United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
East Elmhurst, NY, Employer
__________________________________________

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

Docket No. 19-1623
Issued: March 19, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION

On July 26, 2019 appellant filed a timely appeal from a March 13, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.

1
The Board notes that, following the March 13, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a lumbar injury
causally related to the accepted November 26, 2018 employment incident.
FACTUAL HISTORY
On November 28, 2018 appellant, then a 31-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that he sustained L4, L5, and S1 disc herniations on
November 27, 2018 when he performed a squat jump during a training exercise while in the
performance of duty. The employing establishment corrected the date of injury to November 26,
2018 and noted that he had been transported to a hospital emergency department by ambulance.
Appellant stopped work on November 26, 2018.3
In support of his claim, appellant submitted a November 26, 2018 employing establishment
light-duty form signed by Dr. Ugo Enzekwele, Board-certified in emergency medicine, finding
him unable to perform light- or limited-duty work due to an unspecified condition. OWCP also
received hospital emergency department reports dated November 26, 2018 from Jimmy Lee, a
physician assistant, and Kerstin Andersen, a registered nurse.4
Dr. Sergai N. DeLamora, a Board-certified orthopedic surgeon, provided reports dated
from November 28, 2018 to January 9, 2019 diagnosing lumbar pain and bilateral lumbar
radiculopathy along with a sprain and strain due to performing jump squats while at work on
November 26, 2018. In an attending physician’s report (Form CA-20) dated December 5, 2018,
he checked a box marked “yes” indicating that the diagnosed lumbar pain was caused or
aggravated by the November 26, 2018 employment incident. Dr. DeLamora held appellant off
work.5
In a February 6, 2019 development letter, OWCP advised appellant of the factual and
medical deficiencies of his claim. It informed him of the evidence necessary to establish his claim
and provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond.
In response, appellant provided a March 7, 2019 statement alleging that while performing
a squat jump during required physical training at work on November 26, 2018, he felt three pops
in his back and experienced the immediate onset of lumbar pain. He submitted additional medical
evidence.

3

Appellant filed claims for wage-loss compensation for the period January 11 to March 1, 2019.

4
A November 26, 2018 lumbar computerized tomography (CT) scan demonstrated moderate disc degeneration,
disc bulges at L3-4 and L4-5 with moderate neural foraminal narrowing, and a diffuse L5-S1 disc bulge. A November
30, 2018 lumbar magnetic resonance imaging (MRI) scan demonstrated disc bulges at L2-3 and L3-4 with mild
bilateral neural foraminal stenosis, an L4-5 posterior annular tear with a large left paracentral disc herniation and
compression of the left L4 and L5 and right L5 nerve roots, and a L5-S1 posterior annular tear.
5

Appellant participated in physical therapy treatments from December 12, 2018 to February 27, 2019.

2

In February 5 and 6, 2019 reports, Dr. DeLamora held appellant off work due to lumbar
pain. In a February 27, 2019 report, he returned appellant to full-duty work. In an attending
physician’s report (Form CA-20) of even date, Dr. DeLamora checked a box marked “yes”
indicating that the November 26, 2018 employment incident caused appellant’s lumbar pain. In a
narrative report of even date, he noted appellant’s account of performing jump squats during
physical training at work when he landed awkwardly and “felt a pop in his back.” A lumbar spine
MRI scan revealed a disc herniation and annular tear. Dr. DeLamora opined that “this work
incident caused [appellant’s] symptoms.”
By decision dated March 13, 2019, OWCP accepted that the November 26, 2018
employment incident occurred as alleged, but denied appellant’s claim as causal relationship was
not established.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.9 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and, place, and in the manner alleged.10 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.11

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
10
S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB
137 (2005).
11

J.B., Docket No. 19-1101 (issued November 20, 2019); A.D., Docket No. 17-1855 (issued February 26, 2018);
C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008).

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Causal relationship is a medical issue, and rationalized medical opinion evidence is
required to establish causal relationship.12 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between a diagnosed
condition and the specific employment incident identified by the claimant.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a lumbar injury
causally related to the accepted November 26, 2018 employment incident.
Dr. Enzekwele found appellant disabled for work on November 26, 2018, but did not
provide a medical diagnosis or reference the accepted employment incident. The Board has held
that medical reports which do not provide a firm diagnosis and render an opinion on causal
relationship are of no probative value and are insufficient to establish the claim.14
In attending physician’s reports (Form CA-20) dated November 28, 2018, December 5,
2018 and February 27, 2019, Dr. DeLamora checked a box marked “yes” indicating that the
November 26, 2018 employment incident caused appellant’s lumbar condition. However, the
checking of a box marked “yes” in a form report, without additional explanation or rationale, is
insufficient to establish causal relationship.15
Dr. DeLamora opined in a February 27, 2019 narrative report that performing jump squats
while at work on November 26, 2018 caused appellant’s symptoms. However, he did not provide
medical reasoning to explain how the accepted employment incident caused appellant’s lumbar
conditions. The Board has held that a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how a given medical condition was
related to an accepted employment incident.16 Dr. DeLamora’s opinion is therefore insufficient to
establish appellant’s claim.

12

J.B., id.; L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB
140 (2000).
13
See B.J., Docket No. 18-1276 (issued February 4, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).
14

I.M., Docket No. 19-1038 (issued January 23, 2020); V.U., Docket No. 19-0755 (issued November 25, 2019);
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., No. 17-1549 (issued July 6, 2018).
15

L.S., Docket No. 18-0264 (issued January 28, 2020); Lillian M. Jones, 34 ECAB 379, 381 (1982).

16
G.R., Docket No. 19-0940 (issued December 20, 2019); D.L., Docket No. 19-0900 (issued October 28, 2019);
Y.D., Docket No. 16-1896 (issued February 10, 2017); C.M., Docket No. 14-0088 (issued April 18, 2014).

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Appellant also submitted reports by Mr. Lee, a physician assistant, and Ms. Andersen, a
nurse. As physician assistants and nurses are not considered physicians as defined under FECA,
their medical findings and opinions are insufficient to establish entitlement to compensation
benefits.17
Finally, appellant submitted results from diagnostic testing. The Board has held, however,
that diagnostic studies are of limited probative value as they do not address whether the
employment incident caused any of the diagnosed conditions.18 These reports are therefore
insufficient to establish the claim.
As appellant has not submitted rationalized medical evidence sufficient to establish an
injury causally related to the accepted employment incident, the Board finds that he has not met
his burden of proof.
On appeal appellant contends that he submitted all medical evidence available to him. As
determined above, the medical evidence of record is insufficient to establish a causal relationship
between the accepted November 26, 2018 employment incident and the diagnosed lumbar
conditions.
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 his burden of proof to establish a lumbar injury
causally related to the accepted November 26, 2018 employment incident.19

17

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See id. at § 8101(2); T.K., Docket No. 19-0055 (issued May 2, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11
(2006) (lay individuals such as nurses, physician assistants, and physical therapists are not competent to render a
medical opinion under FECA). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB
208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of probative
medical evidence from a physician).
18

M.J., Docket No. 19-1287 (issued January 13, 2020); see J.S., Docket No. 17-1039 (issued October 6, 2017).

19

The case record contains a form for authorization for examination and/or treatment (Form CA-16) executed by
the employing establishment on November 26, 2018. The Board notes that where an employing establishment
properly executes a Form CA-16 which authorizes medical treatment as a result of an employee’s claim for a workrelated injury, the Form CA-16 creates a contractual obligation, which does not involve the employee directly, to pay
for the cost of the examination or treatment regardless of the action taken on the claim. See Tracy P. Spillane, 54
ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date
of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).

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ORDER
IT IS HEREBY ORDERED THAT the March 13, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. DEPARTMENT OF HOMELAND
SECURITY, IMMIGRATION & CUSTOMS
ENFORCEMENT, Brownsville, TX, Employer
__________________________________________

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

Docket No. 09-1496
Issued: April 19, 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 May 7, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 6, 2009, denying his claim for a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the case.
ISSUE
The issue is whether appellant established that he is entitled to a schedule award.
FACTUAL HISTORY
On October 29, 2007 appellant, then a 55-year-old supervisory special agent, filed an
occupational disease claim alleging that he developed a pulmonary condition due to his
workplace exposure to mothball vapors, dust contamination, rodent fecal matter and mold. The
Office accepted his claim for bronchitis and pneumonitis due to fumes and vapors.

From December 6 to 10, 2007, appellant came under the treatment of
Dr. Jairo Rodriguez, a Board-certified pulmonologist, for hypersensitivity and pneumonitis, who
noted that he presented with symptoms of shortness of breath, soreness of the chest wall, dry
cough and wheezing that was aggravated by his work environment. Appellant reported working
conditions which consisted of poor circulation in the building, episodes of flooding of carpets
and rat and cockroach infestation. On December 6, 2007 he underwent a pulmonary function
test performed for Dr. Rodriguez, which revealed a forced expiratory volume in the first second
(FEV1) of 2.59, forced expiratory volume (FVC) of 3.15. The author noted poor patient effort
and advised that the maneuvers were not reproducible and the results should be interpreted with
care.
Appellant sought treatment from Dr. Tan Nguyen, a Board-certified otolaryngologist, on
January 11, 2008 for allergy and sinus symptoms. Dr. Nguyen noted that allergy testing in
November 2007 revealed results of dust, epidermals and molds and recommended
immunotherapy and minimization of exposure to these allergens. A July 12, 2008 report from
Dr. Ammar Halloum, a Board-certified pulmonologist, opined that appellant had a worsening of
his obstructive pulmonary disease due to recent exposure to mold. Dr. Halloum stated that a
June 26, 2008 pulmonary function test was objective evidence that appellant’s lung function was
deteriorating and further exposure to environments where mold was present would worsen his
condition. Appellant submitted a February 20, 2008 report from the Occupational Safety &
Health Administration, noting unsafe or unhealthful work conditions specifically citing that the
floors of the workrooms were not maintained in a clean, dry and drained condition free from
pathogenic mold and that the workplace did not have an effective extermination program to
prevent the entrance of vermin.
On October 10, 2008 appellant filed a claim for a schedule award. He submitted the
pulmonary function test performed by Dr. Rodriguez dated December 27, 2007, which revealed
moderate obstructive airways disease, increased diffusing capacity consistent with asthma or
cardiovascular process and a restrictive process. The test noted that the results appeared to be
valid; however, the acceptable threshold standard was not met. A June 24, 2008 exercise test
revealed submaximal effort. Dr. Rodriguez noted based on the oxygen uptake in the range of
20 to 24 kilograms per minute, appellant could perform eight hours of mild to moderate work.
On June 26, 2008 appellant underwent a pulmonary function test which revealed airway
obstruction. Although the results of the test appeared to be valid, the acceptable threshold
standard was not met and there was invalid effort for diffusing capacity for carbon dioxide
(DLCO). A June 26, 2008 arterial blood gas report revealed normal PH, partial pressure of
carbon dioxide and oxygen (PCO2) and partial pressure of oxygen (PO2). On August 5, 2008
appellant underwent a pulmonary function test, which revealed severe airway obstruction,
reduced lung volumes and concurrent restrictive process. The FEV1 of 1.16 which was
34 percent of predicted (3.43), a FVC of 2.47 which was 56 percent of predicted (4.41) and a
FEV1/FVC of 47 which was 60 percent of predicted (78.00). It was noted that the test results
met the threshold standards for acceptability and reproducibility. The pulmonologist noted that
the results suggested severe airway obstruction. In an October 28, 2008 report, Dr. Rodriguez
noted the initial pulmonary function test of December 27, 2007 revealed moderate obstruction
and the August 5, 2008 test revealed severe obstruction. He diagnosed reactive airway disease
syndrome and bronchiectasis and stated that appellant’s condition was progressive. Appellant’s
lung function was 50 percent of that expected for a person of his age. A March 10, 2008
2

computed tomography (CT) scan of the chest revealed minimal left basilar bronchiectatic
changes with no evidence of interstitial lung disease. A CT scan of the chest dated August 1,
2008 revealed no abnormalities.
On November 25, 2008 the Office referred appellant for a second opinion evaluation to
Dr. Douglas W. Jenkins, a Board-certified pulmonologist. It provided Dr. Jenkins with
appellant’s medical records, a statement of accepted facts and a detailed description of his
employment duties. In a December 17, 2008 report, Dr. Jenkins reviewed the records provided
to him and examined appellant. He noted a chest x-ray obtained in his office revealed minimal
atelectasis with no evidence of bronchiectasis. Dr. Jenkins diagnosed cough and dyspnea,
otherwise unspecified. He stated that appellant’s complaints of cough and shortness of breath
were not supported by objective evidence and advised that these symptoms may be caused by the
prescribed inhibitor Ramipril. Dr. Jenkins reviewed the extensive testing appellant underwent
including the pulmonary function test performed under his direction. He noted that appellant
was unable to perform the pulmonary function test and he found no physiologic explanation for
this result. Dr. Jenkins advised that appellant showed minimal breathing effort during testing
and during his physical examination and noted that most of the recent pulmonary function tests
also demonstrated inadequate effort. He stated that exposure to molds and rodent droppings
could cause simple allergies which would be manifested as rhinitis, sinusitis or asthma.
However, Dr. Jenkins found no evidence of substantial exposure to corrosive gases and could not
find a reasonable connection between appellant’s current symptoms and his employment. He
noted that the potential for simple allergies based on environmental exposure was present;
however, he found no evidence of allergic phenomenon. Dr. Jenkins advised that in the absence
of a pulmonary function test the evaluator must rely on the best objective information available.
He noted that blood gas testing revealed normal values for oxygen, carbon dioxide and PH and a
CT scan showed minimal changes that would not be expected to impair overall pulmonary
function. Similarly, a June 24, 2008 exercise test showed submaximal effort but was otherwise
normal and indicated the ability to perform eight hours of mild to moderate work. Dr. Jenkins
opined that appellant’s observed levels of exercise supported that his lung function was normal.
He opined that the objective measures of pulmonary function were normal and pursuant to the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment,1 (A.M.A., Guides) appellant had no lung impairment.
On March 31, 2009 an Office medical adviser concurred with Dr. Jenkins determination
that, under with the A.M.A., Guides, appellant had no impairment of the lungs. He noted that
appellant reached maximum medical improvement on December 17, 2008. The medical adviser
noted that Dr. Jenkins performed pulmonary function studies; however, appellant was incapable
of performing the test. He further opined that Dr. Jenkins could not identify any impairment
based on submaximal effort during testing and concluded that appellant sustained zero percent
impairment of the lungs.
In a decision dated April 6, 2009, the Office denied appellant’s claim for a schedule
award.

1

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

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LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,3 including that he sustained an injury in the performance of
duty as alleged and that his disability, if any, was causally related to the employment injury.4
The schedule award provision of the Act5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, 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.
With regard to respiratory or pulmonary impairments, the A.M.A., Guides provides a
table consisting of four classes of respiratory impairment based on a comparison of observed
values for certain ventilatory function measures and their respective predicted values.7 For
classes 2 through 4, the appropriate class of impairment is determined by whether the observed
values fall alternatively within identified standards for FVC, FEV1, DLCO8 or maximum oxygen
consumption (VO2Max). For each of the FVC, FEV1 and DLCO results, an observed result will
be placed within Class 2, 3 or 4 if it falls within a specified percentage of the predicted value for
the observed person.9 For VO2Max, an observed result will be placed within Class 2, 3 or 4 if it
falls within a specified range of oxygen volume.10 A person will fall within Class 1 and be
deemed to have no impairment, if the FVC, FEV1, ratio of FEV1 to FVC and DLCO are greater
than or equal to the lower limit of normal, or the VO2Max is greater than or equal to a specified
oxygen volume.11
2

5 U.S.C. §§ 8101-8193.

3

Donna L. Miller, 40 ECAB 492, 494 (1989); Nathaniel Milton, 37 ECAB 712, 722 (1986).

4

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

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

See A.M.A., Guides, Table 5.10 at 107 (5th ed. 2001).

8

This is characterized in the A.M.A., Guides as the DLCO test.

9

With respect to Class 2, the observed value must also be less than the lower limit of normal. The predicted
normal values and the predicted lower limits of normal values for the FVC, FEV1 and DLCO tests are delineated in
separate tables. A.M.A., Guides 95-100, Tables 5-2a through 5-7b.
10

The A.M.A., Guides provides alternate means for measuring such volumes.

11

See id. at 108.

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ANALYSIS
On appeal, appellant contends that he is entitled to a schedule award for permanent
impairment of the lungs. The Office accepted his claim for bronchitis and pneumonitis due to
fumes and vapors. The Board finds that there is a conflict in medical opinion between
Dr. Jenkins and Office medical adviser, for the Office and Dr. Rodriguez, appellant’s treating
physician.
Dr. Jenkins, reviewed the pulmonary function test performed under his direction and
noted that appellant was unable to perform the test and he found no physiologic explanation for
this result. He noted that appellant exhibited minimal breathing effort while being tested, during
his physical examination and during the other recent pulmonary function tests. Dr. Jenkins
opined that the objective measures of pulmonary function were normal including a June 26, 2008
arterial blood gas report, a CT scan and an exercise test of June 24, 2008; therefore, there was no
lung impairment pursuant to the A.M.A., Guides. The Office medical adviser concurred in
Dr. Jenkins’ determination. By contrast, Dr. Rodriguez performed a pulmonary function test on
August 5, 2008 that revealed severe airway obstruction and reduced lung volumes which
indicated concurrent restrictive process. He noted that the results of the test met the acceptability
threshold standards for acceptability and reproducibility. Dr. Rodriguez noted FEV1 of 1.16 was
34 percent of predicted,12 FVC of 2.47 was 56 percent of predicted13 and an FEV1/FVC of 47
was 60 percent of predicted, which pursuant to the A.M.A., Guides, would correlate to a ratable
pulmonary impairment.14 He determined that the work-related exposure was the competent
producing factor for appellant’s subjective and objective findings. Dr. Rodriguez supported an
impairment rating of the lungs, while the second opinion physician and Office medical adviser
opined that appellant did not sustain permanent impairment to the lungs.
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”15 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.16 The Board finds that the Office should have referred appellant to an impartial
medical specialist to resolve the medical conflict regarding the extent of permanent impairment,
if any, arising from appellant’s accepted employment injury.
Therefore, in order to resolve the conflict in the medical opinion, the case will be
remanded to the Office to refer appellant, along with the case record and a statement of accepted
facts, to an impartial medical specialist. After such further development as the Office deems
12

Id. at 107, Table 5-12.

13

Id.

14

Id.

15

5 U.S.C. § 8123(a).

16

William C. Bush, 40 ECAB 1064 (1989).

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necessary, an appropriate decision should be issued regarding the extent of appellant’s lung
impairment.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: April 19, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0945
Issued: March 16, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 3, 2021 appellant filed a timely appeal from the December 8, 2020 OWCP
decision, to which the Clerk of the Appellate Boards assigned Docket No. 21-0945.
By decision dated March 13, 2020, the Board set aside the December 3, 2018 OWCP
decision and remanded the case for OWCP to apply the more stringent clear evidence of error
standard for an untimely request for reconsideration.
In accordance with the Board’s March 13, 2020 decision, OWCP issued a December 8,
2020 decision and denied appellant’s November 20, 2018 request for reconsideration of the merits
of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of error.
On March 7, 2022 the Board issued an order under Docket No. 19-1354, finding that the
March 13, 2020 Board decision was void ab initio and of no effect. The Board reissued the
decision on March 13, 2022, finding that appellant’s November 20, 2018 request for
reconsideration was timely filed from the most recent merit decision dated March 13, 2018.
The Board, having duly considered the matter, notes that because the Board voided the
prior decision under Docket No. 19-1354, OWCP had no jurisdiction to issue the December 8,
2020 decision. Consequently, the December 8, 2020 decision is null and void.

Pursuant to 5 U.S.C. § 8149 and 20 C.F.R. §§ 501.2(c) and 501.3(a), the Board’s
jurisdiction is limited to review of final adverse decisions of OWCP issued under the Federal
Employees’ Compensation Act (FECA). 1 As the December 8, 2020 decision is null and void, the
appeal assigned Docket No. 21-0945 does not contain a final adverse decision over which the
Board may properly take jurisdiction.2 Therefore, the Board finds that the appeal docketed as No.
21-0945 is dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0945 is dismissed.
Issued: March 16, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2

See Order Dismissing Appeal, L.R., Docket No. 20-1447 (issued April 7, 2021).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, HAMMOND POST
OFFICE, Hammond, IN, Employer
__________________________________________

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

Docket No. 21-0604
Issued: January 14, 2022

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 March 9, 2021 appellant filed a timely appeal from November 4 and December 9, 2020
merit decisions and two January 19, 2021 nonmerit decisions of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant forfeited her right
to compensation for the period November 19, 2016 through June 7, 2019, pursuant to 5 U.S.C.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 19, 2021 decisions, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the 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.

§ 8106(b)(2), because she knowingly failed to report her self-employment activities and earnings;
(2) whether OWCP properly found that appellant received an overpayment of compensation in the
amount of $28,710.22 for the period November 19, 2016 through June 7, 2019 as she forfeited her
entitlement to compensation for this period; (3) whether OWCP properly found appellant at fault
in the creation of the $28,710.22 overpayment, thereby precluding waiver of recovery of the
overpayment; (4) whether OWCP properly denied appellant’s request for a hearing regarding its
forfeiture decision under section 8124 of FECA; and (5) whether OWCP properly denied
appellant’s request for a prerecoupment hearing.
FACTUAL HISTORY
On December 21, 2015 appellant, then a 30-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 19, 2015 she sustained a back injury when she bent
over a gurney in an attempt to pick up a parcel while in the performance of duty. She stopped
work on December 19, 2015 and returned to work on February 4, 2016 in a part-time, limited-duty
position. Appellant returned to full-time work on December 14, 2016. OWCP accepted
appellant’s claim for lumbar strain and paid her wage-loss compensation.
Appellant filed claims for compensation (Form CA-7) alleging disability from work due to
her December 19, 2015 employment injury. The forms covered the periods February 4, 2016
through January 6, 2017 and June 24, 2017 through June 7, 2019. Each Form CA-7 included a
section for the injured worker to make an affidavit regarding employment activity . The forms
requested information regarding any and all earnings from employment; including any
employment for which a salary, wages, income, sales commissions, or payment of any kind was
received during the period(s) claimed. This was to include self-employment, odd jobs,
involvement in business enterprises, as well as service with the military. The forms advised that
fraudulently concealing employment, or failing to report income, may result in forfeiture of
compensation benefits and/or criminal prosecution. The CA-7 forms then provided boxes for the
employee to mark “Yes” or “No,” and spaces for the name and address of the business, the dates
worked, and the type of work. The forms also contained certification clauses as to the truthfulness
of the statements made under penalty of criminal prosecution for false or misleading statements.
On her CA-7 forms, appellant marked the “No” boxes, except for on a few forms on which she did
not respond.
On June 2, 2020 OWCP received an August 27, 2019 investigative report from the
employing establishment’s Office of the Inspector General. The evidence described in the report
revealed that appellant had a business called Krystale’s Tastefull Sensationz and that she
performed work activities for the business for the time periods covered by several CA-7 forms. A
special agent who completed the report noted that agency employees reported to the employing
establishment that appellant was self -employed by selling handmade crafts and sweets that she
advertised on social media. The investigative report includes several images of crafts and sweets
sold by appellant in this manner. The special agent noted that, in one of her social media postings,
the caption for one image of a craft tool set included among its hashtags #entrepreneurship,
#smallbusinessowner, #smallbusiness, #entrepreneur, and #krystalestastefullsensationz. He
advised that the investigation revealed that two coworkers and another individual described
various crafts and sweets they had bought from appellant, and the amounts they had paid for such

2

items. The investigative report contains an invoice for $210.00 for cowboy hats with names
purchased from appellant’s business.
The investigative report further revealed that PayPal Holdings was subpoenaed to recover
appellant’s “Krystale’s Tastefull Creationz” PayPal account, and that the special agent
subsequently received a spreadsheet of her business transactions using PayPal. The investigative
report included the statement, “The PayPal spread-sheet showed [that appellant] received
$3,348.00 for ‘Krystale’s Tastefull Creationz’ starting November 19, 2016 through June 7, 2019.”
Furthermore, it was noted that information from the website Etsy, “showed a transaction on
February 18, 2019, for $79.00.”
By decision dated November 4, 2020, OWCP determined that appellant forfeited her right
to compensation from November 19, 2016 through June 7, 2019, because she knowingly failed to
report employment and earnings on CA-7 forms covering this period. It indicated that she was
self-employed in her own business, which sold crafts and sweets, and noted that the wording of
the CA-7 forms advised her of the need to report such employment and earnings.
On November 4, 2020 OWCP advised appellant of its preliminary overpayment
determination that she received a $28,710.22 overpayment of compensation due to the fact that
she forfeited her compensation for the period November 19, 2016 through June 7, 2019.3 It also
made a preliminary determination that she was at fault in the creation of the overpayment, thereby
precluding waiver of recovery of the overpayment. OWCP indicated that the CA-7 forms
completed by her advised her of the type of employment activities and earnings that needed to be
reported. It advised appellant that she could submit evidence challenging the fact, amount, or
finding of fault and request waiver of the overpayment. OWCP provided her with an overpayment
action request form and an overpayment recovery questionnaire (Form OWCP-20). It notified
appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing. Appellant did not
respond within the afforded period.
By decision dated December 9, 2020, OWCP finalized its preliminary overpayment
determination, finding that appellant received a $28,710.22 overpayment of compensation for the
period November 19, 2016 through June 7, 2019. It further determined that she was at fault in the
creation of the overpayment, thereby precluding waiver of recovery of the overpayment.
By appeal request form postmarked December 18, 2020, appellant requested a hearing
before a representative of OWCP’s Branch of Hearings and Review in connection with OWCP’s
November 4, 2020 forfeiture decision.
By Form OWCP-20 postmarked December 18, 2020, she requested a prerecoupment
hearing before a representative of OWCP’s Branch of Hearings and Review in connection with
the overpayment matter.

3

The record contains payment records and worksheets showing that appellant received $28,710.22 in compensation
from November 19, 2016 through June 7, 2019.

3

By decision dated January 19, 2021, OWCP denied appellant’s request for a hearing in
connection with its November 4, 2020 forfeiture decision. It found that her request was untimely
as it was filed on December 18, 2020, which was more than 30 days after the issuance of the
November 4, 2020 decision. OWCP indicated that, in its discretion, it had considered appellant’s
request and determined that the forfeiture issue could be equally-well addressed by requesting
reconsideration and submitting additional evidence.
By separate decision dated January 19, 2021, OWCP denied appellant’s request for a
prerecoupment hearing finding that it was untimely filed. It noted that the request was postmarked
on December 18, 2010, which was more than 30 days after the November 4, 2020 preliminary
overpayment determination. OWCP further noted that, while a final overpayment decision was
issued on December 9, 2020, a final decision concerning an overpayment was not subject to the
hearing provision of 5 U.S.C. § 8124(b).
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA provides that an employee who fails to make an affidavit or
report when required or knowingly omits or understates any part of his or her earnings, forfeits his
or her right to compensation with respect to any period for which the affidavit or report was
required.4 An employee, however, can only be subjected to the forfeiture provision of 5 U.S.C.
§ 8106(b) if he or she knowingly failed to report employment or earnings. It is not enough to
merely establish that there were unreported earnings. 5 OWCP’s procedures recognize that,
forfeiture is a penalty, and, as a penalty provision, it must be narrowly construed. 6 The term
knowingly is defined within OWCP’s regulations as with knowledge, consciously, willfully, or
intentionally.7
OWCP’s regulations define earnings from employment or self-employment as: (1) gross
earnings or wages before any deductions and includes the value of subsistence, quarters,
reimbursed expenses, and any other goods or services received in kind as remuneration; or (2) a
reasonable estimate of the cost to have someone else perform the duties of an individual who
accepts no remuneration.”8 Neither lack of profits, nor the characterization of the duties as a
hobby, removes an unremunerated individual’s responsibility to report the estimated cost to have
someone else perform his or her duties.”9

4

5 U.S.C. § 8106(b).

5

T.G., Docket No. 19-0051 (issued August 20, 2019); P.H., Docket No. 17-1362 (issued March 13, 2018).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Forfeiture, Chapter 2.1402.5, 8 (May 2012). See also M.G.,
Docket No. 20-0735 (issued October 23, 2020); T.P., Docket No. 17-0717 (issued April 11, 2018); Christine P.
Burgess, 43 ECAB 449 (1992).
7

20 C.F.R. § 10.5(n). See also R.A., Docket No. 18-0406 (issued January 28, 2019); I.S., Docket No. 17-0897
(issued April 9, 2018); Anthony A. Nobile, 44 ECAB 268 (1992).
8

20 C.F.R. § 10.5(g).

9

Id.

4

ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant forfeited her right to
compensation for the periods November 19, 2016 through January 6, 2017 and June 24, 2017
through June 7, 2019, pursuant to 5 U.S.C. § 8106(b)(2), because she knowingly failed to report
her self-employment activities and earnings.
The evidence of record establishes that appellant had earnings and employment outside her
federal employment during the period November 19, 2016 through June 7, 2019 that she failed to
report on the CA-7 forms she completed, which covered the periods November 19, 2016 through
January 6, 2017 and June 24, 2017 through June 7, 2019. An investigative report from the
employing establishment’s Office of Inspector General described evidence, which showed that
appellant had a business called Krystale’s Tastefull Sensationz and that she performed work
activities for the business for the time periods covered by several CA-7 forms. The special agent
who completed that report noted that agency employees reported to the employing establishment
that appellant was self-employed by selling handmade crafts and sweets that she advertised on
Facebook. The investigative report includes several images of crafts and sweets sold by appellant
in this manner. The special agent advised that the investigation revealed that two coworkers and
another individual described various crafts and sweets they had bought from appellant, and the
amounts they had paid for such items. The investigative report contains an invoice for $210.00
for cowboy hats with names purchased from appellant’s business. The investigative report further
revealed that PayPal Holdings was subpoenaed to recover appellant’s “Krystale’s Tastefull
Creationz” PayPal account, and that the special agent subsequently received a spreadsheet of her
business transactions using PayPal. The investigative report included the statement, “The PayPal
spread-sheet showed [appellant] received $3,348.00 for ‘Krystale’s Tastefull Creationz’ starting
November 19, 2016 through June 7, 2019.” Furthermore, the report noted that information from
the website Etsy, “showed a transaction on February 18, 2019, for $79.00.”
The case record therefore establishes that appellant earned monies from her selfemployment in her own business. However, she did not report such earnings on the forms
submitted to OWCP, which covered the periods November 19, 2016 through January 6, 2017 and
June 24, 2017 through June 7, 2019.
As noted above, an employee can only be subjected to the forfeiture penalty provision of
5 U.S.C. § 8106(b) if he or she knowingly failed to report employment or earnings, and the term
knowingly is defined within OWCP’s regulations as with knowledge, consciously, willfully, or
intentionally.10 Regarding whether appellant knowingly failed to report earnings from outside her
federal employment, the Board notes that the language on the CA-7 forms instructed her to report
all earnings, whether from salaries, self-employment, or sales commissions. The Board finds that
the plain language on the CA-7 forms was sufficient to put her on notice that she was required to
report all earnings outside her federal employment. 11

10

See supra notes 8 through 10.

11

T.G., Docket No. 16-1379 (issued August 4, 2017); K.Z., Docket No. 12-0784 (issued August 27, 2012).

5

The explicit language of the CA-7 forms advised appellant that the nature of her selfemployment work selling crafts and sweets would require her to report such employment activities
on the forms. Appellant’s signing of the strongly-worded certification clauses on the CA-7 forms
further shows that she was aware of the materiality of her failure to report her employment. As
the CA-7 forms signed by appellant informed her that she must report self-employment, this
evidence is persuasive evidence that she knowingly failed to report earnings and employment
information. 12
Under these circumstances, the Board concludes that appellant “knowingly” omitted her
earnings under section 8106(b)(2) of FECA by failing to report her employment activities and
earnings in self-employment on the applicable CA-7 forms covering the periods November 21,
2016 through January 6, 2017 and June 24, 2017 through June 7, 2019. Accordingly, the Board
finds that OWCP properly determined that she forfeited her right to compensation for the periods
November 19, 2016 through January 6, 2017 and June 24, 2017 through June 7, 2019.
The Board further finds, however, that OWCP improperly determined that appellant
forfeited her right to compensation for the period January 7 through June 23, 2017.
The case record does not contain CA-7 forms or any other type of form requiring the
reporting of earnings/employment activity covering the period January 7 through June 23, 2017.
As the case record does not establish made omissions or misrepresentations on such forms
regarding earnings/employment activities for the period January 7 through June 23, 2017, the
Board finds that OWCP improperly found forfeiture of entitlement to compensation for that
period.13
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 14 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.”15
Section 10.529 of OWCP’s implementing regulation provides as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
12

See T.G., id.

In light of the Board’s disposition of Issue 1, Issue 4 is rendered moot with regard to the period January 7 through
June 23, 2017.
13

14

5 U.S.C. § 8102(a).

15

Id. at § 8129(a).

6

omission, concealment, or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, OWCP shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. § 8129
and other relevant statues.”16
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation for the period January 7 through June 23, 2017.
As explained above, OWCP improperly found that appellant forfeited her right to
compensation for the period January 7 through June 23, 2017. Therefore, it did not have a basis
to find an overpayment for that period. The Board, thus, finds that OWCP improperly determined
that appellant received an overpayment of compensation for the period January 7 through
June 23, 2017.
The Board further finds, however, that OWCP properly determined that appellant received
an overpayment of compensation for the periods November 19, 2016 through January 6, 2017 and
June 24, 2017 through June 7, 2019.
As explained above, appellant forfeited her compensation for the periods November 19,
2016 through January 6, 2017 and June 24, 2017 through June 7, 2019. Due to this forfeiture of
compensation, she is not entitled to wage-loss compensation for these periods. Thus, OWCP has
established fact of overpayment for the periods November 19, 2016 through January 6, 2017 and
June 24, 2017 through June 7, 2019.
The case is not in posture for decision, however, with regard to the amount of the
overpayment of compensation for the periods November 19, 2016 through January 6, 2017 and
June 24, 2017 through June 7, 2019. The Board has held that, in overpayment cases, it is essential
that OWCP provide the recipient of compensation with a clear statement showing how the
overpayment was calculated. Accordingly, the case must be remanded to OWCP.17 On remand,
OWCP shall recalculate the amount of the overpayment of compensation for the periods
November 19, 2016 through January 6, 2017 and June 24, 2017 through June 7, 2019 and issue a
new preliminary overpayment determination. Following this and other such further development
as deemed necessary, OWCP shall issue a de novo decision.18

16

20 C.F.R. § 10.529.

17

See L.D., Docket No. 21-0447 (issued September 28, 2021); S.H., Docket No. 20-1189 (issued January 27, 2021).

In light of the Board’s disposition of Issue 2, Issue 3 regarding fault is rendered moot only with regard to the
period January 7 through June 23, 2017, and Issue 5 regarding the denial of a prerecoupment hearing is rendered moot.
18

7

LEGAL PRECEDENT -- ISSUE 3
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. 19 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.”20 No waiver of payment is possible if the claimant is not
“without fault” in helping to create the overpayment.21
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 provides 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….”22
Section 10.433(c) of OWCP’s regulations provides:
“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.”23
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly found appellant at fault in the creation of the
overpayment for the periods November 19, 2016 through January 6, 2017 and June 24, 2017
through June 7, 2019, thereby precluding waiver of recovery of the overpayment.
19

5 U.S.C. § 8129(a).

20

Id. at § 8129(b).

21

C.Y., Docket No. 18-0263 (issued September 14, 2018); Robert W. O’Brien, 36 ECAB 541, 547 (1985).

22

20 C.F.R. § 10.433(a).

23

Id. at § 10.433(c).

8

Appellant failed to provide information that she knew or should have known to be material
on CA-7 forms covering the periods November 19, 2016 through January 6, 2017 and June 24,
2017 through June 7, 2019. As discussed above, the record supports that appellant had earnings
and employment activity when she was self-employed with her own business for these periods
covered by CA-7 forms signed by her, but she failed to report the relevant earnings/employment
activities on these forms.
The explicit language of the CA-7 forms demonstrates that appellant knew or should have
known that the nature of her self-employment would require her to report such employment
activities and earnings on the forms. Since appellant had unreported earnings/employment activity
during the periods November 19, 2016 through January 6, 2017 and June 24, 2017 through June 7,
2019, she knowingly failed to furnish this material information to OWCP. By signing these forms,
she is deemed to have acknowledged her duty to fill out the forms properly, including the duty to
report any employment, self-employment, or involvement in a business enterprise. As appellant
represented that she had no earnings from employment during the covered periods, she failed to
furnish information that she knew or should have known to be material to OWCP. 24 As she is at
fault in the creation of the overpayment of compensation received during the periods
November 19, 2016 through January 6, 2017 and June 24, 2017 through June 7, 2019, it is not
subject to waiver of recovery.
LEGAL PRECEDENT -- ISSUE 4
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP representative, provides in pertinent part: “Before review under section 8128(a) of this title,
a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim before a
representative of the Secretary.”25 As section 8124(b)(1) is unequivocal in setting forth the time
limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless
the request is made with in the requisite 30 days. 26 The date of filing is fixed by postmark or other
carrier’s date marking.27
The Board has held that OWCP, in its broad discretionary authority in the administration of
FECA, has the power to hold hearings in certain circumstances where no legal provision was made
for such hearings and that OWCP must exercise this discretionary authority in deciding whether to
grant a hearing.28 Specifically, the Board has held that OWCP has the discretion to grant or deny a
hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to FECA which provided the right to a hearing, 29 when the request is made after the
24

A.T., Docket No. 17-0953 (issued December 20, 2017); Harold F. Franklin, 57 ECAB 387 (2006).

25

5 U.S.C. § 8124(b)(1).

26

C.K., Docket No. 18-0607 (issued October 18, 2018); Ella M. Garner, 36 ECAB 238, 241-42 (1984).

27

See 20 C.F.R. § 10.616(a).

28

D.T., Docket No. 18-0871 (issued February 11, 2019); Henry Moreno, 39 ECAB 475, 482 (1988).

29

T.R., Docket No. 18-1272 (issued February 15, 2019); Rudolph Bermann, 26 ECAB 354, 360 (1975).

9

30-day period for requesting a hearing, 30 when the request is for a second hearing on the same issue, 31
and when the request is made after a reconsideration request was previously submitted. 32 In these
instances, OWCP will determine whether a discretionary hearing should be granted or, if not, will
so advise the claimant with reasons.33
ANALYSIS -- ISSUE 4
The Board finds that OWCP properly denied appellant’s request for a hearing regarding its
forfeiture decision for the periods November 19, 2016 through January 6, 2017 and June 24, 2017
through June 7, 2019 under section 8124 of FECA.
In the present case, appellant’s December 18, 2020 hearing request was made more than 30
days after the date of issuance of OWCP’s November 4, 2020 decision regarding forfeiture and, thus,
she was not entitled to a hearing as a matter of right. She requested such a hearing before an OWCP
hearing representative in a letter postmarked December 18, 2020. OWCP properly found in its
January 19, 2021 decision that appellant was not entitled to a hearing as a matter of right because
her December 18, 2020 hearing request was not made within 30 days of OWCP’s November 4, 2020
decision. While it also has the discretionary power to grant a hearing when a claimant is not entitled
to a hearing as a matter of right, OWCP, in its January 19, 2021 decision, properly exercised its
discretion by indicating that it had carefully considered her request and had determined that the
forfeiture issue could equally well be addressed by requesting reconsideration and submitting
additional medical evidence. The Board has held that as the only limitation on OWCP’s authority is
reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deduction from established facts. 34 In the present case, the evidence of record does not indicate that
OWCP committed any act in connection with its denial of appellant’s hearing request which could
be found to be an abuse of discretion.
CONCLUSION
The Board finds that OWCP properly determined that appellant forfeited her right to
compensation for the periods November 29, 2016 through January 6, 2017 and June 24, 2017
through June 7, 2019, pursuant to § 8106(b)(2), because she knowingly failed to report her selfemployment activities and earnings. However, OWCP improperly determined that she forfeited
her right to compensation for the period January 7 through June 23, 2017. The Board also finds
that OWCP improperly determined that she received an overpayment of compensation for the
30

See C.K, supra note 33; Herbert C. Holley, 33 ECAB 140, 142 (1981).

31

See T.R., supra note 36; Johnny S. Henderson, 34 ECAB 216, 219 (1982).

32

R.H., Docket No. 07-1658 (issued December 17, 2007); S.J., Docket No. 07-1037 (issued September 12, 2007).
Section 10.616(a) of OWCP’s regulations provides that the cla imant seeking a hearing must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision. 20 C.F.R. § 10.616(a).
33

See C.K, supra note 33.

34

A.M., Docket No. 21-0256 (issued July 22, 2021); Daniel J. Perea, 42 ECAB 214, 221 (1990).

10

period January 7 through June 23, 2017. OWCP properly determined that she received an
overpayment of compensation for the periods November 29, 2016 through January 6, 2017 and
June 24, 2017 through June 7, 2019; however, the case is not in posture for decision with regard
to the amount of the overpayment for the periods November 29, 2016 through January 6, 2017 and
June 24, 2017 through June 7, 2019. The Board further finds that OWCP properly found appellant
at fault in the creation of the overpayment for the periods November 29, 2016 through January 6,
2017 and June 24, 2017 through June 7, 2019, thereby precluding waiver of recovery of the
overpayment. The Board also finds that OWCP properly denied her request for a hearing under
section 8124 of FECA with regard to the periods November 29, 2016 through January 6, 2017 and
June 24, 2017 through June 7, 2019.
ORDER
IT IS HEREBY ORDERED THAT the November 4, 2020 forfeiture decision of the
Office of Workers’ Compensation Programs is affirmed in part and reversed in part. The
December 9, 2020 final overpayment determination of the Office of Workers’ Compensation
Programs is reversed in part, affirmed in part, and set aside in part. The January 19, 2021 decision
of the Office of Workers’ Compensation Programs regarding denial of a forfeiture hearing is
affirmed in part and set aside in part as moot. The January 19, 2021 decision of the Office of
Workers’ Compensation Programs regarding denial of a prerecoupment hearing is set aside as
moot.
Issued: January 14, 2022
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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. IMMIGRATION & CUSTOM
ENFORCEMENT, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-238
Issued: April 18, 2007

Case Submitted on the Record

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

JURISDICTION
On November 6, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 5, 2006 which denied 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 has established that he sustained an injury in the
performance of duty.
FACTUAL HISTORY
On April 21, 2005 appellant, then a 53-year-old, program analyst, filed an occupational
disease claim alleging that he has had a persistent cough and throat irritation since November 12,
2004 or earlier. He alleges that his condition was caused by the dirty work conditions at his
place of employment. Appellant has been at this employment location since March 1, 2004. He

also submitted a supporting statement in connection with his claim wherein he described dust
and mice droppings to be present “everywhere” at the worksite.
Appellant submitted medical documents in support of his claim. In a March 18, 2005
pulmonary consultation report, Dr. Timothy Bayly, Board-certified in internal medicine,
discussed appellant’s work history stating that “there is nothing obvious that is an offending
agent.” In the report, Dr. Bayly diagnosed chronic cough and stated that the etiology was “to be
determined.” In a March 23, 2005 unsigned computerized tomography (CT) scan report,
Dr. Daniel Overdeck, Board-certified in diagnostic radiology, opined that appellant had a
negative CT of the chest. In a December 7, 2005 letter, Dr. Bayly, opined that appellant’s
shortness of breath was due to offending agents in the building which may be dust, animal
dander, oviduct proteins and fungal elements, but not limited to just those listed.
In an April 6, 2005 email from Z.G. “Doc” Kosinski, Jr., of the employing establishment,
to James Geddes, Mr. Kosinski stated that there was no obvious identifiable link between
appellant’s alleged condition and his working space. Mr. Kosinski also stated that there were no
other complaints from individuals about the building making them sick.
In an April 14, 2006 letter, the Office requested additional information from appellant’s
employer.
In an April 18, 2006 letter, the Office requested additional factual information from
appellant. He did not respond.
In a May 12, 2006 letter, the employing establishment responded to the Office’s letter
and controverted appellant’s claim.
By decision dated September 5, 2006, the Office denied appellant’s claim. It found that
the evidence was insufficient to establish that the events occurred as alleged. The Office also
found that there was no medical evidence that provided a diagnosis related to appellant’s federal
employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
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.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

2

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
ANALYSIS
Appellant alleged that his medical condition was causally related to factors of his federal
employment specifically his work environment. The Board finds that he has submitted
insufficient medical evidence to establish that his alleged sick building syndromes were caused
or aggravated by his federal employment.
The Board notes initially that the employer has disputed appellant’s allegations regarding
a dirty work site and sick building syndrome. Appellant’s allegations in and of themselves are
general in nature and are not sufficient to establish a prima facie claim. Furthermore, the
medical evidence submitted is insufficient to establish that appellant has sustained an injury.
The medical evidence of record submitted by appellant includes a December 7, 2005
letter from Dr. Bayly who opined that appellant’s shortness of breath was due to “maybe” a list
of offending agents but did not specifically identify which ones. Dr. Bayly’s opinion is
speculative as he does not identify a definite cause of appellant’s condition. The Board has held
that medical opinions that are speculative or equivocal in character are of diminished probative
value.5 Additionally, Dr. Bayly’s opinion is of diminished probative value because he did not
provide any medical rationale to explain how or why exposure to specific substances at work
caused or aggravated appellant’s claimed condition.
In a March 18, 2005 report, Dr. Bayly diagnosed chronic cough but stated that the cause
of the condition was “to be determined.” Medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.6 Appellant’s burden of proof includes the submission of rationalized
4

Id.

5

Kathy A. Kelley, 55 ECAB 206 (2004).

6

Michael E. Smith, 50 ECAB 313 (1999).

3

medical evidence addressing causal relationship. To establish causal relationship, he must
submit a physician’s report, in which the physician reviews the employment factors identified by
appellant as causing his condition and taking these factors into consideration as well as findings
upon examination, state whether the employment injury caused or aggravated the diagnosed
conditions and present medical rationale in support of his or her opinion.7 There is no medical
rationale in Dr. Bayly’s report.
Appellant argued in his supporting statement that he had been ill since he started working
in his current building due to the building. The Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.8 Neither the fact that the condition became apparent during a
period of employment, nor the belief that the condition was caused or aggravated by employment
factors or incidents is sufficient to establish causal relationship.9
Appellant failed to submit medical evidence to establish causal relationship and,
therefore, has failed to discharge his burden of proof to establish that he sustained a condition
due to factors of his federal employment.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty.

7

Calvin E. King, 51 ECAB 394 (2000).

8

Arthur P. Vliet, 31 ECAB 366 (1979).

9

John F. Glynn, 53 ECAB 562 (2002).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 5, 2006 is affirmed.
Issued: April 18, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF COMMERCE,
U.S. CENSUS BUREAU, Chicago Heights, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1848
Issued: February 12, 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 September 9, 2015 appellant, through counsel, filed a timely appeal from an April 15,
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.
ISSUES
The issues are: (1) whether appellant has more than 21 percent permanent impairment of
the left leg and 2 percent permanent impairment of the left arm; and (2) whether OWCP properly
determined appellant’s pay rate for compensation purposes.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 20, 2010 appellant, then a 58-year-old enumerator, filed a traumatic injury claim
(Form CA-1) alleging that on May 18, 2010 he sustained injuries while in the performance of
duty. On the claim form he alleged that he had fallen over a fence while attempting to avoid an
attack by a dog. The reverse of the claim form indicated that appellant was an intermittent
employee whose work hours varied, and he stopped working on May 18, 2010. An employing
establishment form report indicated that he had begun work on April 26, 2010.
OWCP accepted the claim on August 31, 2010 for left knee sprain, contusions to the face,
neck, and scalp, as well as contusions to the left shoulder and upper arm. Appellant underwent
left knee surgery on January 21, 2011 to repair a torn medical meniscus. In addition, he
underwent left knee total arthroplasty on December 17, 2012.
An OWCP memorandum of telephone call dated August 31, 2010 indicated that the
employing establishment reported that appellant’s employment term would have ended on
July 26, 2010. With respect to his rate of pay, OWCP initially determined on September 14,
2010 that appellant earned $17.50 per hour, at 4.5 hours per day, 4 days a week, for a weekly pay
rate of $315.00. A wage-loss compensation payment covering the period July 3 to August 25,
2010 reflected a pay rate of $315.00 per week.
By letter dated September 23, 2010, the employing establishment reported that appellant
was a temporary, intermittent enumerator. It indicated that he earned $17.50 per hour, working
an average of 4.5 hours per day, 4 days per week. According to the employing establishment,
appellant’s annual pay rate should be based on 150 times the average daily wage, or $227.16 per
week. The record also contains an employing establishment form indicating that appellant had
worked five weeks before he was injured, earning $2,130.65 during that time. In response to a
request for additional information regarding appellant’s work history, the employing
establishment submitted documents indicating that appellant had worked from April 6 to 10,
2009, with earnings of $635.00. For 2010 appellant began work in April and worked intermittent
hours. The compensation payment appellant received for the period August 20 to September 11,
2010 was based on a pay rate of $227.16 per week. There were no additional wage-loss
compensation payments at that time.
In a report dated August 23, 2013, Dr. William Payne, a Board-certified orthopedic
surgeon, indicated in his history that appellant underwent a total left knee arthroplasty on
December 17, 2012. He opined that appellant had a work-related knee injury and the subsequent
meniscus degeneration and tears resulted in degenerative arthritis and the need for additional
surgery.
With respect to a permanent impairment, appellant submitted a March 19, 2014 report
from Dr. Neil Allen, a Board-certified internist. Dr. Allen provided a history and results on
examination for the left shoulder and left knee. As to the left knee, he noted that MCL and LCL
stress tests were negative for joint laxity, with positive Lachman’s grade 2/3. The range of
motion for left knee was 120 degrees flexion, -5 degrees extension, with the right knee at 115
degrees flexion and -5 degrees extension. For a left shoulder permanent impairment, Dr. Allen
opined that under the sixth edition of the American Medical Association, Guides to the

2

Evaluation of Permanent Impairment (hereinafter A.M.A., Guides), appellant had two percent
left arm impairment under Table 15-5. He found that appellant had a grade C impairment of two
percent, with no adjustment based on grade modifiers. For the left knee, Dr. Allen identified
Table 16-3. He reported that the default impairment was 67 percent for a class 4 impairment,
which he adjusted to a grade A impairment of 59 percent based on applicable grade modifiers.
OWCP referred the case to an OWCP medical adviser, Dr. Michael Hellman, for review.
In a report dated August 11, 2014, Dr. Hellman concurred with Dr. Allen’s opinion as to the left
shoulder, finding two percent left arm permanent impairment. As to the left knee, he provided a
different opinion under Table 16-3. Dr. Hellman found that appellant should be rated for a good
result after a total knee replacement, which results in a default impairment of 25 percent. He
then adjusted the permanent impairment to a grade A, for 21 percent left leg permanent
impairment based on the left knee. Dr. Hellman explained that a grade 2 Lachman’s means there
was an endpoint which would not be considered a severe instability. He also indicated that all
total knee arthroplasty procedures remove the anterior cruciate ligament, that the patella and
extensor mechanism are the only anterior buttress for knee stability, and the examination
explained in Dr. Allen’s notes “reasonably sounds like a normal and stable knee.”
According to the medical adviser, he was unable to determine the date of the total knee
arthroplasty, but the date of maximum medical improvement (MMI) was one year after the total
knee arthroplasty surgery.
By decision dated August 28, 2014, OWCP issued a schedule award for 21 percent left
leg, and 2 percent left arm permanent impairment. The period of the award was 66.72 weeks
from January 21, 2012. The pay rate was reported as $227.16 per week.
Appellant, through counsel, requested a hearing before an OWCP hearing representative,
which was held on March 9, 2015. At the hearing appellant questioned the pay rate used by
OWCP.
By decision dated April 15, 2015, an OWCP hearing representative affirmed the
August 28, 2014 schedule award. She found that the weight of the medical evidence was
represented by OWCP’s medical adviser. In addition, the hearing representative found the pay
rate was correct, citing FECA Circular 10-01.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.2 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has

2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).

3

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.4
With respect to knee impairment, the A.M.A., Guides provides a regional grid at
Table 16-3.5 The Class of Diagnosis (CDX) is determined based on specific diagnosis, and then
the default value for the identified CDX is determined. The default value (grade C) may be
adjusted by using grade modifiers for Functional History (GMFH, Table 16-6), Physical
Examination (GMPE, Table 16-7), and Clinical Studies (GMCS, Table 16-8). The adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).6
The regional grid for the shoulder is found at Table 15-5.7 An evaluation method similar
to that used in Table 16-3 is applicable. For the upper extremities, the adjustment formula is
based on Table 15-7 (functional history), Table 15-8 (physical examination), and Table 15-9
(clinical studies).
ANALYSIS -- ISSUE 1
With respect to permanent impairment, the record contains a report dated March 19, 2014
from attending physician, Dr. Allen, and an August 11, 2014 report from Dr. Hellman, an OWCP
medical adviser. Both physicians concur with respect to two percent left arm permanent
impairment based on the left shoulder contusion. Under Table 15-5, a shoulder contusion is a
class 1 impairment with grade C (default) of two percent to the arm.8 Dr. Hellman used a GMFH
of one, and a GMPE of one, with clinical studies not available.9 Applying the formula above,
this would result in a net adjustment of -1 (0 + 0 +-1) to grade B, which is a two percent arm
impairment. The medical adviser used a GMFH of 2, GMPE of 1, and GMCS of 0, resulting in
no adjustment from the grade C impairment, also resulting in two percent impairment. Thus, the
Board finds that the medical evidence establishes two percent permanent impairment of the left
arm, for which appellant received a schedule award.
As to the permanent impairment to the left leg based on the left knee, Dr. Allen and
Dr. Hellman provide differing opinions. In reviewing the reports, the Board finds that
Dr. Hellman, an OWCP medical adviser, provided a clear explanation as to his opinion, while
Dr. Allen did not provide adequate explanation. Both physicians apply Table 16-3, the knee
3

A. George Lampo, 45 ECAB 441 (1994).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.a (January 2010). See also A.W., Docket No. 13-621 (issued July 22, 2013).
5

A.M.A. Guides 509-11, Table 16-3.

6

The net adjustment is up to +2 (grade E) or -2 (grade A). The adjustment is not a simple addition or subtraction
from the default value, as each grade provides its own value.
7

A.M.A., Guides 401-05, Table 15-5.

8

Id. at 401. Grade B and D are also two percent, with grade A one percent and grade E three percent.

9

Table 15-9 indicates that the grade modifier is 0 if there are no available clinical studies.

4

regional grid. For a total knee replacement, a “good” result (class 2, moderate problem) has a
grade C leg impairment of 25 percent. A “fair” result (class 3, severe problem) has a grade C
impairment of 37 percent, and a “poor” result (class 4, very severe problem) is a 67 percent
grade C impairment. Dr. Allen applies the “poor” result, but does not provide any explanation as
to why this is appropriate. A poor result under Table 16-3 is for “poor position, moderate to
severe instability, and/or moderate to severe motion deficit.” The report from Dr. Allen does not
refer to the requirements for a class 4 rating or discuss the examination results. For example, the
range of motion results provided in the March 19, 2014 report do not indicate moderate-to-severe
motion deficit. There is also no discussion explaining why the examination results showed
moderate-to-severe instability or poor position.
On the other hand, Dr. Hellman, the OWCP medical adviser, does explain why he would
place appellant in class 2 for a good result from total knee replacement. He noted the Lachman’s
results and indicated there was no evidence of significant instability. The medical adviser
explained that the findings of Dr. Allen indicated that the knee was in a normal and stable
condition.
The Board finds that the opinion of Dr. Hellman as to the degree of permanent
impairment for the left leg under the A.M.A., Guides is entitled to greater weight in this case.
Dr. Hellman provided medical rationale to support his opinion, while Dr. Allen did not provide
sufficient medical rationale to support an opinion that appellant had a class 4 permanent
impairment under Table 16-3. Dr. Hellman, the medical adviser explained that he would adjust
the grade C impairment using GMFH of 1 (mild problem), GMPE of 1 (mild problem), and
GMCS of 0 (no available clinical studies). This results in a grade A, class 2 permanent
impairment of 21 percent to the left leg.10 The Board thus finds this represents the weight of the
medical evidence in this case.
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.11
There is, however, a remaining issue with respect to MMI. The period covered by a
schedule award commences on the date that the employee reaches MMI from residuals of the
employment injury.12 OWCP’s medical adviser opined that this occurred one year after the total
knee replacement surgery, although he reported he did not know the date of the surgery. OWCP
used the date of January 21, 2012 as MMI, which is one year after the meniscal surgery, not the
total knee replacement surgery. While the record does not contain a surgical report, Dr. Payne
indicated the date of total knee arthroplasty surgery was December 17, 2012. On return of the
case record, OWCP should make proper findings with respect to the date of MMI in this case.
10

A.M.A., Guides 511, Table 16-3.

11

A claim for an increased permanent impairment based on new medical evidence is not a request for
reconsideration and is not subject to reconsideration request time limitations or to the clear evidence of error
standards. R.P., Docket No. 10-1123 (issued January 25, 2011).
12

Albert Valverde, 36 ECAB 233, 237 (1984).

5

LEGAL PRECEDENT -- ISSUE 2
Section 8114(d) of FECA provides:
“Average annual earnings are determined as follows:
(1) If the employee worked in the employment in which he was employed
at the time of his injury during substantially the whole year immediately
preceding the injury and the employment was in a position for which an
annual rate of pay-(A) was fixed, the average annual earnings are the annual rate of
pay; or
(B) was not fixed, the average annual earnings are the product
obtained by multiplying his daily wage for particular employment,
or the average thereof if the daily wage has fluctuated, by 300 if he
was employed on the basis of a 6-day workweek, 280 if employed
on the basis of a 5 1/2-day week, and 260 if employed on the basis
of a 5-day week.
(2) If the employee did not work in employment in which he was
employed at the time of his injury during substantially the whole year
immediately preceding the injury, but the position was one which would
have afforded employment for substantially a whole year, the average
annual earnings are a sum equal to the average annual earnings of an
employee of the same class working substantially the whole immediately
preceding year in the same or similar employment by the United States in
the same or neighboring place, as determined under paragraph (1) of this
subsection.
(3) If either of the foregoing methods of determining the average annual
earnings cannot be applied reasonably and fairly, the average annual
earnings are a sum that reasonably represents the annual earning capacity
of the injured employee in the employment in which he was working at
the time of the injury having regard to the previous earnings of the
employee in federal employment, and of other employees of the United
States in the same or most similar employment in the same or neighboring
location, other previous employment of the employee, or other relevant
factors. However, the average annual earnings may not be less than 150
times the average daily wage the employee earned in the employment
during the days employed within one year immediately preceding his
injury.”
Sections 2.900.4 and 2.900.12 of OWCP procedures provide that, when computing
compensation for census workers, when disability did not exceed 90 days, compensation should
be paid on a daily basis according to section 8114(c). For enumerators who ordinarily worked
6

4.5 hours a day, 4 days a week, where disability extended beyond 90 days and the claimant had
similar employment during the years prior to the injury, compensation should be paid in
accordance with section 8114(d)(1) and (2). Otherwise, it should be based on a weekly basis
using the following formula: 150 times the actual daily wage divided by 52. The actual daily
wage should be determined by multiplying the hourly pay rate by 4.5 hours.13
ANALYSIS -- ISSUE 2
Appellant raised the issue of pay rate at the March 9, 2015 hearing. The pay rate for
compensation purposes is determined under 5 U.S.C. § 8114(d). As noted above, 5 U.S.C.
§ 8114(d)(1) applies if the employee worked in the position during substantially the whole year
prior to the injury. That is not applicable in this case, as appellant had only worked since late
April 2010 and the injury occurred on May 18, 2010. Moreover, 8114(d)(2) is not applicable, as
the position would not have afforded employment for substantially a whole year. The employing
establishment indicated that appellant was a temporary employee whose employment would
have ended on July 26, 2015.
Since neither 5 U.S.C. § 8114(d)(1) nor (2) would apply, FECA Circular 10-01 indicates
that the pay rate is determined by the formula noted in 5 U.S.C. § 8114(d)(3). The hourly wage
is multiplied by 4.5 to determine the daily wage, then the daily wage multiplied by 150, and the
weekly wage calculated by dividing by 52. Using the information provided by the employing
establishment of $17.50 per hour, this results in a daily wage of $78.75. The daily wage
multiplied by 150 is $11,812.50, and divided by 52 results in a pay rate of $227.16 per week.
Based on the evidence of record, the Board finds that OWCP properly determined appellant’s
pay rate in this case.
CONCLUSION
The Board finds the probative evidence does not establish more than 21 percent left leg
permanent impairment and 2 percent left arm permanent impairment. As to the date of MMI,
additional findings are required. The Board further finds that OWCP properly determined
appellant’s pay rate for compensation purposes.

13

Federal (FECA) Procedure Manual, supra note 4 at 2.901.10 (February 2013); see sections 2.900.4.c and
2.900.12 (March 2011); see also 5 U.S.C. §§ 8114(c), 8114(d)(1).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 15, 2015 is affirmed with respect to the degree of
permanent impairment in the left leg and left arm, and with respect to pay rate. It is set aside
with respect to the date of MMI and remanded for further development.
Issued: February 12, 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

8