomal
distributions.”
On February 11, 2015 appellant requested reconsideration.
In a report dated June 26, 2015, an OWCP medical adviser applied The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition
(July/August 2009) (The Guides Newsletter) to Dr. Sokolowski’s clinical findings. He noted
that Dr. Sokolowski found intact sensation with no loss of strength of the bilateral lower
extremities in his February 9, 2015 report. The medical adviser used Proposed Table 2 of The
Guides Newsletter to find a class 0 diagnosis for sensory and motor loss, which yielded zero
percent impairment rating. He noted that Dr. Sokolowski had based his impairment on the
lumbar spine rather than the lower extremities and did not use The Guides Newsletter as
appropriate.
By decision dated July 8, 2015, OWCP denied modification of the February 5, 2015
decision. It determined that the June 26, 2015 report from its medical adviser represented the
weight of the evidence and established that appellant did not have a work-related lower extremity
impairment.
On appeal appellant disagrees with the finding of OWCP’s medical adviser. She argues
that Dr. Sokolowski diagnosed a disc herniation and noted that appellant experienced numbness
and tingling in her feet and toes bilaterally with radiating pain down her right side into her foot.
LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

4

Neither FECA nor its regulations provide for a schedule award for impairment to the
back or to the body as a whole.7 Furthermore, the back is specifically excluded from the
definition of organ under FECA.8 The sixth edition of the A.M.A., Guides does not provide a
separate mechanism for rating spinal nerve injuries as impairments of the extremities.
Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, The
Guides Newsletter offers an approach to rating spinal nerve impairments consistent with sixth
edition methodology. For peripheral nerve impairments to the upper or lower extremities
resulting from spinal injuries, OWCP procedures indicate that The Guides Newsletter is to be
applied.9
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.10
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome under file number
xxxxxx196 and a sprain of the left AC joint and lumbar sprain under file number xxxxxx772. It
doubled file number xxxxxx772 into master file number xxxxxx196.
On May 29, 2009 OWCP granted appellant a schedule award for six percent permanent
impairment of the right arm and four percent permanent impairment of the left arm. On
April 17, 2014 it granted a schedule award for an additional one percent permanent impairment
of the left arm, but found that she had not established impairment in the lower extremity.
Appellant requested reconsideration of OWCP’s finding and in decisions dated 2014 and 2015,
OWCP denied modification of its prior determination that the medical evidence was insufficient
to establish lower extremity impairment.
The Board finds that appellant has not established a ratable permanent impairment of
either leg under the A.M.A., Guides.
In a report dated October 25, 2013, Dr. Sokolowski diagnosed degenerative changes of
the lumbar spine at L5-S1, foraminal stenosis, and retrolisthesis. Citing Table 17-4 on page 572
of the A.M.A., Guides, he opined that appellant had 14 percent whole person impairment due to
degenerative spondylolisthesis with radiculopathy. On March 24, 2014 an OWCP medical
adviser opined that diagnostic studies did not show a disc herniation or spinal slippage and thus
there was no objective basis for using Table 17-4. The use of Table 17-4, however, is applicable
in determining impairments of the spine and pelvis and thus it not appropriate for use under

7

See N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

8

See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The
Guides Newsletter is included as Exhibit 4.
10

See Veronica Williams, 56 ECAB 367 (2005).

5

FECA, which specifically excludes the back as an organ.11 Further, FECA does not provide for
impairment of the whole person.12
On April 28, 2014 Dr. Sokolowski disagreed with the finding of OWCP’s medical
adviser that appellant did not have lumbar spine instability. He found intact strength and
sensation of the lower extremities. On June 16, 2014 Dr. Sokolowski again noted that he did not
concur with OWCP’s medical adviser’s finding that there was no instability as a May 20, 2014
MRI scan study showed listhesis. He did not, however, provide an impairment rating of the
lower extremities and thus his reports are insufficient to support a schedule award for the
claimed conditions. Additionally, OWCP accepted that appellant sustained a lumbar sprain and
not lumbar instability or listhesis.
In a report dated October 29, 2014, Dr. Sokolowski disagreed with OWCP’s denial of
appellant’s schedule award claim for the spine because it had only accepted lumbar sprain. He
diagnosed lumbar spondylosis and lumbar radiculopathy as consequential conditions due to her
work injury. Where a claimant claims that a condition not accepted or approved by OWCP was
due to her employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury through the submission of rationalized medical
evidence.13 Dr. Sokolowski did not provide any rationale for his opinion that appellant’s work
injury caused lumbar spondylosis and radiculopathy. Medical conclusions unsupported by
rationale are of little probative value.14 On January 26, 2015 an OWCP medical adviser
reviewed Dr. Sokolowski’s report and found that appellant did not meet the criteria set forth at
Table 17-4 for rating an impairment of the spine or pelvis as she had a disc protrusion rather than
a herniation. As previously noted, however, FECA does not provide a schedule award for the
back.15
On February 9, 2015 Dr. Sokolowski opined that appellant had a herniated disc and thus
an impairment under the A.M.A., Guides. On examination he found intact strength and
sensation of the lower extremities. Dr. Sokolowski did not address whether appellant had lower
extremity impairment but instead found an impairment due to a herniated disc. As discussed, no
schedule award is payable for a member, function, or organ of the body not specified in FECA or
in the implementing regulations.16 Because neither FECA nor OWCP regulations provide for the
payment of a schedule award of the permanent loss of use of the back, a claimant is not entitled
to such an award.17

11

Supra note 8.

12

Supra note 7.

13

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

14

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

15

See supra note 8.

16

See J.D., 58 ECAB 254 (2007).

17

See R.S., 58 ECAB 362 (2007).

6

On June 26, 2015 an OWCP medical adviser discussed Dr. Sokolowski’s finding of
normal strength and sensation of the bilateral lower extremities. Citing Proposed Table 2 of The
Guides Newsletter, he found a class 0 diagnosis for sensory and motor loss, which yielded zero
percent impairment rating. The medical adviser disagreed with Dr. Sokolowski’s impairment
determination as he had rated appellant’s lumbar spine and did not use The Guides Newsletter.
Under FECA, although there is no schedule award for the back, an impairment from a spinal
nerve affecting the lower extremities can be determined using The Guides Newsletter. The
Board finds that he properly applied the relevant standards in The Guides Newsletter to
Dr. Sokolowski’s clinical findings. OWCP’s medical adviser’s opinion thus constitutes the
weight of the evidence and establishes that appellant does not have a ratable employment-related
impairment of either lower extremity.
On appeal appellant notes that Dr. Sokolowski diagnosed a disc herniation. She relates
that she experiences numbness and tingling throughout her lower extremities and pain in her
right lower extremity. The issue, however, is whether the medical evidence establishes that
appellant has a ratable impairment of the lower extremities under the A.M.A., Guides. Appellant
has the burden to submit a medical opinion supporting permanent impairment.18 There is no
probative medical evidence of record conforming to the A.M.A., Guides establishing a ratable
impairment of the lower extremities causally related to her accepted lumbar sprain.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she is
entitled to a schedule award for a permanent impairment of the lower extremities.

18

See K.S., Docket No. 15-0741 (issued August 10, 2015); D.H., 58 ECAB 358 (2007).

7

ORDER
IT IS HEREBY ORDERED THAT the July 8, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 6, 2016
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
__________________________________________
T.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS AIR FORCE PENTAGON,
Washington, DC, Employer
__________________________________________

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

Docket No. 12-904
Issued: November 15, 2012

Case Submitted on the Record

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

JURISDICTION
On March 14, 2012 appellant filed a timely appeal from a September 23, 2011 decision
of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration of the merits of her claim. As more than 180 days elapsed from the date of the
last merit decision of April 26, 2011 to the filing date of the current appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
only has jurisdiction over the nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 13, 2010 appellant, then a 49-year-old mail clerk, filed an occupational disease
claim (Form CA-2) alleging that she developed depression and anxiety due to factors of her
federal employment. She submitted a June 10, 2010 report by Dr. Faheem Moghal, a Boardcertified psychiatrist, who treated her for depression and anxiety in the context of work-related
stress since May 2009. Dr. Moghal stated that appellant’s work environment was made hostile
by conflict with her supervisor and coworkers, lack of supervision and inconsistent
implementation of disciplinary standards, unrealistic expectations, demands to perform functions
outside of her job description and vulgar and intimidating language used by her coworker.
By decision dated December 23, 2010, OWCP denied the claim, finding that appellant
did not submit sufficient evidence to establish any compensable employment factors. It found
that the evidence she submitted did not establish that she was subjected to harassment or a hostile
work environment.
On January 21, 2011 appellant requested a review of the written record by an OWCP
hearing representative.
By decision dated April 26, 2011, OWCP’s hearing representative affirmed the
December 23, 2010 decision finding that appellant did not submit sufficient evidence to establish
compensable factors of employment. He noted that the administrative factors of reassignment
and the trainer to whom appellant was assigned are not considered to have arisen in and out of
the performance of duty.
On July 2, 2011 appellant requested reconsideration and submitted a May 9, 2011 report
by Dr. Moghal who reiterated his opinion of June 10, 2010.
By decision dated September 23, 2011, OWCP denied appellant’s request for
reconsideration of the merits finding that she did not submit pertinent new and relevant evidence
and did not show that OWCP erroneously applied or interpreted a point of law not previously
considered by OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.2 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).3

2

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

See Annette Louise, 54 ECAB 783, 789-90 (2003).

2

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.6
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record7 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.8
ANALYSIS
The Board finds that appellant did not submit pertinent new and relevant evidence and
did not show that OWCP erroneously applied or interpreted a point of law not previously
considered by OWCP and did not advance a relevant legal argument not previously considered
by OWCP.
In support of her July 2, 2011 reconsideration request, appellant submitted a May 9, 2011
report by Dr. Moghal. The Board finds that the submission of this report did not require
reopening her case for merit review because she had submitted substantively the same report by
Dr. Moghal dated June 10, 2010, which was previously reviewed by OWCP in a decision dated
December 23, 2010. As the report repeats evidence already in the case record, it is duplicative
and does not constitute relevant and pertinent new evidence. Therefore, appellant has not
established a basis for reopening her case.9
Because appellant only submitted repetitive and duplicative evidence with her request for
reconsideration, the Board finds that OWCP properly denied merit review.
On appeal, appellant argues the merits of her case. The Board noted above that it only
has jurisdiction over OWCP’s September 23, 2011 nonmerit decision which denied her request
for reconsideration and therefore is precluded from conducting a merit review.

4

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

See A.L., supra note 4. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

8

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

9

See D.K., 59 ECAB 141 (2007).

3

CONCLUSION
The Board finds that appellant did not submit pertinent new and relevant evidence, did
not show that OWCP erroneously applied or interpreted a point of law not previously considered
by OWCP and also did not advance a relevant legal argument not previously considered by
OWCP. Therefore, OWCP properly refused to reopen her claim for further consideration of the
merits of her claim under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 2012
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, REGIONAL AIRPORT,
Tallahassee, FL, Employer
__________________________________________

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

Docket No. 10-1642
Issued: June 15, 2011

Case Submitted on the Record

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

JURISDICTION
On June 8, 2010 appellant, through his representative, filed a timely appeal from the
May 5, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
affirmed the reduction of his compensation based on a determination of his capacity to earn
wages in a constructed position. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 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 OWCP properly reduced appellant’s wage-loss compensation on the
grounds that he has the capacity to earn entry-level wages in the constructed position of budget
analyst.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 22, 2004 appellant, then a 36-year-old transportation security screener, sustained
an injury in the performance of duty when he lifted army field packs. OWCP accepted his claim
for lumbar strain and right L4-5 herniated disc. Appellant received compensation for temporary
total disability on the periodic rolls.
OWCP informed Dr. Patricia A. Hogan, the attending family physician, that appellant
had completed a vocational rehabilitation training program to provide him the skills necessary to
obtain an entry-level job as a budget analyst. It provided Dr. Hogan the job description and
asked her to indicate whether appellant was capable of performing the specified duties and
physical requirements. On June 11, 2009 Dr. Hogan indicated that appellant was capable of
performing the job.
OWCP’s rehabilitation specialist found that appellant was qualified for the position of
budget analyst and should be able to earn an entry-level wage, and eventually a median-level
wage. State labor market statistics showed 196 budget analyst positions in the Tallahassee area
as of 2008, with 206 positions projected by 2016. Average annual openings were projected to
total six, one due to growth and five due to separations. The entry-level wage estimate for 2009
was $17.61 an hour. OWCP’s rehabilitation specialist found that the position was reasonably
available to appellant.
In a decision dated November 5, 2009, OWCP reduced appellant’s wage-loss
compensation to zero effective November 22, 2009 on the grounds that he was no longer totally
disabled for work and had the capacity to earn entry-level wages as a budget analyst at a pay rate
higher than the current pay rate of his date-of-injury job.
Appellant advised that he tried to find a job as a budget analyst, but his experience was
that he did not meet the educational requirement -- most required a master’s degree in finance -or the experience, which was three to four years.
In a decision dated May 5, 2010, OWCP’s hearing representative affirmed the reduction
of appellant’s wage-loss compensation. She found that appellant held a bachelor’s degree in
finance and economics and met the specific vocational preparation requirement of the
constructed position. The fact that some employers preferred or required a master’s degree did
not establish that appellant was not vocationally prepared for an entry-level position. The
hearing representative explained that the lack of current job openings did not mean the position
was not performed in sufficient numbers to be considered reasonably available. She found that
the opinion of OWCP’s rehabilitation specialist outweighed appellant’s opinion on the issues of
vocational suitability and availability.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.2 “Disability” means the incapacity,
2

5 U.S.C. § 8102(a).

2

because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.3
Section 8115(a) of FECA provides that in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his actual earnings, if his
actual earnings fairly and reasonably represent his wage-earning capacity. If the actual earnings
of the employee do not fairly and reasonably represent his wage-earning capacity or if the
employee has no actual earnings, his wage-earning capacity as appears reasonable under the
circumstances is determined with due regard to the nature of his injury, the degree of physical
impairment, his usual employment, his age, his qualifications for other employment, the
availability of suitable employment, and other factors or circumstances which may affect his
wage-earning capacity in his disabled condition.4
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.5 When it makes a medical determination of partial
disability and of the specific work restrictions, it may refer the employee’s case to an Office
wage-earning capacity specialist for selection of a position, listed in the Department of Labor’s
Dictionary of Occupational Titles or otherwise available in the open labor market, that fits the
employee’s capabilities in light of his physical limitations, education, age and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service. Finally, application of the principles set forth in Albert C. Shadrick will result in the
percentage of the employee’s loss of wage-earning capacity.6
ANALYSIS
OWCP reduced appellant’s wage-loss compensation on the grounds that he had the
capacity to earn entry-level wages in the constructed position of budget analyst. It therefore had
the burden to establish it gave, in the words of section 8115(a) of FECA, “due regard” to the
availability of suitable employment.
Because the rehabilitation specialist is an expert in the field of vocational rehabilitation,
OWCP may rely on his or her opinion as to whether the job is reasonably available.7 Lack of

3

20 C.F.R. § 10.5(f).

4

5 U.S.C. § 8115(a)

5

Harold S. McGough, 36 ECAB 332 (1984).

6

Hattie Drummond, 39 ECAB 904 (1988); see Albert C. Shadrick, 5 ECAB 376 (1953).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8.b(2) (October 2009).

3

current job openings does not equate to a finding that the position was not performed in
sufficient numbers to be considered reasonably available.8
State labor statistics showed 196 budget analyst positions in the Tallahassee area in 2008
and 206 positions projected by 2016. Average annual openings were projected to total only six,
one due to growth and five due to separations, but the statistics did not show how many of the
positions were entry level.
Appellant completed a vocational rehabilitation training program to provide him the
skills necessary to obtain an entry-level job as a budget analyst. OWCP reduced his wage-loss
compensation to zero on the grounds that he had the capacity to earn entry-level wages as a
budget analyst. The labor market statistics upon which the rehabilitation specialist relied to find
that the position was reasonably available to appellant in the open labor market did not show
how many of the positions were entry level, and therefore suitable to his vocational training.
This undermines the finding that the constructed position was reasonably available and therefore
suitable.9
Because OWCP did not give due regard to the availability of suitable employment, the
Board finds that OWCP did not meet its burden to justify the reduction of appellant’s wage-loss
compensation. The Board will therefore reverse the hearing representative’s May 5, 2010
decision affirming OWCP’s determination of wage-earning capacity and reduction of wage-loss
compensation.
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s wage-loss compensation.
The evidence does not establish the availability of the constructed position.

8

Id., Chapter 2.814.8.c. But see R.C., Docket No. 08-2342 (issued September 25, 2009) (where a rehabilitation
counselor provided conflicting information -- advising that two constructed positions were reasonably available but
noting, among other things, that entry-level jobs were practically nonexistent -- the Board found that OWCP did not
meet its burden of proof to reduce the claimant’s compensation, as the rehabilitation counselor’s equivocal
statements undermined the finding of reasonable availability).
9

Cf. D.B., Docket No. 08-547 (issued November 17, 2008) (reversing the reduction of wage-loss compensation
on the grounds that the labor market statistics did not show an entry-level wage).

4

ORDER
IT IS HEREBY ORDERED THAT the May 5, 2010 decision of the Office of Workers’
Compensation Programs is reversed. The case is remanded for reinstatement of wage-loss
compensation retroactive to the effective date of the reduction.
Issued: June 15, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
TENNESSEE VALLEY AUTHORITY,
DIVISION OF AGRI-CHEMICAL
DEVELOPMENT, Chattanooga, TN, Employer
__________________________________________

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

Docket No. 10-876
Issued: November 5, 2010

Case Submitted on the Record

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

JURISDICTION
On February 19, 2010 appellant filed a timely appeal from a September 2, 2009 decision
of the Office of Workers’ Compensation Programs. Under 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 monaural hearing loss of his
right ear, for which he received a schedule award.
FACTUAL HISTORY
Appellant, a 58-year-old instrument mechanic, filed an occupational disease claim (Form
CA-2) on April 28, 2009, alleging that he sustained a hearing loss caused by factors of his
federal employment. He worked in a MINCAMS control room and around glove box motors,
filter banks and pneumatic pumps from March 2003 to the present. Appellant did not stop work.

He submitted audiograms dated 1981 to 2008 which showed varying degrees of bilateral hearing
loss.
The Office referred appellant to Dr. Joseph Motto, a Board-certified otolaryngologist, for
a second opinion evaluation of his hearing loss. In a July 14, 2009 report, Dr. Motto discussed
the results of a July 14, 2009 audiogram, which revealed bilateral mild to moderate sensorineural
hearing loss. The audiogram dated July 14, 2009, with an attached calibration certificate,
showed hearing levels of 10, 10, 30 and 55 decibels on the right and 10, 10, 25 and 50 decibels
on the left at 500, 1,000, 2,000 and 3,000 cycles per second (cps), respectively. Dr. Motto
opined that the results of the audiogram suggested a noise-induced hearing loss.
In a July 29, 2009 report, an Office medical adviser reviewed the results of the July 14,
2009 audiogram. He determined that appellant had two percent permanent, right-sided monaural
hearing loss.
On August 3, 2009 the Office accepted appellant’s claim for bilateral sensorineural
hearing loss. In a September 2, 2009 decision, it granted him a schedule award for two percent
monaural hearing loss for the right ear. The award ran from July 29 to August 5, 2009, for a
total of 1.04 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.5 Then, the fence of 25 decibels is deducted. The
remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing
loss.6 The binaural loss is determined by calculating the loss in each ear using the formula for
monaural loss; the lesser loss is multiplied by five, then added to the greater loss, and the total is
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404. Effective May 1, 2009, the Office began using the A.M.A., Guides (6th ed. 2009).

3

Id. See R.D., 59 ECAB 127 (2007); Robert E. Cullison, 55 ECAB 570 (2004).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 2.700.4.b (January 2010).

5

Id. See J.H., 60 ECAB ___ (Docket No. 08-2432, issued June 15, 2009).

6

Id. See J.B., 60 ECAB ___ (Docket No. 08-1735, issued January 27, 2009).

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divided by six to arrive at the amount of the binaural hearing loss.7 The Board has concurred in
the Office’s adoption of this standard for evaluating hearing loss.8
ANALYSIS
The Board finds that appellant has to no greater than two percent monaural hearing loss
in his right ear, for which he received a schedule award. Dr. Motto’s July 14, 2009 audiogram
tested the frequencies of 500, 1,000, 2,000 and 3,000 cps, for which the following thresholds
were reported in the left ear: 10, 10, 25 and 50 decibels. These decibels, totaled to 95 and
divided by 4, reflected an average hearing loss at those cycles of 23.75 decibels. The average of
23.75 decibels, when reduced by 25 decibels (the first 25 decibels were discounted as discussed
above), equals negative 1.25, which when multiplied by the established factor of 1.5 amounts to
a nonratable hearing loss in the left ear.
Testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps
revealed decibel losses of 10, 10, 30 and 55 respectively. These decibels amounted to 105,
which, when divided by 4, reflected an average hearing loss at those cycles of 26.25 decibels.
The average of 26.25 decibels, reduced by 25 decibels (the first 25 decibels were discounted as
discussed above), equals 1.25 decibels, which when multiplied by the established factor of 1.5
totals a 1.88 percent hearing loss in the right ear. This loss was rounded up for a total two
percent loss in the right ear.9 The Office medical adviser correctly determined that appellant had
two percent monaural hearing loss in his right ear, for which he received a schedule award on
September 2, 2009.
The Board notes that the Office medical adviser properly applied the applicable standards
of the A.M.A., Guides, to determine that appellant had two percent monaural right-sided hearing
loss. There is no other probative medical evidence of record to establish that he sustained any
greater impairment.10
CONCLUSION
The Board finds that appellant has no more than two percent monaural hearing loss of his
right ear.

7

Id.

8

See Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
9

See J.H., supra note 5; David W. Ferrall, 56 ECAB 362 (2005).

10

The record contains several audiograms submitted by appellant and the employing establishment, but none of
these were certified by a physician as accurate. The Board has held that, if an audiogram is prepared by an
audiologist it must be certified by a physician as being accurate before it can be used to determine the percentage of
hearing loss. Joshua A. Holmes, 42 ECAB 231, 236 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the September 2, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 5, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 10-997
Issued: November 30, 2010

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 February 29, 2010 appellant filed a timely appeal from the November 10, 2009 merit
decision of the Office of Workers’ Compensation Programs, which terminated her compensation
for an accepted muscle strain. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.1
ISSUE
The issue is whether the Office properly terminated appellant’s compensation for an
accepted muscle strain.

1

The Board has no jurisdiction to review medical evidence submitted after the Office’s November 10, 2009
decision. 5 U.S.C. § 501.2(c)(1) (the Board’s review of a case is limited to the evidence in the case record that was
before the Office at the time of its final decision).

FACTUAL HISTORY
On June 17, 2008 appellant, then a 39-year-old health technician, sustained an injury in
the performance of duty when she moved a patient from a bed to a geri-chair. The Office
accepted her claim for strain of back, latissimus dorsi muscle, right side.
On April 6, 2009 Dr. Noubar A. Didizian, a Board-certified orthopedic surgeon and
Office referral physician, examined appellant. He related her history and complaints and
described his findings on physical examination. Dr. Didizian also reviewed the medical record.
Based on his examination, which was short of a year from the date of injury, he concluded that
appellant had fully recovered from the accepted injury without any evidence of objective
orthopedic or neurological deficit. Dr. Didizian felt that she was capable of returning to regular
duty without restriction. He reported no need for further medical treatment related to the
accepted injury. Dr. Didizian added the fact that appellant had scoliosis in the thoracolumbar
area “would result in ongoing symptomatology in the thoracic spine inherent to the diagnosis of
scoliosis.”
The Office provided a copy of Dr. Didizian’s report to the attending physician,
Dr. Stephen F. Ficchi, Board-certified by the American Osteopathic Board of Family Physicians.
On August 18, 2009 Dr. Ficchi related appellant’s history and complaints and described his
findings on physical examination. He reviewed her treatment and diagnostic testing. Dr. Ficchi
diagnosed disc protrusion and bulging at C3-4; thoracic spine strain and sprain with dysfunction;
lumbar spine strain and sprain with dysfunction; bulging disc at L5-S1; and bilateral L4-5 and S1
radiculopathy. He stated that all these diagnoses were a direct consequence of the accident that
occurred in June 2008:
“I must respectfully disagree with [Dr. Didizian’s] conclusion as [appellant] is
clearly still suffering from chronic pain. She is a hardworking and honest woman
who, despite serious injuries, has continued to work. It is my medical belief that
should she return to work without restrictions her condition would rapidly
deteriorate resulting in an exacerbation which would prolong her recovery and
treatment time.”
***
“It is my medical opinion that[,] within a reasonable degree of medical certainty,
that [appellant] suffered serious and permanent musculoskeletal, discogenic and
neurological injuries. Prior to the accident, she was completely asymptomatic and
functioning without limitations. Subsequent to the accident the injuries
[appellant] sustained have prevented her from working without restrictions and
made the performance of her activities of daily living painful, difficult and often
times requires assistance. Her current medical condition can be easily
exacerbated and may prevent normal activities when symptoms are at their worst.
She will therefore need to limit the intensity and duration of her activities in order
to control these exacerbations.”

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In a decision dated November 10, 2009, the Office terminated appellant’s compensation
for the accepted latissimus dorsi strain effective that date. It found that Dr. Didizian’s opinion
represented the weight of the medical evidence. The Office accorded more weight to
Dr. Didizian because he was a Board-certified orthopedic surgeon, while Dr. Ficchi was a pain
management physician. It also noted that it accepted appellant’s claim for a latissimus dorsi
strain/sprain only, which Dr. Didizian found to be a reasonable diagnosis given the mechanism
of injury. The Office explained that it had not accepted the medical conditions for which
Dr. Ficchi cited the need for treatment, disability and work restrictions. It found that he offered
insufficient medical rationale to establish the element of causal relationship with respect to these
other medical conditions. The Office added that Dr. Ficchi provided no objective findings to
support that appellant continued to suffer from the accepted strain/sprain.
On appeal, appellant argues that she still suffers pain in her back, which has moved up
her neck and down her leg and arm. She states that she is unable to grasp items with her right
hand. “I feel my condition has exacerbated.”
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.2 Once the Office accepts a
claim, it has the burden of proof to justify termination or modification of compensation benefits.3
After it has determined that an employee has disability causally related to her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.4
ANALYSIS
The Office accepted that appellant sustained a right latissimus dorsi muscle strain on
June 17, 2008 when she moved a patient from a bed to a geri-chair. On November 10, 2009 it
terminated compensation for that specific medical condition. The Office therefore bears the
burden of justifying the termination.
The Office accords more weight to the opinion of Dr. Didizian, its referral physician, in
part because he is Board-certified in orthopedic surgery.5 Dr. Ficchi, the attending physician, is
also Board-certified and when it comes to a simple muscle strain, it is not clear that an
orthopedic surgeon has more expertise than a physician of osteopathic medicine, a practice that

2

5 U.S.C. § 8102(a).

3

Harold S. McGough, 36 ECAB 332 (1984).

4

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating the Medical Evidence, Chapter
2.810.6.a(3) (September 2010) (the opinion of a Board-certified specialist in the appropriate field will usually carry
more weight than that of a specialist who is not Board-certified or who is certified in an unrelated field).

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focuses special attention on the musculoskeletal system. Both are well qualified to address the
issue.
Dr. Didizian’s opinion appears sound, rational and logical. His physical examination of
appellant revealed no evidence of objective orthopedic deficit.6 Dr. Didizian noted that it had
been short of a year since the date of injury. He therefore concluded that appellant had fully
recovered from the June 2008 muscle strain. Dr. Didizian added that her significant
thoracolumbar scoliosis would produce ongoing symptomatology.
Dr. Ficchi’s opinion, by contrast, left too many questions unanswered. He noted that
appellant complained of lower back pain with paresthesias and radicular symptoms, symptoms
not normally associated with a muscle strain. Appellant’s complaints seemed more consistent
with Dr. Ficchi’s diagnosis of lumbar disc bulging and L4-5 and S1 radiculopathy, medical
conditions not at issue in the termination of compensation for the accepted muscle strain.
Dr. Ficchi’s physical findings, much less extensive than those reported by Dr. Didizian, showed
severe muscle spasms on palpation of the lumbar spine.7 However, he did not identify the right
latissimus dorsi and did not explain why appellant still suffered from a muscle strain more than a
year after the incident at work. Dr. Ficchi concluded that she was still suffering from chronic
pain, but the question for determination is whether she still suffered from the right latissimus
dorsi muscle strain she sustained in June 2008 and how he could determine this given his other
diagnoses.
The Board finds that Dr. Ficchi’s opinion is less probative on the issue of right latissimus
dorsi muscle strain and is insufficient to create a conflict in medical opinion requiring referral to
an impartial medical specialist under 5 U.S.C. § 8123(a). Dr. Didizian’s opinion represents the
weight of the medical evidence and justifies the termination of compensation benefits for the
accepted muscle strain. The Board will therefore affirm the Office’s November 10, 2009
decision terminating appellant’s compensation.
Appellant argues on appeal that she still suffers pain in her back, which has moved up her
neck and down her leg and arm. She adds that she is unable to grasp items with her right hand.
As the Board indicated earlier, the issue, strictly speaking, is not whether she still suffers from
chronic back pain, for which there may be several causes, but whether she continues to suffer
from a right latissimus dorsi muscle strain, for which she was receiving compensation benefits.
If appellant claims compensation benefits for medical conditions not yet accepted, such as the
protruding and bulging discs and radiculopathy Dr. Ficchi diagnosed, the Office has correctly
advised her that Dr. Ficchi must explain how the June 2008 work incident caused or aggravated
those medical conditions. It is appellant who carries the burden of proof in such matters.

6

Back flexion to 90 degrees revealed some soreness over the right sacroiliac area and diffusely so with full tilt,
rotation and extension of the torso.
7

An early examination of appellant on June 19, 2008 showed range of motion intact and a small amount of spasm
in the lower right latissimus dorsi “mid thoracic.”

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CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation for the
accepted muscle strain.
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 30, 2010
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

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