United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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DEPARTMENT OF LABOR, MINE SAFETY & )
HEALTH ADMINISTRATION, Whitesburg, KY, )
Employer
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__________________________________________ )
W.C., Appellant

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

Docket No. 09-1435
Issued: April 19, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 20, 2009 appellant filed a timely appeal from the July 18, 2008 merit decision of
the Office of Workers’ Compensation Programs terminating his compensation and a
February 27, 2009 decision denying his request for further merit review of his claim. Pursuant to
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 the Office properly terminated appellant’s compensation
effective July 18, 2008 on the grounds that he refused an offer of suitable work; and (2) whether
the Office properly denied appellant’s request for further review of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
The Office accepted that on February 8, 2007 appellant, then a 58-year-old mine
inspector, sustained a tear of the medial meniscus of his left knee due to a fall at work. On
August 31, 2007 appellant underwent a medial meniscectomy and chondroplasty of the

patellofemoral articulation of his left knee. The procedure was authorized by the Office.
Appellant stopped work for various periods and received appropriate disability compensation.
On December 26, 2007 Dr. Keith B. Hall, an attending Board-certified orthopedic
surgeon, stated that appellant reported he could not kneel and his left knee pain was a 4 or 5 out
of a scale of 10. On examination, appellant’s left knee revealed a well-healed arthroscopy, range
of motion from 0 to 120 degrees with patellar crepitus, stability to varus and valgus stress and
discomfort with patellar compression. Quadriceps strength was found to be 5/5, sensation to
light touch was intact and posterior tibial pulse was 2/4. Dr. Hall diagnosed medial meniscal tear
and patellar chondromalacia of the left knee and found that appellant had reached maximum
medical improvement. He stated:
“His pain at this point seems to be limiting his patellofemoral articulation where
he has significant chondromalacia noted during the surgery. I informed him I feel
as though he will most likely continue to have this from now on. At this point, I
will allow him to return to work with restrictions of no kneeling or crawling.”1
On March 10, 2008 the employing establishment offered appellant a full-time position as
a physical science technician.2 The position involved maintaining equipment used in coal mine
inspections and providing advice in support of such inspections. It did not require squatting
below 48 inches or kneeling on the left knee. The majority of the work was performed at fixed
benches or calibration stations and required some standing, stooping and moderate lifting. The
position did not require work in the active areas of coal mines.
In an April 10, 2008 letter, appellant indicated that he was neither accepting nor declining
the job offer but noted that he was off work indefinitely under his physician’s orders. In an
April 10, 2008 note, Dr. Shane McDougal, an attending Board-certified family practitioner,
stated that appellant was “off work indefinitely” secondary to degenerative disc disease of the
lumbar and cervical spines and chronic left knee pain.
In a May 7, 2008 letter, the Office advised appellant of its determination that the physical
science technician position offered by the employing establishment was suitable.3 It informed
appellant that his wage-loss compensation would be terminated if he did not accept the position
or provide good cause for not doing so within 30 days of the date of the letter.
On June 6, 2008 appellant advised an Office claims examiner by telephone that he was
not accepting the physical science technician position because he had been approved to receive
benefits from the Social Security Administration. On June 25, 2008 Dr. McDougal stated that
1

In a December 26, 2007 work restrictions form, Dr. Hall indicated that appellant could work for eight hours a
day with no kneeling or squatting and could only work in coal seams which were 48 inches or higher.
2

It appears that beginning December 17, 2007 appellant returned to light-duty work for the employing
establishment on a temporary basis and the March 14, 2008 job offer was intended to provide him with permanent
work.
3

On May 6, 2008 the Office reconfirmed with the employing establishment that the offered position was still
available to appellant.

2

appellant was still under his care and had not been released to return to work. On June 27, 2008
he advised that appellant could not perform his job duties due to his left knee injury and multiple
other arthralgias. On May 7, 2008 Dr. McDougal diagnosed a severe cervical strain and the
findings of May 29, 2008 diagnostic testing of appellant’s cervical spine showed degenerative
changes between C2-3 and C5-6.4
In a June 17, 2008 letter, the Office advised appellant that his reasons for not accepting
the position offered by the employing establishment were unjustified. It notified him that his
compensation would be terminated if he did not accept the position within 15 days of the date of
the letter.5
In a July 18, 2008 decision, the Office terminated appellant’s compensation effective that
day on the grounds that he refused an offer of suitable work.
On January 27, 2009 appellant requested reconsideration of his claim. In a January 24,
2009 letter, he contended that the Office improperly denied his schedule award claim and
reasserted that his physical condition prevented him from performing the physical science
technician position.6
Appellant submitted an August 31, 2007 surgery report and a
November 12, 2007 physical therapy note which had previously been submitted and considered
by the Office. He also submitted a January 12, 2009 schedule award claim and various
administrative documents regarding requests for medical services.
In a February 27, 2009 decision, the Office denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who-- ... (2) refuses or neglects to work after suitable work
is offered ... is not entitled to compensation.”7 However, to justify such termination, the Office
must show that the work offered was suitable.8 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.9

4

Other medical notes from this period showed that appellant also complained of chest and left arm pain.

5

Appellant did not accept the position within the allotted time period.

6

In a January 16, 2009 informational letter, the Office advised appellant that the July 18, 2008 termination of his
compensation precluded his receipt of schedule award compensation.
7

5 U.S.C. § 8106(c)(2).

8

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

9

20 C.F.R. § 10.517; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

3

ANALYSIS -- ISSUE 1
The Office accepted that on February 8, 2007 appellant sustained a tear of the medial
meniscus of his left knee due to a fall at work. On August 31, 2007 appellant underwent a
medial meniscectomy and chondroplasty of the patellofemoral articulation of his left knee. In a
July 18, 2008 decision, the Office terminated his compensation on the grounds that he refused an
offer of suitable work.
The evidence of record establishes that appellant is capable of performing the physical
science technician position offered by the employing establishment and determined to be suitable
by the Office. The position involves maintaining equipment used in coal mine inspections and
providing advice in support of such inspections. It does not require crawling, kneeling or
squatting. The majority of the work is performed at fixed benches or calibration stations and the
position requires some standing, stooping and moderate lifting. The record does not reveal that
the physical science technician position was temporary or seasonal in nature.10
In finding that appellant is physically capable of performing the physical science
technician position, the Office properly relied on the opinion of Dr. Hall, an attending Boardcertified orthopedic surgeon. In December 26, 2007 reports, Dr. Hall determined that appellant
could perform work on a full-time basis with restrictions from kneeling, crawling, squatting and
working in coal seams which were less than 48 inches high.11
The Board finds that Dr. Hall’s work restrictions would allow appellant to perform the
duties of the physical science technician position. Moreover, there is no evidence that appellant
was not vocationally able to perform the physical science technician position. He had previously
worked as a mine inspector and the offered position involved working with equipment used in
mine inspections. The Board finds that the Office established that the physical science
technician position offered by the employing establishment was suitable for appellant’s residuals
and vocational abilities.
As noted, once the Office has established that a particular position is suitable, an
employee who refuses or neglects to work after suitable work has been offered to him has the
burden of showing that such refusal to work was justified. The Board has carefully reviewed the
evidence and argument submitted by appellant in support of his refusal of the physical science
technician position. Appellant did not support his refusal of the position. On April 10, 2008
Dr. McDougal, an attending Board-certified family practitioner, stated that appellant was “off
work indefinitely” secondary to degenerative disc disease of the lumbar and cervical spines and
chronic left knee pain. On June 27, 2008 he indicated that appellant could not perform his job
duties due to his left knee injury and multiple other arthralgias. These reports, however, are of
limited probative value on the relevant issue of the present case in that Dr. McDougal did not
10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Capacity, Chapter 2.814.4b (July 1997).
11

Determining Wage-Earning

Dr. Hall performed a physical examination at this time noting that appellant’s left knee revealed a well-healed
arthroscopy, range of motion from 0 to 120 degrees with patellar crepitus, stability to varus and valgus stress and
discomfort with patellar compression. Quadriceps strength was found to be 5/5, sensation to light touch was intact
and posterior tibial pulse was 2/4.

4

provide adequate medical rationale in support of his stated opinion.12 Dr. McDougal did not
describe appellant’s medical condition in any detail or explain how his particular medical
problems rendered him unable to perform the duties of the physical science technician position.
He did not address the findings by Dr. Hall or the physician’s opinion that appellant was capable
of modified duty as offered. On appeal appellant argued that the fact that he was accepted for
Social Security Administration benefits showed that he could not work. However, the Board has
long held that entitlement to benefits under statutes administered by other federal agencies does not
establish disability or entitlement to benefits under the Act.13
For these reasons, the Office properly terminated appellant’s compensation effective
July 18, 2008 on the grounds that he refused an offer of suitable work.14
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,15 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.16 To be entitled to
a merit review of an Office 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.17 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.18 The Board has held that the submission of
evidence or argument which repeats or duplicates evidence or argument already in the case
record19 and the submission of evidence or argument which does not address the particular issue
involved does not constitute a basis for reopening a case.20
12

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value).
13

See Donald Johnson, 44 ECAB 540, 551 (1993). On appeal appellant also argued that the fact that he was in pain
and under a physician’s care showed that he could not perform the offered position. However, appellant’s mere claims
in this regard would not serve as a substitute for rationalized medical evidence showing that he could not perform the
position.
14

The Board notes that the Office complied with its procedural requirements prior to terminating appellant’s
compensation, including providing appellant with an opportunity to accept the physical science technician position
after informing him that his reasons for initially refusing the position were not valid; see generally Maggie L.
Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).
15

Under section 8128 of the Act, “[t]he 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).
16

20 C.F.R. § 10.606(b)(2).

17

Id. at § 10.607(a).

18

Id. at § 10.608(b).

19

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

20

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

5

ANALYSIS -- ISSUE 2
On reconsideration, appellant argued that his physical condition prevented him from
performing the physical science technician position. He also submitted an August 31, 2007
surgery report and a November 12, 2007 physical therapy note which had previously been
submitted and considered by the Office. The submission of this argument and evidence would
not require the reopening of appellant’s claim for further review of the merits because the Office
has already considered this argument and evidence.21 Appellant also submitted a January 12,
2009 schedule award claim and various administrative documents regarding requests for medical
services. The submission of these documents would not require the reopening of appellant’s
claim because the documents are not relevant to the main issue of the present case, i.e., whether
the Office properly justified the termination of appellant’s compensation for refusing suitable
work.22 The documents do not relate to appellant’s assertion that he was justified in refusing the
position offered by the employing establishment.
Appellant has not established that the Office improperly denied his request for further
review of the merits of its July 18, 2008 decision under section 8128(a) of the Act, because the
evidence and argument he submitted did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office, or constitute relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
July 18, 2008 on the grounds that he refused an offer of suitable work. The Board further finds
that the Office properly denied appellant’s request for further review of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

21

See supra note 19.

22

See supra note 20.

6

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2009 and July 18, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 19, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grandview, MO, Employer
__________________________________________

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Appearances:
Melford V. McCormick, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1913
Issued: February 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 11, 2007 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs dated September 29, 2006 and June 18, 2007 denying his
claim on the grounds that it was not timely filed. 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’s claim was timely filed pursuant to 5 U.S.C. § 8122(a).
FACTUAL HISTORY
On July 7, 2006 appellant, then a 42-year-old letter carrier, filed an occupational disease
claim (Form CA-2) for a right knee condition which he alleged had worsened. He indicated that
the Office had previously accepted his left knee claim and provided limited-duty positions as a

result.1 Appellant attributed his right knee condition to working on his knees and to years of
carrying mail. He was first aware of his condition and its relation to his federal employment on
August 16, 2002. The Office assigned this file number 112035596.2 The employing
establishment controverted the claim. It asserted that appellant was last exposed to alleged
hazardous employment conditions as a city carrier on November 4, 2002 when he began working
in a limited-duty capacity because of his accepted left knee condition. Appellant’s limited-duty
work was described as being a “sedentary position with limited walking and standing.” There is
no indication that he stopped work for his right knee condition since being placed on limited
duty.
On July 27, 2006 the Office wrote to appellant and the employing establishment to obtain
factual and medical evidence regarding his claimed right knee condition. In response, the Office
received factual statements from the employing establishment dated September 3, 2003 and
August 3, 2006, offers of modified assignment (limited duty) dated August 27, 2003, March 8
and October 1, 2004 and December 27, 2005; a January 31, 2006 family medical leave act form;
an undated and unsigned duty status report; a July 27, 2006 operative report for a left knee
arthroplasty and an August 11, 2006 postsurgery status report. Each limited-duty position
appellant performed was due to his accepted left knee injury. The record reflects that appellant’s
job duties were predominately sedentary in nature, with minimal (30 minutes or less per hour)
walking, standing and climbing activities.
In a February 25, 2003 medical report, Dr. Thomas E. Scott, a Board-certified internist
specializing in rheumatology, indicated that appellant had some minor problems with his right
knee in the past and that the right knee demonstrated crepitus without warmth or swelling.
Dr. Teresa Marshall, a Board-certified family practitioner, indicated that appellant had been seen
since October 2001 for severe osteoarthritis of the knees and primarily addressed his left knee
condition. In an undated letter, she indicated that on appellant’s June 30, 2003 examination, his
right knee began to show signs of arthritis and had mild crepitance with flexion and extension.
She opined that appellant’s knee conditions were aggravated by his job duties of being on his
feet constantly. In a July 18, 2006 disability slip, Dr. Marshall diagnosed severe osteoarthritis -knees. In an August 15, 2006 letter, she indicated that appellant’s symptoms were most severe in
the left knee. Dr. Marshall indicated that since 2003 appellant had physical examination changes
of crepitances in the right knee. She stated that it was obvious that the arthritic process started
prior to that time and opined that it was likely several years prior to 2003. Dr. Marshall opined
that the arthritis was due to years of mail carrying with constant wear and tear on the knees. She
indicated that appellant required bilateral total knee replacements and indicated that he
successfully completed his left knee replacement surgery.

1

On July 28, 2003 appellant filed a claim (File No. 112017889) for osteoarthritis in the left knee on or prior to
August 16, 2002 due to years of carrying the mail. His claim was accepted for aggravation of osteoarthritis in the
left knee. Appellant has not appealed any of the decisions under File No. 112017889; thus, the Board will not
review any of the decisions pertaining to the accepted left knee condition.
2

The Office associated the current claim (File No. 112035596) with the claim for the accepted left knee condition
(File No. 112017889) under the master file, File No. 112017889.

2

By decision dated September 29, 2006, the Office denied appellant’s claim as untimely
filed.
On October 11, 2006 appellant requested an oral hearing which was held on May 8, 2007.
At the hearing, he testified that he worked as a letter carrier from 1992 until 2002 when appellant
was placed on limited duty due to his left knee injury. Appellant stated that both of his knee
problems started in 2001 with the pain in the left knee worse than the right. He was advised that
bilateral knee replacements would ultimately be needed and he underwent a left knee
arthroplasty on July 27, 2006. Appellant stated that he continued to work with pain in his right
knee for several years and would like to have his right knee replaced. He indicated that his
doctors advised him that his work as a letter carrier contributed to the arthritis in his knees.
Appellant did not file a claim for his right knee condition until July 2006 as he assumed the right
knee would be accepted by the Office as it had accepted his left knee condition. He filed the
claim for his right knee when the pain became worse. Copies of work excuse/disability slips
from Dr. Marshall dated July 18 and 26, 2006 were submitted together with a June 29, 2005
magnetic resonance imaging (MRI) scan of the left and right knee.
By decision dated June 18, 2007, an Office hearing representative affirmed the
September 29, 2006 decision. The hearing representative found that appellant had not timely
filed his claim.
LEGAL PRECEDENT
In cases of injury on or after September 7, 1974, section 8122(a) provides that a claim for
disability or death must be filed within three years after the injury or death.3 The Board has held
that, if an employee continues to be exposed to injurious working conditions after becoming
reasonably aware of the causal relationship between the employment and the compensable
disability, the time limitation begins to run on the date of last exposure.4
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his federal employment, such awareness is competent to start the limitation period
even though the employee does not know the precise nature of the impairment or whether the
ultimate result of such affect would be temporary or permanent.5 Where the employee continues
in the same employment after he or she reasonably should have been aware that he or she has a
condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.6 The

3

5 U.S.C. § 8122(a) (2000).

4

See Paul Fierstein, 51 ECAB 381 (2000).

5

Larry E. Young, 52 ECAB 264 (2001).

6

Id.

3

requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.7
ANALYSIS
In this case, the Office found that appellant did not file a timely claim for compensation
for his right knee condition. It determined that he was last exposed to the employment
conditions which allegedly caused his right knee condition on November 4, 2002 the date he
started working a limited-duty position as a result of an accepted left knee condition. Since
appellant did not file a claim until July 7, 2006, the Office concluded that his claim was not
timely filed within the three-year time limitation.
The Board, however, finds that appellant’s claim was timely filed. The Office found that
the date of injury was November 4, 2002 when appellant started working limited duty as a result
of his accepted left knee condition. The Board finds, however, that the Office’s determination is
in error. While the record reflects that appellant began limited duty on November 4, 2002
because of his accepted left knee condition, there is no indication that his limited-duty work
eliminated his occupational exposure to walking, standing, climbing or other activities which
involved use of appellant’s right knee. The record indicates that his limited-duty position
included, 30 minutes or less per hour, activities such as walking, standing and climbing.
Appellant’s July 7, 2006 occupational disease claim attributed his right knee condition to work
which required him to be on his knees. Moreover, the employing establishment acknowledged
that appellant’s limited-duty work had limited walking and standing duties which would
necessarily involve continued use of his right knee. While appellant’s duties diminished the use
of his knee he still had exposure to these work factors. He continued to be exposed to walking,
standing and climbing activities, involving use of his right knee when he filed his claim on
July 7, 2006. The impact of such work on his right knee condition raises a question to be
resolved by probative medical evidence. The Board finds that appellant’s claim was timely
filed.8
The Board finds that appellant’s claim was timely filed under 5 U.S.C. § 8122 and the
Office’s decisions of June 18, 2007 and September 29, 2006 will be reversed. The case is
remanded for further action on the merits of his claim to be followed by a de novo decision.

7

Debra Young Bruce, 52 ECAB 315 (2001).

8

See Gerald A. Preston, 57 ECAB ___ (Docket No. 05-1198, December 15, 2005).

4

CONCLUSION
The Board finds that appellant timely filed a claim for benefits.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2007 and September 29, 2006
decisions of the Office of Workers’ Compensation Programs are reversed. The case is remanded
for further action consistent with this decision of the Board.
Issued: February 22, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.P., Appellant
and
U.S. POSTAL SERVICE, ROBERTO
CLEMENTE POST OFFICE, Chicago, IL,
Employer
__________________________________________

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

Docket No. 18-0173
Issued: August 21, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 30, 2017 appellant filed a timely appeal from May 3 and August 25, 2017 merit
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.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted factors of his federal employment.
FACTUAL HISTORY
On July 27, 2015 appellant, then a 55-year-old postal clerk, filed an occupational disease
claim (Form CA-2) alleging that he sustained bilateral rotator cuff tears and bilateral severe
1

5 U.S.C. § 8101 et seq.

arthritis of the hands as a result of repetitive physical work duties. He first became aware of his
condition on June 22, 2015 and of its relationship to factors of his federal employment on
July 2, 2015. Appellant stopped work on July 23, 2015 and he did not return.
In a statement dated July 27, 2015, appellant detailed the duties of his federal employment
position as a postal clerk that he alleged had caused his conditions. He stated that he worked as a
morning distribution clerk to assist in unloading mail trucks. Unloading mail trucks consisted of
pulling and pushing large parcels, pallets, flats, and letters. Appellant would toss parcels into a
carrier’s gurney, separate letters and flats, and prepare letters, flats, and parcels to be distributed.
He noted that, on July 21, 2015, he was ordered to distribute tubs of flats and place them into
carrier cases, which he did, and afterwards his hands were swollen and his shoulders hurt. The
next day, finding that his hands were still swollen and his shoulders still hurt, appellant made an
appointment with a physician.
In a note dated July 23, 2015, Dr. Daniel Newman, a Board-certified orthopedic surgeon,
diagnosed bilateral rotator cuff tears and severe bilateral hand arthritis. He concluded that
appellant was totally disabled as he was unable to work at that time.
In a development letter dated August 25, 2015, OWCP informed appellant that he had not
submitted sufficient factual and medical documentation to establish his claim. It requested that he
submit a physician’s opinion as to how the employment activities he described had caused,
contributed to, or aggravated his diagnosed conditions. OWCP afforded appellant 30 days to
submit additional evidence.
On August 31, 2015 appellant responded to OWCP by submitting employment records of
his duties and a handwritten record noting the amount of work he had performed between June 22
and July 21, 2015.
In a diagnostic report dated July 23, 2015, Dr. Newman examined the results of x-rays of
appellant’s hands and shoulders. He noted significant degenerative arthritis of the hands,
particularly at the carpometacarpal joint of the thumbs and the third metacarpophalangeal joints.
Dr. Newman further noted early degenerative changes of the shoulders with some narrowing of
the glenohumeral space with early spur formation.
In a letter dated July 23, 2015, Dr. Newman noted that appellant had, at one point, been
placed on permanent restrictions at work, but had subsequently returned to full duty. He indicated
that most of what appellant did at work was sort mail, which was a repetitive motion using his
arms in front of him, frequently at shoulder level. Dr. Newman also noted that appellant was
required to lift heavy objects at work. He examined appellant and diagnosed severe arthritis in his
hands and early degenerative arthritis of his shoulders. Dr. Newman recommended surgery for
appellant’s left shoulder and hands.
By decision dated October 7, 2015, OWCP denied appellant’s claim finding that he had
not submitted sufficient evidence to establish causal relationship between his diagnosed conditions
and the accepted factors of his federal employment.
In a report dated September 17, 2015, Dr. Newman noted that appellant was awaiting
approval for surgery and that there had been no change in his condition. He diagnosed bilateral
2

shoulder impingement syndrome, noting that an arthroscopic procedure may reveal a rotator cuff
tear, which are frequently associated with impingement.
In a November 12, 2015 letter, Dr. Newman noted that appellant had been his patient for
many years and was recently treated for bilateral shoulder pain. He noted that appellant had
recently undergone a surgical procedure on his left shoulder to relieve symptoms of impingement
and that he would likely require the same surgery on his right shoulder. Dr. Newman opined that
“the impingement problems that we have been treating [are] directly related to [appellant’s]
work[,] which requires repetitive pushing and pulling, reaching forward, and reaching above
shoulder levels when sorting mail.” He noted that appellant had not sustained other injuries to the
shoulders.
On November 25, 2015 appellant requested reconsideration.
By decision dated April 28, 2016, OWCP denied to modification of its October 7, 2015
decision finding that, although Dr. Newman’s November 12, 2015 report contained some support
for causal relationship, he appeared to be repeating the history of injury provided by appellant
instead of providing his own medical reasoning to explain how the conditions of his shoulders and
hands were caused or aggravated by the accepted factors of appellant’s federal employment.
Dr. Newman responded to OWCP’s decision, in a letter dated May 19, 2016 in which he
reiterated that appellant performed repetitive motion at work, including sorting mail, which
involved working above the shoulder level. He further reiterated that appellant also performed
significant lifting and heavy pushing. Dr. Newman explained that as to the similarity between his
account and appellant’s, it was typical for physicians, when interviewing patients, to take a history
including subjective complaints and the mechanism of injury. He made clear that he had not
copied appellant’s account, but merely reported the same information that he received from
appellant as to the duties of his federal employment.
On June 6, 2016 appellant again requested reconsideration.
By decision dated August 22, 2016, OWCP denied modification of its April 28, 2016
decision finding that Dr. Newman’s May 19, 2016 letter was insufficient to establish appellant’s
claim.
In a letter dated September 12, 2016, Dr. Newman again responded to OWCP’s findings
as to his medical opinion. He noted, “Repetitive motion injuries are well documented and accepted
in the medical literature. It is my opinion that the repetitive motion that was involved with
[appellant’s] job contributed substantially to his current state of ill being.”
By decision dated January 12, 2017, OWCP denied modification of its August 22, 2016
decision finding that because Dr. Newman had not specified the particular factors of employment
in his letter of September 12, 2016, he had not provided a well-rationalized opinion on causal
relationship. It further noted that “ill being” was not a diagnosed condition.
In a letter dated January 30, 2017, appellant enclosed pictures of the stool he sat on for
hours while casing mail, pictures of equipment to be pushed off trucks and around the workroom,

3

cages of parcels to pull and push around the workroom and sort by throwing the parcels into carrier
bins, and trays of mail to be worked by hand.
In a report dated January 24, 2017, Dr. Newman noted that he first saw appellant in July
2015 with complaints regarding his shoulders and hands. At the time, appellant had been placed
in a position where he was doing more sorting of mail in front of him and above shoulder level.
He was also asked to lift and push objects that were quite heavy, a task he had not done before in
his employment. Dr. Newman noted that left shoulder surgery had occurred, but appellant was
still awaiting permission to proceed with right shoulder surgery. He opined that “in July, because
of the change and increased work requirements, [appellant] had a flare up and exacerbation of his
underlying arthritic conditions.” Dr. Newman further opined that appellant’s current condition “is
directly related to the change in activities of July 2015. He has a repetitive motion injury in both
shoulders and both hands with underlying degenerative arthritis.”
Appellant requested reconsideration on February 3, 2017.
By decision dated May 3, 2017, OWCP denied modification of its January 12, 2017
decision finding that Dr. Newman’s January 24, 2017 report was insufficient to establish
appellant’s claim.
In a report dated May 23, 2017, Dr. Newman noted that it was his position that appellant
was treated in June 2015 for shoulder pain and hand pain that was directly related to increased
work duties that began in January of that year. He noted that appellant stopped working in
July 2015 due to failure of conservative treatment and that surgery had been considered.
Dr. Newman opined that he had “an aggravation and exacerbation of an underlying condition
directly related to work activities that has not resolved, therefore his current condition is work
related.” He clarified that his opinion on appellant’s condition was both that his “preexisting”
condition was a result of 31 years of repetitive motion at work and also that in 2015, as a result of
a change in his employment duties, he had experienced an aggravation of the underlying condition.
Appellant requested reconsideration on June 9, 2017.
By decision dated August 25, 2017, OWCP denied modification of its May 3, 2017
decision finding that Dr. Newman’s May 23, 2017 report was insufficient to establish appellant’s
claim.
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,2 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

2
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

4

to the employment injury.3 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.4
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 claimant has the burden of establishing by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere fact
that a disease or condition manifests itself during a period of employment, nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents, is sufficient to
establish a causal relationship.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.7 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 employee.8
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,

3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4

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).
5
A.P., Docket No. 19-0223 (issued July 9, 2019); Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006);
Katherine J. Friday, 47 ECAB 591, 594 (1996).
6

R.B., Docket No. 18-0084 (issued June 24, 2019); P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M.
Mascarenas, 49 ECAB 215, 218 (1997).
7

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

5

the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted factors of his federal employment.
It has been accepted that appellant performed mail handling duties as a distribution clerk
for over 31 years at the time he filed his occupational disease claim in this case. It is also accepted
that he has bilateral shoulder and hand conditions.
In support of his claim appellant submitted numerous medical reports from Dr. Newman.
In notes dated July 23 and September 17, 2015, Dr. Newman diagnosed bilateral rotator cuff tears
and severe bilateral hand arthritis. He concluded that appellant was totally disabled and was unable
to work at that time and would be awaiting surgery. Dr. Newman did not, however, provide an
opinion on causal relationship. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.10 These reports, therefore, are insufficient to establish appellant’s claim.
Appellant submitted a series of additional medical records from Dr. Newman dated
November 12, 2015, May 19 and Sept 12, 2016, and January 24 and May 23, 2017. In each of
these reports Dr. Newman provides an opinion that appellant’s bilateral shoulder and hand
conditions are causally related to the accepted repetitive employment duties. He did not, however,
provide medical rationale to explain how or why the accepted employment duties were sufficient
to have resulted in the diagnosed conditions. The Board has long held that a medical 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 employment factors.11 Dr. Newman
failed to explain the pathophysiologic mechanism by which the accepted employment duties
caused, aggravated, or accelerated appellant’s bilateral hand and shoulder conditions. Without
explaining how the repetitive movements involved in appellant’s employment duties caused or
contributed to the diagnosed conditions, his opinion on causal relationship is of limited probative
value.12 As such, these reports lack the specificity and detail needed to establish that appellant’s
diagnosed conditions are the result of the accepted factors of employment.13

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); P.S.,
Docket No. 19-0549 (issued July 26, 2019).
10

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

12

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
13

T.C., Docket No. 19-0227 (issued July 11, 2019).

6

Finally, appellant submitted diagnostic test results. However, diagnostic studies lack
probative value as they do not address whether the employment incident caused any of the
diagnosed conditions.14
The Board finds that the record lacks rationalized medical evidence establishing causal
relationship between the accepted factors of employment and appellant’s bilateral hand and
shoulder conditions. Such rationalized evidence is especially necessary when, as here, he had
preexisting hand and shoulder conditions.15 The Board therefore finds that appellant has not met
his burden of proof to establish his claim.
Appellant may submit new evidence 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 an injury
causally related to the accepted factors of his federal employment.

14

See M.S., Docket No. 19-0587 (issued July 22, 2019).

15

Supra note 12.

7

ORDER
IT IS HEREBY ORDERED THAT the August 25 and May 3, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 21, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 11-1927
Issued: May 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 23, 2011 appellant timely appealed an April 15, 2011 merit decision of the
Office of Workers’ Compensation Programs (OWCP) concerning 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 found an overpayment of compensation in
the amount of $12,707.67 for the period April 12, 2004 through April 11, 2009 because appellant
received compensation based on an incorrect pay rate; (2) whether OWCP properly denied
waiver of recovery of the overpayment; and (3) whether OWCP properly required repayment at
the rate of $300.00 per compensation period.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 8, 2000 appellant, then a 34-year-old rural carrier associate driver, injured her
back, head, hip, neck and left arm when her postal vehicle slid on ice and hit a tree. OWCP
accepted the claim for dislocation of cervical and thoracic vertebra, herniated discs at C4-5 and
C5-6, cervicalgia and cervical radiculopathy. Appellant stopped work following the injury,
returned to limited duty on April 29, 2000 and worked intermittently thereafter. OWCP accepted
her recurrence of disability claims beginning April 12, 2004. Appellant did not return to work.
OWCP determined that an incorrect pay rate for compensation was used from April 12,
2004 to April 11, 2009, paid appellant compensation based on a weekly pay rate of $266.12.
The record reveals that appellant’s date-of-injury pay rate was $178.95. Computer print-outs and
an overpayment worksheet show that she received $67,294.24 in compensation for the period
April 12, 2004 through April 11, 2009, when she should have received $54,586.57, yielding a
$12,707.67 overpayment in compensation. On April 21, 2009 OWCP issued a preliminary
determination that appellant had received an overpayment of compensation in the amount of
$12,707.67 for the period April 12, 2004 through April 11, 2009, because she was paid at an
incorrect pay rate. It found her without fault and explained that, as she had never returned to full
duty, she should have been paid using the date-of-injury pay rate of $178.95.
Appellant was given 30 days to respond and was provided an overpayment action request
form and an overpayment questionnaire. On April 27, 2007 appellant’s counsel requested a
prerecoupment hearing before an OWCP hearing representative, stating that she disagreed that
the overpayment occurred and requested waiver.
At the hearing, held on August 13, 2009, appellant’s representative argued that appellant
was entitled to the recurrent pay rate because she was a regular employee. Appellant testified
that she was a full-time rural carrier substitute as she was guaranteed work for one day per week
and filled in for regular carries when coverage was needed. She stated that she returned back to
work following her injuries in 2000 and stopped work in 2004. The hearing representative
advised appellant to provide an overpayment financial questionnaire. Appellant submitted a
completed overpayment form. On the form she noted zero dollars of monthly income, that she
supported her husband and provided monthly expenses and assets. Monthly, payments included
$821.88 for rent; $450.00 for food; $150.00 for clothing; $250.00 for miscellaneous expenses;
$475.00 for utilities, $821.88 to Fifth Third Bank,2 $148.00 to VA FCU,3 $19.00 to Chase Bank,4
$782.00 to GMAC,5 $175.00 to Independent Bank,6 $37.51 to Sams Club,7 $321.00 to Capital

2

The amount owed is $111,897.00.

3

The amount owed is $6,060.00.

4

Appellant reported the balance due as $658.00.

5

The outstanding balance on the debt was listed as $38,202.00.

6

The balance due is $6,917.00.

7

The balance due is $288.00.

2

One,8 $20.00 to First Premier,9 $200.00 to Zane Mead,10 $150.00 to Dr. Dan Gole11 and $35.00
to Sam Good.12 Appellant also noted owing $58.02 to Thoracic Cardiovascular, $371.26 to
Cleveland Clinic, $643.83 to Ingham Regional Medical Center, $225.00 to Hayes Green Beach
Hospital, $150.00 to Pennock Hospital and $200.00 to Rolle Chiropractor. Assets include
$116.32 in a checking account, $117.02 in a savings account $9,500.00 in her husband’s stocks
and bonds, and approximately $15,000.00 in personal property and other funds, resulting in a
total of $24,733.32.
By decision dated December 28, 2009, an OWCP hearing representative found that an
overpayment of compensation in the amount of $12,707.67 had been created because appellant
was paid at an incorrect pay rate for the period April 12, 2004 through April 11, 2009. The
hearing representative found that she was not entitled to wavier of the overpayment as she failed
to submit any financial information and evidence of financial hardship. The hearing
representative determined that $300.00 would be deducted from appellant’s continuing
compensation each payment period to repay the overpayment.
On February 10, 2011 the Board issued an order remanding the case to OWCP.13 The
Board found the December 28, 2009 hearing representative’s decision failed to provide clear
reasoning as to how the overpayment was calculated.
On April 15, 2011 an OWCP hearing representative found that an overpayment of
compensation in the amount of $12,707.67 had been created because appellant had been paid at
an incorrect pay rate for the period April 12, 2004 through April 11, 2009. She noted that
appellant worked 15 hours per week in the year prior to her injury with a date-of-injury pay-rate
of $11.93 per hour or $178.95 per week. The hearing representative noted that appellant
returned to modified work on August 12, 2000 and sustained a recurrence of disability on
April 12, 2004. She found that appellant was not entitled to a recurrent pay rate of $266.12 as
she did not return to regular duty following her injury. The hearing representative found that
appellant received an overpayment in the amount of $12,707.67 for the period April 12, 2004 to
April 11, 2009. She found that appellant was not entitled to wavier of recovery of the
overpayment as she failed to submit information regarding her household income on the
overpayment questionnaire or evidence of financial hardship. The hearing representative
determined that $300.00 would be deducted from appellant’s continuing compensation each
payment period to repay the overpayment.

8

The balance due is $381.00.

9

The outstanding balance is $581.00.

10

The balance listed is $6,468.00.

11

Appellant noted that she owed about $6,000.00 to the physician.

12

The balance is $1,378.00.

13

Docket No. 10-719 (issued February 10, 2011).

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA14 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 duty.15 When an overpayment has been made to an individual 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 the individual is entitled.16 FECA provides that,
monthly pay means the monthly pay at the time of injury or the time disability begins or the time
compensable disability recurs, if the recurrence begins more than six months after the injured
employee resumes regular full-time employment, whichever is greater.17
The Board has defined regular employment as established and not fictitious, odd-lot or
sheltered and that the duties of regular employment are covered by a specific job classification
that would have been performed by another employee if appellant did not perform them.18
ANALYSIS -- ISSUE 1
Following her January 2000 employment injury when she stopped work, appellant
returned to light-duty work on April 29, 2000, worked intermittently, stopped work on April 12,
2004 and claimed total disability beginning that day.
The Board finds that it is apparent that appellant did not return to regular employment.
By her own testimony, appellant related having intermittent periods of disability following her
return to work in April 2000 and work stoppage on April 12, 2004 due to total disability. The
test is not whether the tasks that she performed during her modified duty would have been done
by someone else, but instead whether she occupied a regular position that would have been
performed by another employee. The record supports that appellant did not perform all the
duties of the position of rural letter carrier or any other regular classified position at any time
after her return to work following the January 8, 2000 employment injury. She did not resume
regular employment within the meaning of section 8101(4) of FECA and, as such, the correct
pay rate for compensation purposes should have been $178.85, the weekly pay rate in effect on
the date of injury. Appellant was thus not entitled to the recurrent weekly pay rate of $266.12 on
which her compensation was based for the period April 12, 2004 through April 11, 2009.19

14

5 U.S.C. §§ 8101-8193.

15

Id. at § 8102(a). See D.C., Docket No. 09-1460 (issued April 19, 2010); George A. Rodriguez, 57 ECAB
224 (2005).
16

Id. at 8129(a). See also D.C., id.; Ricky Greenwood, 57 ECAB 462 (2006); Terry A. Keister, 56 ECAB
559 (2005).
17

Id. at § 8101(4); see Janet A. Condon, 55 ECAB 591 (2004).

18

Jeffrey T. Hunter, 52 ECAB 503 (2001).

19

Janet A. Condon, supra note 17.

4

The record supports that appellant’s monetary compensation for the period April 12,
2004 through April 11, 2009 was based on a recurrent pay rate of $266.12 per week, when she
should have received compensation based on the date-of-injury pay rate of $178.95. Computer
print-outs and an overpayment worksheet show that she received compensation of $67,294.24 for
this period, when she should have received compensation of $54,586.57. The Board will affirm
the fact of overpayment in the amount of $12,707.67.
LEGAL PRECEDENT -- ISSUE 2
According to section 10.436,20 recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current, ordinary and necessary
living expenses and also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.21 For waiver under
this standard, an appellant must meet the two-pronged test and show that she needs substantially
all of her current income to meet current ordinary and necessary living expenses,22 and that her
assets do not exceed the resource base.23
The burden is on the claimant to show that the expenses are reasonable and needed for a
legitimate purpose.24 OWCP’s regulations provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of FECA or be against equity and good conscience....
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”25

20

20 C.F.R. § 10.436.

21

OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent, plus $960.00 for each additional dependent. Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).
22

An individual is deemed to need substantially all of his or her income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio Martinez, 55
ECAB 245, 250 (2004).
23

See supra note 21. W.F., 57 ECAB 705, 708 (2006).

24

Id.

25

20 C.F.R. § 10.438. See Madelyn Y. Grant, 57 ECAB 533 (2006).

5

ANALYSIS -- ISSUE 2
The Board notes that appellant failed to provide any information regarding her income on
the overpayment questionnaire she completed, even though she was in receipt of workers’
compensation benefits. In addition, appellant failed to provide any financial information for
OWCP to determine whether waiver of the overpayment was appropriate. An OWCP hearing
representative informed her at the hearing that she should submit a completed overpayment
questionnaire form with supporting documentation. While appellant submitted an overpayment
questionnaire and provided certain information on assets and expenses, she failed to provide any
supporting documentation for the claimed expenses. The burden is on the claimant to show that
waiver would defeat the purpose of FECA. Appellant did not allege and the evidence does not
demonstrate that she relinquished a valuable right or changed her position for the worse due to
the payment of the erroneous amount of compensation. Because she has not shown that,
recovery would defeat the purpose of FECA or would be against equity and good conscience, the
Board finds that OWCP properly denied waiver of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
OWCP’s implementing regulations provide that, if an overpayment of compensation has
been made to an individual entitled to further payments and no refund is made, it shall decrease
later payments of compensation, taking into account the probable extent of future payments, the
rate of compensation, the financial circumstances of the individual and any other relevant
factors, so as to minimize any hardship.26
ANALYSIS -- ISSUE 3
Appellant did not provide any information regarding her household’s monthly income on
the overpayment questionnaire she submitted or provide sufficient supporting evidence regarding
current financial circumstances. It is her responsibility to provide information about income,
expenses and assets.27 An Office hearing representative set the recovery of the overpayment at
$300.00 from continuing compensation payments. Based on the evidence, the hearing
representative did take relevant evidence into account so as to minimize hardship in recovering
the overpayment. OWCP therefore did not abuse its discretion in finding that appellant should
repay her overpayment at the rate of $300.00 per compensation period.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
in compensation in the amount of $12,707.67, that OWCP properly denied waiver of recovery of
the overpayment and required recovery of the overpayment by deducting $300.00 every 28 days
from her continuing compensation payments.

26

Id. at § 10.441(a); see Steven R. Cofrancesco, 57 ECAB 662 (2006).

27

Id. at § 10.438.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 15, 2011 is affirmed.
Issued: May 3, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Knoxville, TN, Employer
__________________________________________

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

Docket No. 14-1757
Issued: June 2, 2015

Case Submitted on the Record

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

JURISDICTION
On August 11, 2014 appellant filed a timely appeal from February 24 and June 5, 2014
merit decisions of the Office of Workers’ Compensation Programs.1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to an increased schedule award for any
extremity.

1

Appellant died on October 7, 2014 after the filing of this appeal. As he properly filed the appeal in his lifetime,
all that is needed is a substitute appellant to carry the appeal forward as the Board’s jurisdiction was invoked during
his lifetime. See Albert F. Kimbrell, 4 ECAB 662, 666 (1952). Accordingly, appellant’s daughter, K.D., is
recognized by the Board as the substitute appellant for the purposes of carrying the appeal forward.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 23, 1989 appellant, then a 41-year-old letter carrier, filed an occupational
disease claim alleging that he sustained osteoarthritis of the right knee due to factors of his
federal employment. OWCP accepted the claim for traumatic arthropathy and unspecified
monoarthritis of the bilateral lower extremities, a sprain of the right rotator cuff, other affections
of the bilateral shoulder region, a sprain of the metacarpophalangeal joint of the left thumb, and a
right biceps tendon rupture.
By decision dated December 16, 1993, OWCP granted appellant a schedule award for a
20 percent permanent impairment of the right lower extremity and a 35 percent permanent
impairment of the left lower extremity.3 In a decision dated October 19, 2006, it granted him a
schedule award for a 30 percent permanent impairment of the right lower extremity and a 13
percent permanent impairment of the left lower extremity.
On December 9, 2008 OWCP granted appellant a schedule award for a nine percent
permanent impairment of each upper extremity.4 On February 9, 2010 it found that he was
entitled to an award for an additional nine percent permanent impairment of the right lower
extremity.
On June 5, 2012 OWCP granted appellant a schedule award for an additional one percent
permanent impairment of the right upper extremity.5 On June 6, 2012 it denied his claim for an
additional schedule award for the right arm.6 By decision dated April 16, 2013, OWCP granted
appellant a schedule award for a seven percent permanent impairment of the left thumb.
3

By decision dated December 7, 1989, OWCP granted appellant a schedule award for a 20 percent permanent
impairment of the right lower extremity. On August 27, 1991 it vacated its December 7, 1989 decision after
determining that he was not at maximum medical improvement. In a decision dated June 14, 1993 and finalized
June 23, 1993, an OWCP hearing representative determined that appellant had no more than a 20 percent permanent
impairment of the left lower extremity and 20 percent permanent impairment of the right lower extremity and
instructed OWCP to provide him with a schedule award decision. In a decision dated July 30, 1993, OWCP denied
modification of the June 14, 1993 decision. By decision dated December 16, 1993, it determined that appellant
received an overpayment of compensation because it paid a schedule award prematurely and further found that he
was not entitled to waiver. On July 1, 1994 an OWCP hearing representative found that OWCP properly calculated
his entitlement to a lump sum for the remainder of his schedule award. On August 18, 1997 the Board set aside
July 1, 1994 and December 16, 1993 decisions. The Board found that OWCP improperly determined that appellant
was not entitled to wavier of recovery of an overpayment. Docket No. 95-516 (issued August 18, 1997).
4

In decision dated March 30 and October 22, 2007, OWCP denied appellant’s request for a lump sum schedule
award.
5

In decisions dated December 9, 2010 and March 16, 2011, OWCP denied appellant’s request for an increased
schedule award. In a nonmerit decision dated June 20, 2011, it denied his request for reconsideration of the
March 16, 2011 decision. In its March 16, 2011 decision, OWCP had modified the December 9, 2010 decision to
reflect that the only issue was whether appellant had a greater impairment of the right upper extremity. On
February 1, 2012 it vacated the March 16, 2011 decision.
6

On September 26, 2012 OWCP modified its June 5, 2012 decision to reflect that March 26, 2010 was the date of
maximum medical improvement. In a nonmerit decision dated December 12, 2012, it denied appellant’s request for
reconsideration of its September 26, 2012 decision.

2

Appellant requested an increase schedule award on September 27, 2013. Medical reports
were forwarded to OWCP.
On July 23, 2013 Dr. Susan N. Pick, a Board-certified orthopedic surgeon, evaluated
appellant’s permanent impairment of the bilateral knees. On examination she measured range of
motion of the left knee as 10 to 80 degrees with mild lateral laxity and 3 to 4 millimeters of
anterior posterior laxity. For the right knee, Dr. Pick measured range of motion of 10 to 50
degrees of flexion with a trace amount of medial laxity. X-rays revealed two degrees valgus
alignment on the right and four degrees valgus alignment on the left. Citing the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)
(6th ed. 2009), she identified the diagnosis as a class 3 total knee replacement due to his fair result
under Table 16-3 on page 511, which yielded a default value of 37 percent. Dr. Pick found a
grade modifier 2 for functional history based on appellant’s “use of assistive devices” and a
grade modifier 3 for physical examination due to his loss of range of motion. She concluded that
appellant had a 34 percent permanent impairment of the left lower extremity.
For the right lower extremity, Dr. Pick identified the diagnosis as a class 4 total knee
replacement based on appellant’s poor result, which yielded a default value of 67 percent under
Table 16-3. She found a grade modifier 3 for functional history and grade modifier 4 for
physical examination based on loss of range of motion, for a total right lower extremity
impairment of 63 percent.
In an impairment evaluation dated August 23, 2013, Dr. William L. Johnson, a Boardcertified orthopedic surgeon, reviewed appellant’s history of a prior left rotator cuff repair and a
repair of the right rotator cuff “with the most recent arthroscopy in February 2013 showing a
rupture of the rotator cuff proximal with no repairable tissue remaining.” On examination he
found 90 degrees of left shoulder abduction and flexion, a functional rotator cuff, and near full
range of motion of the right shoulder. Referencing the A.M.A., Guides, for the left upper
extremity, Dr. Johnson found a 5 percent impairment due to the prior rotator cuff tear and a
10 percent impairment due to the distal clavicle resection, for a total upper extremity impairment
of 15 percent. For the right upper extremity, he found a 10 percent impairment of the
acromioclavicular (AC) joint after a distal clavicle resection, a 5 percent impairment due to
post-traumatic degenerative disc disease, and a 6 percent impairment for residuals symptoms of
the rotator cuff tear, which he combined to find a 20 percent right upper extremity impairment.
OWCP referred the case to an OWCP medical adviser for review. It indicated that
appellant had also received a schedule award for a five percent left upper extremity (elbow
injury) impairment under file number xxxxx915 and a two percent left foot impairment under file
number xxxxxx137.
On February 19, 2014 an OWCP medical adviser reviewed the impairment evaluations
from Dr. Johnson and Dr. Pick. He found that Dr. Johnson combined shoulder impairments in
rating the extent of appellant’s impairment instead of using the single greatest impairment. The
medical adviser determined that the most relevant diagnosis was the distal clavicle resection,
which yielded a 10 percent impairment of each upper extremity. He noted that appellant had
previously received a schedule award for a 7 percent impairment of the thumb, which he found
converted to a 3 percent left upper extremity impairment, and then combined to find a 13 percent

3

total left upper extremity impairment. The medical adviser opined that appellant had no
additional right upper extremity impairment.
For the left lower extremity, the medical adviser concurred with Dr. Pick’s finding of a
34 percent left lower extremity impairment. He thus found that appellant was entitled to an
additional 13 percent impairment of the left lower extremity. For the right lower extremity, the
medical adviser determined that Dr. Pick improperly combined the diagnosis-based impairment
of a total knee replacement with loss of range of motion of the knee. He found that appellant had
no more than the previously awarded 36 percent permanent impairment of the left lower
extremity.
By decision dated February 24, 2014, OWCP granted appellant a schedule award for an
additional 10 percent permanent impairment of the left upper extremity and an additional 13
percent permanent impairment of the left lower extremity.
On March 3, 2014 appellant requested reconsideration. He argued that he was entitled to
additional schedule awards for each extremity based on the findings of Dr. Pick and Dr. Johnson.
Appellant enclosed a January 10, 2014 statement in which he argued that the reports of his
attending physicians were entitled to more weight than the medical adviser who had not
examined him.
By decision dated June 5, 2014, OWCP denied modification of its February 24, 2014
decision.
On appeal appellant argues that he should receive an additional 4 percent impairment of
the right lower extremity as Dr. Pick found that he had a 63 percent impairment and he
previously received an award for a 59 percent impairment. He further maintains that he is
entitled to an additional 3 percent left lower extremity impairment as she found a 34 percent
impairment of the left lower extremity and he previously received an award for a 31 percent
impairment. Appellant additionally alleges that he is entitled to an additional 10 percent right
upper extremity impairment and a 6 percent left upper extremity based on Dr. Johnson’s reports.
He indicates that OWCP overpaid him for the lower extremities and underpaid him for the upper
extremities.
LEGAL PRECEDENT
The schedule award provision of FECA,7 and its implementing federal regulations,8 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

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

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the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.10
The sixth edition requires identifying the impairment class for the diagnosed condition
Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).11 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
ANALYSIS
In decision dated 1993 through 2010, OWCP paid appellant schedule awards totaling a
59 percent permanent impairment of the right lower extremity, a 48 percent permanent
impairment of the left lower extremity, a 10 percent permanent impairment of the right upper
extremity, a 9 percent left upper extremity impairment, and a 7 percent left thumb impairment,
which equals a 3 percent left upper extremity impairment, which equaled a 12 percent total left
upper extremity. It additionally noted that he had received a schedule award for an impairment
of the left upper extremity and left foot in other file numbers.
In 2013, appellant claimed an increased schedule award and submitted impairment
evaluations from Dr. Johnson addressing his upper extremity impairment and from Dr. Pick
addressing his lower extremity impairment.
For the right upper extremity, Dr. Johnson discussed appellant’s history of a rotator cuff
repair and noted that a February arthroscopy showed a right rotator cuff rupture with no
repairable tissue. On the right side, he found that appellant had a 6 percent impairment due to
the rotator cuff tear, a 5 percent impairment due to post-traumatic degenerative disease, and a
10 percent impairment for status post distal clavicle resection. Dr. Johnson combined the
impairment ratings and concluded that appellant had a 20 percent right upper extremity
impairment. The A.M.A., Guides, however, provides, “If a patient has 2 significant diagnoses,
for instance, rotator cuff tear and biceps tendinitis, the examiner should use the diagnosis with
the highest causally-related impairment rating for the impairment calculation. Thus, when rating
a rotator cuff injury/impairment or glenohumeral pathology/surgery, incident resection
arthroplasty of the [AC] joint is not rated.”12 Dr. Johnson, consequently, should not have
combined the impairments from the rotator cuff tear, distal clavicle resection, and arthritis. An
OWCP medical adviser reviewed his report and determined that the rating for the distal clavicle
resection yielded the highest impairment. Consequently, Dr. Johnson found a 10 percent
impairment of the right upper extremity. Appellant had previously received schedule awards

9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
11

A.M.A., Guides at 494-531.

12

A.M.A., Guides at 387; see also R.R., Docket No. 14-998 (issued August 26, 2014).

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totaling a 10 percent right upper extremity impairment; therefore, appellant is not entitled to an
additional award.
For the left upper extremity, Dr. Johnson found a 5 percent impairment for the rotator
cuff tear and a 10 percent impairment for the distal clavicle resection, which yielded a combined
impairment of 15 percent. As discussed, he incorrectly combined the impairment ratings. Upon
review, the medical adviser used the diagnosis that provided the high rating, the distal clavicle
resection, and found a 10 percent left upper extremity impairment. Dr. Johnson noted that
appellant had previously received a schedule award for a seven percent left thumb impairment,
which he converted to a three percent upper extremity impairment.13 The medical adviser
combined the upper extremity impairments to find a total left upper extremity impairment of 13
percent. He thus found that appellant was entitled to an award for an additional 10 percent left
upper extremity impairment. OWCP, however, previously granted appellant schedule awards for
a 9 percent left upper extremity impairment and a 7 percent left thumb impairment, which equals
a 12 percent left upper extremity impairment.14 Further, it indicated that he had received a prior
award of five percent for the left upper extremity under file number xxxxxx915. Consequently,
the case will be remanded to combine the case files and refer both records to the medical adviser
to reconsider whether appellant is entitled to an additional schedule award for the left upper
extremity.
For the left lower extremity, Dr. Pick noted that appellant had range of motion from 10 to
80 degree, mild lateral laxity and up to 4 millimeters of anterior posterior laxity. X-rays showed
four degrees valgus alignment. Dr. Pick utilized the diagnosis of a class 3 impairment for a total
knee replacement set forth in the knee regional grid at Table 16-3 on page 511, applicable for
replacements that yield a fair result, with fair position, mild instability, and/or mild motion
deficit. She applied a grade modifier 2 for functional history as appellant used assistive devices
and a grade modifier 3 for physical examination based on his loss of range of motion. Dr. Pick
did not apply a grade modifier for clinical studies as it appears that she used the clinical studies
to determine the appropriate class. Application of the net adjustment formula discussed above,15
yielded an adjustment one place to the left from the default value of 37 percent to an impairment
rating of 34 percent. An OWCP medical adviser reviewed Dr. Pick’s finding and concurred with
her determination that appellant had a 34 percent left lower extremity impairment. The medical
adviser found that he was entitled to an additional award for a 13 percent left lower extremity
impairment. Appellant, however, previously received schedule awards for the left lower
extremity totaling 48 percent, a two percent left foot impairment under file number xxxxxx915,
and thus he is not entitled to an additional award for the left lower extremity.
For the right knee, Dr. Pick measured range of motion of 10 to 50 degrees of flexion with
a trace amount of medial laxity. X-rays showed two degrees valgus alignment. Dr. Pick used
the diagnosis of a class 4 total knee replacement applicable for poor results, applicable for knee
replacements with poor position, moderate-to-severe instability, and/or moderate-to-severe
13

Id. at 421, Table 15-12.

14

Id. at 604.

15

(GMFH - CDX) + (GMPE - CDX), or (2-3) + (3-3) = -1.

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motion deficit.16 She found grade modifier 3 for functional history and grade modifier 4 for
physical examination due to loss of motion. Dr. Pick applied the grade modifiers to the default
value of 67 percent and concluded that appellant had a 63 percent right lower extremity
impairment. The medical adviser determined that her impairment rating for the right lower
extremity was incorrect because she combined the diagnosis-based impairment with a rating for
range of motion. It appears, however, that Dr. Pick used range of motion only to determine the
appropriate grade modifier for physical examination. On remand, the medical adviser should
reconsider the extent of appellant’s right lower extremity impairment. Following such
development as deemed necessary, OWCP should issue a new decision regarding the extent of
the right lower extremity impairment.
On appeal, appellant argues that OWCP should award him the difference between his
prior awards and the impairment ratings by Dr. Johnson and Dr. Pick. However, it is well
established that, when the examining physician does not provide an estimate of impairment
conforming to the A.M.A., Guides, OWCP may rely on the impairment rating provided by a
medical adviser.17
CONCLUSION
The Board finds that appellant has no more than a 48 percent permanent impairment of
the left lower extremity and a 10 percent permanent impairment of the right upper extremity.
The Board further finds that the case is not in posture for decision regarding the extent of his
right lower extremity impairment and left upper extremity impairment.

16

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

17

See J.Q., 59 ECAB 366 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the June 5 and February 24, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed in part and set aside in part and the
case is remanded for further proceedings consistent with this opinion of the Board.
Issued: June 2, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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