United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, COLEMAN FEDERAL
CORRECTIONAL COMPLEX, Coleman, FL,
Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1402
Issued: March 28, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 21, 2020 appellant, through counsel, filed a timely appeal from a January 23, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish exposure to
tuberculosis (TB) in the performance of duty, as alleged.
FACTUAL HISTORY
On June 23, 2016 appellant, then a 50-year-old secretary, filed an occupational disease
claim (Form CA-2) alleging that she was exposed to TB due to factors of her federal employment,
including working around inmates in a closed environment within a federal prison. She noted that
she first became aware of her condition and realized its relation to factors of her federal
employment on April 21, 2016. Appellant stopped work on April 21, 2016.
In a June 23, 2016 statement, appellant stated that she initially believed that she had
contracted the flu in March 2016 until she was diagnosed with TB on April 21, 2016. She
indicated that she immediately notified her union representative and the employing establishment
of her diagnosis, noting that it was work related as she was frequently around inmates and came
in direct contact with them. Appellant explained that her office was in the unit with no windows
or ventilation. She noted that inmates regularly came to her office to ask questions or to sign
forms. Appellant further noted that she also regularly checked cells, patted down inmates, and
performed all the duties of an officer. She indicated that she was previously diagnosed as a TB
carrier in early childhood, which she disclosed to the employing establishment when she was first
hired 15 years prior. Appellant asserted that she had no symptoms until March 2016.
In a July 21, 2016 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
provided a questionnaire for her completion. In a separate development letter of even date, OWCP
requested that the employing establishment provide additional information regarding appellant’s
occupational disease claim, including comments from a knowledgeable su pervisor regarding the
accuracy of appellant’s statements. It afforded both parties 30 days to respond.
A May 27, 2016 chest computerized tomography (CT) scan demonstrated minor spinal
pleural thickening in the left of very limited degree with some reactive airway changes, as well as
evidence of a limited hiatal hernia.
In an August 2, 2016 work capacity evaluation (Form OWCP-5c), Dr. Sara Vizcay, Boardcertified in family practice, diagnosed TB and indicated that appellant could not work.
In an August 15, 2016 response to OWCP’s development questionnaire, appellant asserted
that she had been exposed to TB at work between 2001 and 2016. She indicated that, during her
10-hour work shifts, she had been exposed to infected inmates and that her coworkers who worked
in the same work environment had also been exposed.
Dr. Vizcay, in an August 15, 2016 Form OWCP-5c, continued to hold appellant off from
work and referred appellant to a pulmonologist.
By decision dated September 12, 2016, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that her diagnosed condition was causally
related to the accepted factors of her federal employment.
2

In a March 13, 2017 medical report, Dr. Vizcay noted that appellant developed flu-like
symptoms in March 2016 and was subsequently diagnosed with TB on April 21, 2016. Appellant
reported that she was frequently around inmates at work. Dr. Vizcay indicated that appellant could
not climb up and down stairs without experiencing shortness of breath exacerbations. She also
observed that appellant experienced difficulty sleeping and had chronic pain and depression
secondary to her work injuries. Dr. Vizcay examined appellant and diagnosed exposure to TB,
positive TB skin test without active disease, restrictive airway disease, and latent TB. She noted
that appellant’s CT scan showed minor apical pleural thickening on the left lung and some reactive
airway peribronchial changes. Dr. Vizcay opined that appellant was exposed to TB at work
because the etiology of this disease is associated with being in secluded places like prisons,
homeless shelters, and/or any crowded condition like appellant’s employing establishment. She
concluded that appellant’s statements regarding appellant’s work injuries around April 21, 2016
were consistent with her medical findings.
In a June 6, 2017 medical report, Dr. Vizcay reiterated her findings and diagnoses, but
additionally diagnosed depression and anxiety secondary to chronic pain. She noted that
appellant’s pulmonary function capacity test performed that day was in the 77 th percentile.
Dr. Vizcay opined to a reasonable medical certainty that appellant was exposed to TB at work.
On September 12, 2017 appellant, through counsel, requested reconsideration. Counsel
argued that, although appellant acknowledged her latent TB, she came in contact with prisoners
with TB at the employing establishment.
By decision dated November 2, 2018, OWCP affirmed, as modified, its September 12,
2016 decision, finding that appellant had not factually established that the employment exposure
to TB had occurred, as alleged.
On November 2, 2019 appellant, through counsel, requested reconsideration.
By decision dated January 23, 2020, OWCP denied modification of the November 2, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 4 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

3

Supra note 2.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

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employment injury. 5 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. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.7
The employee’s burden of proof includes the submission of a detailed description of the
employment factors or conditions, which he or she believes caused or adversely affected a
condition for which compensation is claimed. 8
ANALYSIS
The Board finds that this case is not in posture for decision.
In her June 23, 2016 statement, appellant claimed that she was exposed to TB at work, as
her work duties required her to be in direct contact with inmates in a federal prison and perform
all officer duties, including patting down inmates and regularly checking cells. In her August 15,
2016 response to OWCP’s development questionnaire, she further explained that she had been
exposed to TB at work between 2001 and 2016 during her 10-hour work shifts when she had been
exposed to infected inmates. Appellant indicated that her coworkers who worked in the same work
environment had also been exposed.
In a July 21, 2016 development letter, OWCP requested that the employing establishment
provide additional information regarding appellant’s occupational disease claim, including
comments from a knowledgeable supervisor regarding the accuracy of appellant’s statements. The
employing establishment, however, did not respond to the specific questions in its July 21, 2016
development letter.
The Board finds that it is unable to make an informed decision in this case as the employing
establishment did not respond to the request for comment made by OWCP in the July 21, 2016
development letter. 9

5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

8

T.W., Docket No. 18-0788 (issued July 22, 2019); J.C., Docket No. 16-1663 (issued January 18, 2017); Lori A.
Facey, 55 ECAB 217 (2004).
9

See S.S., Docket No. 19-1021 (issued April 21, 2021); C.K., Docket No. 20-1493 (issued March 29, 2021).

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It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in
the development of the evidence, particularly when such evidence is of the character normally
obtained from the employing establishment or other government source. 10
This case will, accordingly, be remanded to OWCP for further development of the evidence
regarding appellant’s allegations of TB exposure at the employing establishment. OWCP shall
request that the employing establishment provide a detailed statement and relevant evidence and/or
argument regarding appellant’s allegations. Following this and any other necessary development,
it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 28, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10

See M.A., Docket No. 20-1590 (issued May 12, 2021); S.S., id.; D.O., Docket No. 20-0006 (issued September 9,
2020); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo, 29 ECAB 159, 161 (1978).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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

Docket No. 12-872
Issued: September 7, 2012

Case Submitted on the Record

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

JURISDICTION
On March 13, 2012 appellant filed a timely appeal from a February 15, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability on August 22, 2011 that was causally related to her accepted injury.
FACTUAL HISTORY
On October 14, 2010 appellant, then a 50-year-old mail processing clerk, filed a
traumatic injury claim alleging that her left arm went numb on September 24, 2010 while she

1

5 U.S.C. § 8101 et seq.

was working on manual flats. Her claim was accepted for bilateral hand sprains and peripheral
autonomic neuropathic disorder.
In an October 27, 2010 report, Dr. David Z. Hall, a treating physician, diagnosed hand
sprain. He found appellant to have full active range of motion in both hands, no swelling.
Sensation was intact to two-point discrimination and there was no tenderness to palpation.
Dr. Hall opined that appellant could return to full duty with no restrictions. On December 27,
2010 he noted that appellant had returned to work the previous week and was able to work her
regular job with no problems. Dr. Hall again found that appellant had full active range of motion
in both hands, no swelling, intact sensation and nontenderness to palpation.
Appellant submitted a March 2, 2011 report from Dr. John Looms, a treating physician,
who diagnosed sprain/strain. Dr. Looms related appellant’s complaints that her regular duties
had aggravated her symptoms and recommended work restrictions, which included “no repetitive
grasping, lifting, etc.”
On September 26, 2011 appellant filed a notice of recurrence of disability as of
August 22, 2011, alleging that she was experiencing numbing and tingling pains in her hands and
had physical therapy twice a week. She stated that her original condition never subsided.
Appellant submitted emergency room records dated September 24, 2010 from Adventist
Medical Center. Dr. Kevin L. Dean, Board-certified in emergency medicine, diagnosed left
radial neuropathy. He noted that appellant had been experiencing left arm numbness since 2000,
but that it was largely resolved at that time.
On January 11, 2012 OWCP informed appellant that the information and evidence
submitted was insufficient to establish her recurrence claim. It advised her to submit, within 30
days, details surrounding the spontaneous occurrence of her disability and a physician’s report
containing an opinion as to how her alleged disability was causally related to her accepted injury.
By decision dated February 15, 2012, OWCP denied appellant’s claim for recurrence of
disability due to the insufficiency of medical evidence.
LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations define “recurrence of disability” as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which had resulted from a previous injury or illness, without an intervening injury or
new exposure to the work environment that caused the illness.2 This term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn, (except when such withdrawal occurs for reasons of misconduct, nonperformance

2

20 C.F.R. § 10.5(x) (2011). See Carlos A. Marrero, 50 ECAB 117 (1998).

2

of job duties or a reduction-in-force), or when the physical requirements of such an assignment
are altered so that they exceed his or her established physical limitations.3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position, or the medical evidence
establishes that he or she can perform the light-duty position, the employee has the burden to
establish, by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability, and show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.4
The Board will not require OWCP to pay compensation in the absence of medical
evidence directly addressing the particular period of disability for which compensation is sought.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.5
ANALYSIS
OWCP accepted appellant’s claim for bilateral hand sprains and peripheral autonomic
neuropathic disorder. Appellant was released to return to full-duty status on October 27, 2010.
She filed a notice of recurrence of disability as of August 22, 2011, stating that she had
continued to experience ongoing symptoms related to her accepted injury. Appellant did not,
however, submit sufficient medical evidence supporting her disability during the claimed
period.6 The Board finds, therefore, that she has not met her burden of proof to establish that she
sustained a recurrence of disability beginning August 22, 2011.
Medical evidence submitted by appellant in support of her claim included October 27 and
December 27, 2010 reports from Dr. Hall, September 24, 2010 emergency room records and a
March 2, 2011 report from Dr. Looms. As the dates of these reports precede the period of
claimed disability by more than five months, they are not relevant to appellant’s claim.
Appellant did not submit any medical reports from a physician who, on the basis of a complete
and accurate factual and medical history, concluded that she was totally disabled as of
August 22, 2011 due to residuals of her accepted injury. The Board will not require OWCP to
pay compensation for disability in the absence of medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
an employee to self-certify her disability and entitlement to compensation.7
3

Id.

4

Conard Hightower, 54 ECAB 796 (2003).

5

Fereidoon Kharabi, 52 ECAB 291 (2001).

6

As appellant was released to return to full duty on October 27, 2010, it is not necessary to address issues that
would relate to a light-duty assignment, including withdrawal of a light-duty assignment or the alteration of the
physical requirements of a light-duty assignment.
7

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, supra note 5.

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On appeal, appellant contends that her current position has aggravated a preexisting
condition and rendered her incapacitated. For reasons stated, the Board finds that she has failed
to establish that she sustained a recurrence of disability as of August 22, 2011.
As appellant has not submitted any medical evidence showing that she sustained a
recurrence of disability due to her accepted employment injury, the Board finds that she has not
met her burden of proof.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of disability that was causally related to her accepted injury as of
August 22, 2011.
ORDER
IT IS HEREBY ORDERED THAT the February 15, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 7, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
DEPARTMENT OF COMMERCE,
Kenosha, WI, Employer
__________________________________________

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

Docket No. 12-1752
Issued: January 25, 2013

Case Submitted on the Record

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

JURISDICTION
On August 14, 2012 appellant filed a timely appeal of the February 24, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error. Because more than one year elapsed between the most recent merit decision dated
June 17, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits of this
case pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on or after November 19,
2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On February 9, 2010 appellant, then a 54-year-old clerk, filed a claim for traumatic
injury, alleging that he had sustained a right arm and shoulder injury on January 5, 2010 as a
result of his federal employment. In a supplemental statement, he explained that the injury
occurred when he was trying to pry open the vent of the coffee decanter at work with his fingers.
In support of the claim, appellant submitted a number of physical therapy records,3 as
well as progress notes from Dr. William G. Raasch, a Board-certified orthopedic surgeon,
wherein appellant’s diagnosis was stated as rotator cuff tear of the right shoulder. OWCP also
received a magnetic resonance imaging (MRI) scan report pertaining to his right shoulder from
Dr. Scott J. Erickson, dated February 12, 2010, which diagnosed rotator cuff tear. This report
noted anterior supraspinatus partial-thickness tearing, partial tearing of the biceps longhead
tendon, intrasubstance tear of the subscapularis tendon, minimal undulation of the undersurface
of the acromion and os acromiale articulation, anterior and posterior labral undermining with
large posterior paralabral cyst measuring and superior labrum anterior posterior tear with
paralabral cyst.
By decision dated June 17, 2010, OWCP denied appellant’s claim on the grounds that he
had failed to provide a rationalized medical opinion that diagnosed his condition and explained
how the condition was caused by the employment incident.
Appellant subsequently submitted a number of progress reports from Dr. Raasch, who as
of February 10, 2010 diagnosed rotator cuff tear. In an attending physician’s report dated
June 28, 2010, Dr. Raasch indicated with a checkmark that the condition diagnosed was causally
related to appellant’s employment activity.
On December 12, 2011 OWCP received an undated reconsideration request from
appellant who stated that the employing establishment had access to his medical records but had
not forwarded them to OWCP.
Along with the request, appellant submitted a narrative report from Dr. Raasch dated
July 30, 2010, who stated the following:
“[Appellant] is a patient of mine who back on January 5, 2010 injured his right
shoulder. At his February 10, 2010 visit, he described trying to pull up a 2½gallong coffee pot lid and experiencing a sharp pain in the shoulder consistent
with a rotator cuff strain. Because of persistent symptoms an MRI [scan] workup
was performed which confirmed a partial undersurface cuff tear. I feel to a
reasonable degree of medical certainty that the mechanism of injury is consistent
with his pathology. This is based on the fact that the arm was away from the body
when under load placing the rotator cuff at a mechanical disadvantage and
creating a significant tensile stress resulting in the pathology.”

3

A physical therapist is not a “physician” within the meaning of section 8101(2) and cannot render a medical
opinion. See Vickey C. Randall, 51 ECAB 357 (2000).

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By decision dated February 24, 2012, OWCP denied appellant’s December 12, 2011
request for reconsideration on the grounds that it was not timely filed and failed to establish clear
evidence of error in the last merit decision dated June 17, 2010.
LEGAL PRECEDENT
Section 8128(a) of FECA4 does not entitle a claimant to a review of OWCP’s decision as
a matter of right.5 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a). Section 10.607(a) of OWCP’s implementing
regulations provide that an application for reconsideration must be sent within one year of the
date of OWCP’s decision for which review is sought.6
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.8 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.9 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.13 The
4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

20 C.F.R. § 10.607(a).

7

Id. at § 10.607(b).

8

Nancy Marcano, 50 ECAB 110, 114 (1998).

9

Leona N. Travis, 43 ECAB 227, 241 (1991).

10

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

11

Leona N. Travis, supra note 9.

12

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

13

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

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Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that OWCP abused its discretion in denying merit review in
the face of such evidence.14
ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. OWCP
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original OWCP decision.15 However, a right to reconsideration within one
year also accompanies any subsequent merit decision on the issues.16
The most recent merit decision in this case was OWCP’s June 17, 2010 decision, which
denied appellant’s claim because he failed to establish the causal relationship element of his
claim. As appellant’s undated letter received by OWCP on December 12, 2011 requesting
reconsideration of the merits of his claim by OWCP was made more than one year after the
June 17, 2010 merit decision, the Board finds that it was not timely filed.17
On appeal, appellant contends that his request for reconsideration was untimely filed
because he had contacted his employing establishment’s workers’ compensation office after his
injury and was told that it would take care of all documentation and medical evidence for the
claim. He stated that he was therefore under orders by his employing establishment not to
submit further documentation in support of his claim. While appellant may have initially chosen
to rely on what he believed was his employer’s advice, he was advised of his burden to establish
his claim and was advised of his appeal options by OWCP in the decision dated June 17, 2010.
He has not explained his delay in questioning and pursuing his appeal options. The Board finds
that OWCP correctly applied the clear evidence of error standard in evaluating appellant’s newly
submitted medical evidence.
OWCP’s June 17, 2010 decision denied appellant’s claim for failing to establish the
causal relationship element. The decision noted that, while the medical reports submitted
described the accepted incident and diagnosed a rotator cuff tear, no medical evidence of record
provided a rationalized medical opinion explaining how the employment incident had caused the
diagnosed condition.
Following the denial of his claim, appellant submitted to the record several progress notes
regarding physical therapy, as well as progress notes from Dr. Raasch. He also submitted a
narrative report from Dr. Raasch dated July 30, 2010. In this report, appellant provided a history
of his injury, referred to the MRI scan report to confirm a rotator cuff tear diagnosis and opined
that the injury occurred because his arm was away from the body when under load, placing the
14

Thankamma Mathews, 44 ECAB 765, 770 (1993).

15

20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008).

16

D.G., 59 ECAB 455 (2008); Robert F. Stone, 57 ECAB 292 (2005).

17

Appellant had one year to request reconsideration by OWCP of its June 17, 2010 decision. See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6a (January 2004).

4

rotator cuff at a mechanical disadvantage and thus creating a significant tensile stress, resulting
in the diagnosed condition. However, as the Board has explained, it is not enough to merely
show that the evidence could be construed to reach a contrary conclusion, but rather the evidence
must be positive, precise and explicit that OWCP committed an error in denying the claim. For
these reasons, the Board finds that appellant has not established clear evidence of error on the
part of OWCP.
CONCLUSION
The Board finds that appellant’s reconsideration request was untimely filed, and did not
establish clear evidence of error in the denial of his claim.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
W.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Martinez, CA, Employer
__________________________________________

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

Docket No. 08-1233
Issued: March 3, 2009

Case Submitted on the Record

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

JURISDICTION
On March 20, 2008 appellant, through his counsel, filed a timely appeal from the merit
decision of the Office of Workers’ Compensation Programs dated May 17, 2007, denying her
claim for total disability from March 6 to 16, 2007 and the hearing representative’s January 25,
2008 decision affirming that decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant established that she was totally disabled from March 6
to 16, 2007.
FACTUAL HISTORY
On August 2, 2002 appellant, then a 53-year-old nursing assistant, filed a traumatic injury
claim alleging that on that date, while trying to catch a patient who was slipping out of bed, the
patient fell on her thereby causing an injury to her right arm, neck and shoulder. On

September 20, 2002 the Office accepted appellant’s claim for cervical strain. It later accepted
appellant’s claim for degeneration of cervical intervertebral disc. The Office paid appropriate
compensation and medical benefits.
On May 11, 2006 appellant accepted a job offer with the employing establishment as a
voluntary services assistant for 25 hours a week (5 hours a day). This position was modified to
accommodate appellant’s restrictions.1
By decision dated July 27, 2006, the Office found that the position of voluntary service
assistant represented appellant’s wage-earning capacity and computed her new compensation
accordingly.
On March 9, 2007 appellant filed a claim for compensation for the period March 6
through 16, 2007. In support thereof, she submitted a note dated March 8, 2007 from
Dr. Gary Martinovsky, a physician, stating that appellant was under his care for treatment of
cervical disc disease and indicated that due to a flare-up of pain from this condition, she should
be excused from work from March 9 through 16, 2007. Appellant also submitted a March 9,
2007 progress report from Dr. Roger W. Shortz, a Board-certified neurosurgeon, indicating that
she was complaining of moderate constant neck and right upper extremity radicular pain
symptoms. Dr. Shortz noted positive multiple trigger points over the trapezius muscles. He
noted that appellant’s overall condition had worsened since the previous examination and that
she reported increased soreness in her neck since March 5, 2007 while at work.
By decision dated May 17, 2007, the Office denied appellant’s claim for compensation
from March 6 through 16, 2007 as the evidence was not sufficient to establish that she was
unable to perform the restricted-duty work, to which she was assigned.
On May 29, 2007 appellant requested an oral hearing. She submitted a report dated
May 10, 2007 by Dr. Shortz for the State of California wherein he noted that appellant was
complaining of moderate neck pain and moderate right upper extremity radicular pain.
Dr. Shortz requested permission for epidural injections to manage the pain stemming from nerve
root compression as well as physical therapy. In a June 28, 2007 report, he noted that appellant’s
overall condition improved since his previous examination but that she remained temporarily
partially disabled.
At the hearing held on October 25, 2007 appellant described her physical limitations.
She noted that in the winter she got an inflammation and took off work for two days and returned
to work but was in pain so her physician took her off work March 8 through 15, 2007. Appellant
indicated that she could not drive during this time and there was no bus service to her job. She
noted that her restrictions at work were no lifting and “not to much bending.” Appellant noted
that she walks during her job but mostly answers the telephone. She indicated that she uses her
1

The restrictions agreed upon by the employing establishment were as follows: lifting/pushing/pulling up to
10 pounds up to 4 hours a day; no reaching above the shoulder with right arm; and reaching above the left shoulder
limited to 3 hours per day; walking/standing up to 3 hours per day; sitting up to 5 hours per day; operating a motor
vehicle up to 2 hours per day; wrist and elbow repetitive movements for up to 4 hours per day; squatting up to
1 hour per day; kneeling and climbing up to ½ hour per day; and twisting up to 3 hours per day.

2

fingers and hands and that her right hand swells. Appellant noted that during this time she could
not turn her head or lift her arm due to inflammation. The hearing representative kept the record
open for 30 days for the submission of medical evidence.
In a November 8, 2007 note, Dr. Martinovsky wrote, “This is to verify that [appellant]
was under my care for the month of March 2007 and was totally disabled March 6 through
19, 2007.”
By decision dated January 25, 2008, the hearing representative affirmed the Office’s
May 17, 2007 decision.
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.2 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.3
Board precedent provides that, when a wage-earning capacity determination has been
issued and the employee submits evidence with respect to increased disability for work, the issue
presented is whether modification of wage-earning capacity is warranted, not whether appellant
has sustained a recurrence of disability.4 However, the Office is not precluded from accepting a
limited period of employment-related disability, i.e., a recurrence, without a formal modification
of the wage-earning capacity determination.5

2

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986); 20 C.F.R.
§ 10.5(x) provides, “Recurrence of disability means an inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous injury or illness without
an intervening injury or new exposure to the work environment that caused the illness. This term also means an
inability to work that takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical limitations.”
3

Mary A. Ceglia, 55 ECAB 626, 629 (2004); Maurissa Mack 50 ECAB 498, 503 (1999).

4

Katherine T. Kreger, 55 ECAB 633, 636 (2004); see Sharon C. Clement, 55 ECAB 552 (2004).

5

See Sharon C. Clement, supra note 4; see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.9(a) (December 1995).

3

ANALYSIS
The Office accepted appellant’s claim for cervical strain and degeneration of cervical
intervertebral disc causally related to an August 2, 2002 work-related incident and paid
compensation and medical benefits. On May 11, 2006 appellant accepted an offer of
employment with the employing establishment as a voluntary services assistant for 25 hours a
week. This position was modified to accommodate her restrictions. The Office determined that
this position represented appellant’s wage-earning capacity. Subsequently, appellant filed a
claim for total disability benefits from March 6 through 16, 2007. Due to the fact that her claim
was for a limited period of disability, i.e., from March 6 to 16, 2007, the hearing representative
appropriately treated appellant’s claim as a claim for a recurrence of disability.6
In support of her claim, appellant testified with regard to an inflammation and pain and
indicated that her physicians took her off work from March 8 through 15, 2007. However, to
support her claim for a recurrence of disability, she must submit rationalized medical evidence.7
In support of her claim, she submitted notes from Dr. Martinovsky indicating that appellant was
under his treatment in March 2007 and totally disabled from March 6 through 16, 2007.
Appellant also submitted reports by Dr. Shortz noting that he was treating her for neck and right
upper extremity pain at this time. However, neither Dr. Martinovksy nor Dr. Shortz provided
any explanation as to why appellant was disabled, did not explain why she was unable to
perform the requirements of her limited-duty position, nor did either clearly link her disability to
the accepted work-related incident. An award of compensation may not be based on surmise,
conjecture, speculation or appellant’s belief of causal relationship.8 As appellant failed to submit
a rationalized medical opinion showing a change in the nature and extent of the injury-related
condition and as she has not alleged a change in the nature and extent of the job’s requirements,
she has not established a recurrence of disability.
CONCLUSION
The Board finds that appellant has not established that she was totally disabled from
March 6 to 16, 2007.

6

Id.

7

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008).

8

John D. Jackson, 55 ECAB 465 (2004); William Nimitz, 30 ECAB 57 (1979).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 25, 2008 and May 17, 2007 are affirmed.
Issued: March 3, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
COMBAT COMMAND, Langley AFB, VA,
Employer
__________________________________________

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

Docket No. 12-1707
Issued: June 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 13, 2012 appellant filed a timely appeal of a June 15, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) which found 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.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $8,460.55 for the period July 17 through
October 22, 2011; and (2) whether it properly found that appellant was at fault in the creation of
the overpayment and not entitled to waiver of recovery of the overpayment.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the June 15, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal appellant contends that she was not at fault in the creation of the overpayment
as she was not aware of the direct deposit payments due to her automated banking system.
FACTUAL HISTORY
OWCP accepted that appellant, then a 32-year-old joint basing coordinator, sustained
cervical brachial neuritis or radiculitis and aggravation of cervical disc disease at C5-6 in the
performance of duty on August 10, 2009. It paid her compensation for total disability by direct
deposit and placed her on the periodic rolls effective February 14, 2010.
In a March 11, 2010 letter, OWCP informed appellant about her entitlement to
compensation benefits and her responsibility to return to work. Appellant was advised that
compensation benefits were only payable when she could not perform her job duties due to her
injury and to immediately notify OWCP when she returned to work. OWCP explained that she
was to immediately return any payments that she received for any portion of the period after she
returned to work to prevent an overpayment of compensation.
Appellant underwent cervical spine surgery on June 24, 2010. She returned to work in a
full-time, full-duty capacity at a new employing establishment effective July 17, 2011. Despite
her return to full-time employment, appellant received disability compensation by direct deposit
payments in the amount of $2,417.30 every 28 days through October 22, 2011. The dates of the
checks were: July 30, 2011 for the period July 3 through 30, 2011; August 27, 2011 for the
period July 31 through August 27, 2011; September 24, 2011 for the period August 28 through
September 24, 2011; and October 22, 2011 for the period September 25 through
October 22, 2011.
On February 24, 2012 OWCP notified appellant of its preliminary determination that she
received an overpayment of compensation in the amount of $8,460.55 because she returned to
work at full salary while on the periodic rolls.3 It notified her of its preliminary determination
that she was at fault in the creation of the overpayment because she accepted payments that she
knew or reasonably should have known to be incorrect. Appellant was informed of her options if
she wished to challenge the fact of overpayment or to request waiver of recovery of the
overpayment. She was advised to submit, within 30 days, financial information by completing
an overpayment recovery questionnaire (Form OWCP-20).
By decision dated June 15, 2012, OWCP finalized its determination that appellant
received an overpayment of compensation in the amount of $8,460.55 from July 17 through
October 22, 2011 because she received wage-loss compensation after returning to work at full
salary. It determined that she was at fault in the creation of the overpayment because she
accepted a payment which she knew or reasonably should have known to be incorrect and,
therefore, was not entitled to waiver of recovery.

3

OWCP calculated that appellant received $2,417.30 every 28 days for 98 days for the period July 17 through
October 22, 2011: ($2,417.30/28) x 98 = $8,460.55.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 FECA, however, also places limitations on an employee’s right to receive
compensation benefits. Section 8116 provides that, while an employee is receiving benefits he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.5 OWCP regulations further state that compensation for wage loss due to
disability is available only for the period where an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.6 A claimant
is not entitled to receive temporary total disability and actual earnings for the same period.7
OWCP procedures provide that an overpayment in compensation is created when a claimant
returns to work and has earnings but continues to receive wage-loss compensation.8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $8,460.55. The record reflects that she returned to full-time work at a new employing
establishment on July 17, 2011; but she continued to receive wage-loss compensation benefits
for total disability until October 22, 2011. OWCP determined that the amount of compensation
appellant received for the period July 17 through October 22, 2011 totaled $8,460.55. Because
appellant received regular full-time wages from the employing establishment from July 17
through October 22, 2011, she was not entitled to disability compensation from OWCP for the
same period. The Board finds that her receipt of dual payments created an overpayment of
compensation. There is no contrary evidence nor does appellant contest the amount and period
of the overpayment. The Board finds that OWCP properly determined that she received an
overpayment in the amount of $8,460.55 for the period July 17 through October 22, 2011.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when 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. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery

4

5 U.S.C. § 8102(a).

5

Id. at § 8116(a).

6

20 C.F.R. § 10.500(a).

7

See Daniel Renard, 51 ECAB 466, 469 (2000).

8

See L.S., 59 ECAB 350 (2008); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (September 2010).

3

would defeat the purpose of FECA or be against equity and good conscience.9 No waiver of
payment is possible if appellant is with fault in helping to create the overpayment.10
In determining whether an individual is with fault, section 10.433(a) of OWCP’s
regulations provide in relevant part that an individual is with fault in the creation of an
overpayment who: (1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or (2) failed to provide information which he or she knew or
should have known to be material; or (3) accepted a payment which he or she knew or should
have known to be incorrect.11
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
she accepted payments that she knew or should have known to be incorrect. The Board finds,
however, that OWCP failed to establish that, at the time appellant accepted the initial payment of
compensation, she knew or should have known the payments were incorrect.
In cases where a claimant receives compensation through direct deposit, the Board has
held that OWCP must establish that at the time a claimant received the direct deposit in question
that she knew or should have known that the payment was incorrect.12 The Board has held that
an employee who receives payments from OWCP in the form of a direct deposit may not be at
fault for the first incorrect deposit into her account since the acceptance of the overpayment, at
the time of receipt of the direct deposit, lacks the requisite knowledge.13 Because fault is defined
by what the claimant knew or should have known at the time of acceptance, one of the
consequences of electronic fund transfers is that the claimant lacks the requisite knowledge at the
time of the first incorrect payment.14 Whether or not OWCP determines that an individual is at
fault with respect to the creation of an overpayment depends on the circumstances surrounding
the overpayment.15 It is not appropriate, however, to make a finding that a claimant has accepted
an overpayment via direct deposit until such time as a reasonable person would have been aware
that this overpayment had occurred. This awareness could be established either through
documentation such as a bank statement or notification from OWCP or where a reasonable
period of time has passed during which a claimant could have reviewed independent
confirmation of the incorrect payment.16
9

5 U.S.C. § 8129(b).

10

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

11

20 C.F.R. § 10.433(a).

12

See C.K., Docket No. 12-746 (issued May 1, 2012).

13

See Tammy Craven, 57 ECAB 589 (2006); see also George A. Hirsch, 47 ECAB 520 (1996).

14

Id.

15

Id.; see also K.D., Docket No. 13-451 (issued April 12, 2013).

16

See K.H., Docket No. 06-191 (issued October 30, 2006).

4

On appeal appellant contends that she was not at fault in the creation of the overpayment
as she was not aware of the direct deposit payments due to her automated banking system. The
record establishes that appellant received compensation by direct deposit payments every 28
days from July 17 to October 22, 2011. The evidence of record does not establish that, as of the
first direct deposit of compensation, after appellant returned to work on July 17, 2011, she knew
or should have known that she was accepting a direct deposit to which she was not entitled. The
record does not contain any documentation or other evidence to demonstrate that appellant had
clear knowledge at the time of the initial direct deposit for the period July 17 through 30, 2011
that the payment was incorrect or that a reasonable period of time passed during which she could
have reviewed bank statements or been informed of the incorrect payment. The Board finds that,
when the initial July 30, 2011 direct deposit was made, appellant had no knowledge that this
direct deposit was incorrect. Therefore, she is not at fault in the acceptance of the initial July 30,
2011 direct deposit.
Even though OWCP may have been negligent in making incorrect payments, this does
not excuse a claimant from accepting payments she knew or should have known to be
incorrect.17 In cases involving a series of incorrect payments, where the requisite knowledge is
established by documentation from OWCP or simply with the passage of time and opportunity
for discovery, the claimant will be at fault for accepting the payments subsequently deposited.18
By the time of the second payment dated August 27, 2011, appellant knew or should have known
that she was no longer entitled to compensation. She had returned to work on July 17, 2011, and
could have taken further steps to prevent issuance of further payments. Accordingly, the Board
will affirm the finding of fault for the remaining July 31 through October 22, 2011 period of
overpayment.
The Board finds that this case is not in posture for decision regarding the issue of waiver
of recovery of the overpayment for the initial direct deposit on July 30, 2011. The Board will set
aside the June 15, 2012 decision regarding the issue of fault as to the initial July 30, 2011 direct
deposit and will remand the case for OWCP to determine whether appellant is entitled to waiver
of recovery for the direct deposit of compensation covering the period July 17 through 30, 2011.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $8,460.55 for the period July 17 through October 22, 2011.
The June 15, 2012 decision is set aside in part and remanded to OWCP regarding the issue of
waiver of recovery of the overpayment for the period July 17 through 30, 2011.

17

See William E. McCarty, 54 ECAB 525 (2003).

18

See J.W., Docket No. 10-1271 (issued February 3, 2011); see also Karen K. Dixon, 56 ECAB 145 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, and set aside, in part. The case is
remanded for further action consistent with this decision of the Board.
Issued: June 10, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 11-685
Issued: September 21, 2011

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 January 20, 2011 appellant filed a timely appeal from the November 29, 2010
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which denied her
October 29, 2010 request for reconsideration. Pursuant to the Federal Employees’ Compensation
Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this
nonmerit decision. The Board has no jurisdiction to review OWCP’s May 27, 2010 nonmerit
decision denying appellant’s December 10, 2009 request for reconsideration, as she did not
appeal that decision to the Board within 180 days. The Board also has no jurisdiction to review
the October 24, 2010 medical report submitted on appeal.2

1
2

5 U.S.C. § 8101 et seq.

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).

ISSUE
The issue is whether OWCP properly denied appellant’s October 29, 2010 request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error.
FACTUAL HISTORY
In the prior appeal,3 the Board affirmed OWCP’s February 22, 2008 denial of appellant’s
claim that an employer-scheduled functional capacity evaluation on June 21, 2005 injured her
left hand and wrist. The Board found that she failed to meet her burden of proof because the
evidence raised too many doubts about whether the injury occurred as alleged. Although
medical opinion evidence supported the claim, it failed to establish the critical element of causal
relationship. The facts of this case as set out in the Board’s prior decision are hereby
incorporated by reference.
On October 29, 2010 appellant requested reconsideration. She stated that she had
submitted a new medical report on December 10, 2009. Appellant noted that she was also
submitting a new medical report dated October 24, 2010. She added: “I am suffering daily from
this left wrist/hand injury.”
In a decision dated November 29, 2010, OWCP denied appellant’s October 29, 2010
request for reconsideration of its February 22, 2008 decision on the grounds that it was untimely
and failed to present clear evidence of error. It noted that the medical evidence to which she
referred was not received.
On appeal, appellant noted that she was not requesting reconsideration of the OWCP’s
February 22, 2008 decision. She submitted a copy of OWCP’s November 29, 2010 denial and
labeled February 22, 2008 as the “wrong date.” Appellant argued that her request for
reconsideration was timely from the Board’s June 17, 2009 order denying her petition for
reconsideration. She argues that OWCP did not acknowledge her attending physician’s report.
Appellant alleged that OWCP mishandled her claim. She alleged that OWCP did not review
important information. Appellant alleged that important information was missing. She reiterated
that she was injured during the functional capacity evaluation on June 21, 2005.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
3

Docket No. 08-1167 (issued October 7, 2008), petition for recon. denied, June 17, 2009.

2

(2) award compensation previously refused or discontinued.”4
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be sent within one year of the date of the OWCP decision
for which review is sought.5 The one-year period begins on the date of the original decision.
However, a right to reconsideration within one year accompanies any subsequent merit decision
on the issues. This includes any hearing or review of the written record decision, any denial of
modification following reconsideration, any merit decision by the Board, and any merit decision
following action by the Board, but does not include pre-recoupment hearing decisions.6
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of OWCP in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.7
The term “clear evidence of error” is intended to represent a difficult standard.8 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.9
ANALYSIS
The most recent merit review of appellant’s case is the Board’s October 7, 2008 decision
affirming the February 22, 2008 denial of her claim for compensation. Appellant had one year
from that decision, or until October 7, 2009, to file a timely request for reconsideration with
OWCP. Her October 29, 2010 request for reconsideration was more than a year too late. The
question for determination is whether this untimely request shows on its face that the most recent
merit decision was erroneous.
The request at issue is a single handwritten page, four sentences long. It stated that
appellant requested reconsideration and had submitted new medical evidence.
On its face, this request is merely informational. It advised what action appellant took
with a declaration that she still had pain. This brief correspondence does not establish that
OWCP’s denial of her claim for compensation was erroneous. In its October 7, 2008 decision
affirming OWCP’s denial, the Board explained the problems with appellant’s case and why too
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.b(1) (January 2004).
(Emphasis deleted.)
7

20 C.F.R. § 10.607.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

9

Id. at Chapter 2.1602.3.d(1).

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many doubts remained about whether she injured her left hand and wrist as alleged. Appellant’s
untimely request does not resolve these doubts. It does not show that OWCP’s February 22,
2008 decision, as affirmed by the Board, was clearly erroneous. It does not meet the standard of
review for untimely requests.
The Board notes that appellant’s October 29, 2010 request provided no accompanying
evidence. Appellant submitted an October 24, 2010 medical report with her appeal to the Board,
but the Board has no jurisdiction to consider new evidence on appeal.10
Because appellant’s October 29, 2010 request for reconsideration is untimely and fails to
show clear evidence of error on the part of OWCP in its most recent merit decision, the Board
finds that OWCP properly denied that request. The Board will affirm OWCP’s November 29,
2010 decision.
Appellant takes issue on appeal with OWCP’s statement that she was requesting
reconsideration of its February 22, 208 decision, but OWCP is correct. OWCP’s February 22,
2008 decision is the last merit decision that provided her with a right to reconsideration within
one year. Appellant suggested that her request is timely from the Board’s June 17, 2009 order
denying her petition for reconsideration, but (1) the one-year period for requesting
reconsideration did not run from the Board’s June 17, 2009 nonmerit order and (2) appellant’s
October 29, 2010 request would still have been untimely. She repeats her argument that OWCP
mishandled her claim and that important information is missing, but none of that is relevant to
the issue before this Board, which is whether her October 29, 2010 correspondence satisfies the
difficult standard of review for untimely requests and warrants a reopening of her case for a
review on its merits. That is the only issue the Board may review on this appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s October 29, 2010 request for
reconsideration. The request was untimely and failed to show clear evidence of error in OWCP’s
most recent merit decision.

10

See supra note 2.

4

ORDER
IT IS HEREBY ORDERED THAT the November 29, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 21, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New Orleans, LA, Employer
__________________________________________

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

Docket No. 10-510
Issued: October 1, 2010

Case Submitted on the Record

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

JURISDICTION
On December 14, 2009 appellant filed a timely appeal from an October 9, 2009 decision
of the Office of Workers’ Compensation Programs that found an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $20,312.64; (2) whether the Office properly denied waiver of the overpayment; and
(3) whether the Office properly required repayment of the overpayment by deducting $250.00
each period from her continuing compensation payments.
On appeal, appellant argues that the overpayment is $16,760.01, the amount she received
as a Voluntary Separation Incentive Payment (VSIP) incentive and that she used the monies
received to recover from Hurricane Katrina.

FACTUAL HISTORY
This case has previously been before the Board.1 By decision dated December 11, 2007,
the Board found that appellant received an overpayment in compensation because she
concurrently received a VSIP payment of $25,000.00 from the employing establishment and
compensation for total disability. The Board found the case not in posture for decision regarding
the amount of the overpayment because the Office did not support its use of the dollar-for-dollar
off set method in calculating the overpayment. The case was remanded to the Office to apply the
method of offset used when a buyout is based on weeks of pay to determine the amount of the
overpayment. The case was also not in posture as to whether appellant was at fault in the
creation of the overpayment.2 In a September 3, 2009 decision, the Board found the case not in
posture for decision regarding the amount of overpayment. The Board noted that a $25,000.00
incentive would be the equivalent of 18.42 weeks or 128 days of pay in appellant’s case and the
record supported that from June 30, 2006, the date of her retirement, to November 4, 2006, a
period of 128 days, she received gross compensation totaling $20,312.64. The Board found that
the Office did not explain why it chose to base the overpayment calculation on the gross amount
of the VSIP buyout, $25,000.00, which yielded an overpayment of $20,312.64, when the record
supported that appellant received a net buyout of $16,760.01 and the latter figure was used in the
Office’s initial calculation of the overpayment on May 18, 2007. The case was remanded to the
Office for proper findings as to the amount of the overpayment in compensation, to be followed
by an appropriate decision.3 The facts of the case as set forth in the previous Board decisions are
incorporated herein by reference.
By decision dated October 9, 2009, the Office found that an overpayment in
compensation in the amount of $20,312.64 had occurred because appellant was paid a VSIP
buyout on or about July 20, 2006 and concurrently received wage-loss compensation. It advised
that the overpayment was calculated in accordance with Office procedures which provided that
to determine the number of weeks for which compensation payments should be suspended, the
total amount of severance pay was to be divided by the salary used to compute it. The Office
then divided the amount of the VSIP by the salary used to compute it or the weekly amount,
noting that the salary used to compute the VSIP was $70,558.00 annually or $1,356.88 per week
and that when the amount of the VSIP, $25,000.00, was divided by the weekly salary, 18.42
weeks or 128 days of pay was found. It advised that the weekly pay for compensation purposes,
that included premium pay, was $1,481.13 and when multiplied by the 3/4, augmented, rate
1

On April 27, 2005 appellant, then a 59-year-old nurse, sustained employment-related lumbar and neck strains
while lifting a patient. She received compensation for temporary total disability on the periodic rolls and on July 20,
2006 received a VSIP in the amount of $25,000.00, with a net payment of $16,760.01. Appellant has not returned to
work.
2

L.J., 59 ECAB ____ (Docket No. 07-1844, issued December 11, 2007).

3

Docket No. 08-1958 (issued May 09, 2008). The Board also found that a determination of whether the Office
properly denied waiver of the recovery of the overpayment and whether it properly required repayment of the
overpayment in full was premature. The Board notes that appellant, who was found without fault, did not respond to
the preliminary overpayment finding or provide any financial documentation to support her argument that she had
spent the VSIP incentive to repair her home destroyed by Hurricane Katrina. See John Skarbek, 53 ECAB
630 (2002).

2

yielded a weekly compensation rate of $1,110.85 or $158.69 a day. When $158.69 was
multiplied by 128 days, an overpayment in the amount of $20,312.64 resulted. The Office
explained that the gross amount was used because no deductions were taken from appellant’s
compensation. Appellant was found without fault in the creation of the overpayment because
she had no way of knowing that by accepting the VSIP incentive and continued wage-loss
compensation, an overpayment would be created. The Office found that appellant did not
provide an overpayment questionnaire or other financial information and waiver could not be
considered. It directed recovery at the rate of $250.00 from her continuing compensation
payments.
LEGAL PRECEDENT -- ISSUE 1
Employing establishments may offer separation pay or buyouts to encourage employees
to leave federal employment voluntarily. Office procedures provide that compensation for
temporary total disability may not be paid for the period covered by separation pay.4 Some
separation payments are based on a specific number of weeks of pay while others are capped at a
specified amount of money. In order to apply uniform standards to all claimants, however,
offsets for both types of payments should be computed in the same manner regardless of the way
an employing establishment has offered separation pay.5 Whether separation pay is based on
weeks of pay or a specified dollar amount, compensation should be suspended for the number of
weeks of salary that the separation pay represents.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation of $20,312.64.
Following the September 3, 2009 remand by the Board, the Office issued an October 9, 2009
decision which explained its calculation of the overpayment amount. The VSIP was based on
appellant’s annual salary of $70,557.75 and she was awarded $25,000.00. In accordance with
Office procedures, to determine the number of weeks for which compensation payments should
be suspended, the total amount of severance pay was to be divided by the salary used to compute
it. The Office divided the amount of the VSIP by the salary used to compute it, or the weekly
amount, noting that the salary used to compute the VSIP was $70,558.00 annually or $1,356.88
per week. When the amount of the VSIP, $25,000.00, was divided by the weekly salary, 18.42
weeks or 128 days of pay was found. The Office advised that the weekly pay for compensation
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17.c(1) (June 2009).

5

See Lynne M. Schaack, Docket No. 05-695 (issued November 9, 2005).

6

The Board notes that the Office’s Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter
2.1000.17 (April 1996) originally provided that separation pay could be offset by either a dollar-for-dollar amount or
based on the period of weeks’ salary the payment represented. Following the Board’s decisions in Schaack, id. and
L.J., supra note 1, the Office revised this section of the procedure manual in FECA Transmittal Docket No. 09-05
(issued June 1, 2009). Where severance or separation pay is based on weeks of pay, compensation should he
suspended for the period in question effective the date of retirement or separation. Where the payment is based on
an amount of money, the claims examiner is to calculate the number of week’s worth of salary that the separation
pay represents and suspend compensation for the number of weeks calculated. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Dual Benefits, Chapter 2.1700.17(d) (June 2009); see R.H., 60 ECAB ____ (Docket No. 08-2025,
issued July 20, 2009).

3

purposes, that included premium pay, was $1,481.13, when multiplied by the 3/4, augmented
rate yielded a weekly compensation rate of $1,110.85 or $158.69 a day. When $158.69 was
multiplied by 128 days, an overpayment in the amount of $20,312.64 was found. The Office
explained that the gross amount was used because no deductions were taken from appellant’s
compensation.
The Board finds that the Office properly set fourth how the amount of overpayment was
calculated.7 It properly determined that an overpayment in compensation of $20,312.64 was
created because appellant received a VSIP payment concurrently with wage-loss compensation
equivalent to 128 days of pay.8
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”9 Section 10.438 of Office regulations provides that [t]he individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by [the Office]. This information is needed to determine whether or not
recovery on an overpayment would defeat the purpose of the Act or be against equity and good
conscience.10 Failure to submit the requested information within 30 days of the request shall
result in denial of waiver.11
ANALYSIS -- ISSUE 2
As the Office found appellant without fault in the creation of the overpayment, waiver
must be considered and repayment is still required unless adjustment or recovery of the
overpayment would defeat the purpose of the Act or be against equity and good conscience.12

7

See Jenny M. Drost, 56 ECAB 587 (2005).

8

L.D., 59 ECAB ____ (Docket No. 08-678, issued August 7, 2008).

9

5 U.S.C. § 8129.

10

Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom the Office seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined [by the
Office] from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. Recovery of an overpayment is
considered to be against equity and good conscience when an individual who received an overpayment would
experience severe financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. Id. at § 10.437.
11

20 C.F.R. § 10.438.

12

Supra note 9.

4

Appellant, however, had the responsibility to provide financial information to the Office13 in
order that it could proceed with consideration of waiver. She did not do so.
In the April 18, 2007 preliminary determination, the Office clearly explained the
importance of providing the requested financial information and advised appellant that it would
deny waiver if she failed to furnish such information within 30 days. In the September 3, 2009
decision, the Board noted that appellant has not responded to the April 18, 2007 preliminary
overpayment finding or provided any financial documentation.14 Appellant did not submit a
completed overpayment questionnaire or otherwise submit financial information supporting her
income and expenses. As a result, the Office did not have the necessary financial information to
determine whether recovery of the overpayment would defeat the purpose of the Act or whether
recovery would be against equity and good conscience. Appellant failed to support her
contention that she used the VSIP payment to recover from Hurricane Katrina. Because she did
not submit the financial information required under section 10.438 of the Office’s regulations, it
properly denied waiver of recovery of the overpayment in compensation in the amount of
$20,312.64.15
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of the Office’s regulations provide that when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to the
Office the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, the Office 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 hardship.16
ANALYSIS -- ISSUE 3
As noted, appellant failed to submit an overpayment recovery questionnaire or any other
financial information that the Office requested prior to the final October 9, 2009 overpayment
decision. The overpaid individual is responsible for providing information about income,
expenses and assets as specified by the Office.17 When an individual fails to provide requested
financial information, the Office should follow minimum collection guidelines designed to
collect the debt promptly and in full.18 Because appellant did not submit the requested financial

13

20 C.F.R. § 10.438.

14

Supra note 3.

15

Id..

16

20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

17

Id.

18

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Chapter 6.200.4(c)(2) (September 1994).

5

information there is no evidence of record to establish that the Office erred by directing recovery
at a rate of $250.00 each compensation period.
CONCLUSION
The Board finds that an overpayment in compensation in the amount of $20,312.64 was
received by appellant and that the Office properly denied waiver of the overpayment and
required repayment by deducting $250.00 each period from her continuing compensation
payments.
ORDER
IT IS HEREBY ORDERED THAT the October 9, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 1, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Canandaigua, NY, Employer
__________________________________________

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

Docket No. 10-2029
Issued: July 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 3, 2010 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ (OWCP) April 28, 2010 schedule award decision. Pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 11 percent impairment of the right upper
extremity and 13 percent impairment of the left upper extremity, for which she received schedule
awards.
On appeal, appellant contends that she is entitled to an additional schedule award due to
her permanent impairment. She also contends that OWCP should have applied a previous

1

5 U.S.C. § 8101 et seq.

edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) to her schedule award claim since it was not a new claim.
FACTUAL HISTORY
On September 25, 1992 appellant, then a 44-year-old nursing assistant, filed an
occupational disease claim under File No. xxxxxx423 alleging that she sustained a left shoulder
rotator cuff tear and a painful left trapezium metacarpal joint when she caught a patient who had
toppled after having a seizure. OWCP accepted her claim for left rotator cuff tear and left
trapezium metacarpal joint strain. It authorized left shoulder rotator cuff repair and anterior
acromionectomy which appellant underwent on November 24, 1993. Appellant returned to fullduty work with no restrictions on June 21, 1994.
On May 22, 1996 appellant filed a traumatic injury claim under File No. xxxxxx036
alleging that she hurt her right shoulder and arm while escorting a patient downstairs on
May 21, 1996. OWCP accepted her claim for right shoulder sprain. Appellant stopped work on
June 5, 1996. She returned to work in a limited-duty position on June 11, 1996.2
On June 20, 2008 OWCP combined appellant’s claims and File No. xxxxxx423 was
designated as the master file.
On November 4, 2008 OWCP granted appellant schedule awards for 11 percent
impairment of the right upper extremity and 13 percent impairment of the left upper extremity.
The awards were based on the fifth edition of the A.M.A., Guides.3
By letter dated October 26, 2009, appellant requested an additional schedule award. In a
January 22, 2010 medical report, Dr. David Cywinski, an attending Board-certified internist,
advised that appellant had 50 percent impairment to each upper extremity based on the New
York State Workers’ Compensation Board Guidelines.
By letter dated March 1, 2010, OWCP referred appellant, together with the case record
and a statement of accepted facts, to Dr. Arlen K. Snyder, a Board-certified orthopedic surgeon,
for a second opinion medical examination.
In a March 29, 2010 report, Dr. Snyder obtained a history of the employment injuries and
appellant’s medical treatment. Appellant’s current symptoms included decreased range of
motion of her right and left arms when lifting overhead and reaching behind. She had bilateral
shoulder pain, interrupted sleep, and numbness and heaviness of the bilateral arms. On physical
examination, Dr. Snyder found no tenderness on palpation of either shoulder. Biceps, triceps and
deltoid strength bilaterally was normal. Deep tendon reflexes, grip strength and pinprick
sensation were normal. Range of motion measurements for the right arm included 110 degrees
of flexion, 80 degrees of abduction, 60 degrees each of external rotation and extension.
Dr. Snyder noted that posterior right buttock for internal rotation. Range of motion
2

The record reveals that appellant is no longer working at the employing establishment.

3

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

2

measurements for the left arm included: 90 degrees of flexion; 80 degrees of abduction; 45
degrees of external rotation; and 70 degrees of extension. Internal rotation was to the midlumbar spine. There was a slightly positive Tinel’s sign involving the left hand and a slightly
positive Phalen’s test bilaterally. Dr. Snyder stated that appellant did not appear to be in any
kind of pain during the entire examination, even with range of motion, although she experienced
some discomfort at the extremes of motion testing.
Dr. Snyder advised that appellant had reached maximum medical improvement in
December 1993 regarding her left shoulder and approximately May or June 1997 regarding her
right shoulder. He utilized the sixth edition of the A.M.A., Guides to determine that, with regard
to the left arm, appellant had a grade 2 modifier each for Functional History and Physical
Examination and a grade 1 modifier for Clinical Studies under Table 15-23 on page 449.
Applying Table 15-34 on page 475, Dr. Snyder determined that appellant had three percent
impairment for 90 degrees of flexion, six percent impairment for 80 degrees of abduction and no
impairment each for external and internal rotation. He added the impairments due to loss of
range of motion to find a nine percent left upper extremity impairment. Dr. Snyder determined
that, under Table 15-35 on page 477, nine percent impairment represented a grade 1 modifier.
He multiplied the nine percent impairment for loss of motion by five percent impairment under
Table 15-36 on page 477, for grade 1 modifier, to calculate 0.45 or one percent. Dr. Snyder
added the 1.00 percent impairment to the 9 percent loss of motion impairment to calculate a 10
percent left upper extremity impairment. He applied the same calculations in rating the right
upper extremity with the addition of one percent impairment due to decreased internal rotation
only to the posterior buttock area. Dr. Snyder calculated a 10 percent impairment of the right
upper extremity. He multiplied the 10 percent loss of motion impairment by 5 percent which
resulted in 0.5 percent or 1.00 percent. Dr. Snyder added the 1 percent impairment to the 10
percent loss of motion impairment which resulted in 11 percent impairment of the right upper
extremity impairment.
On April 18, 2010 Dr. Andrew A. Merola, OWCP’s medical adviser, reviewed the
medical record. He agreed with Dr. Snyder’s finding that appellant had 11 percent impairment
of the right upper extremity and 10 percent impairment of the left upper extremity under the sixth
edition of the A.M.A., Guides.
In an April 28, 2010 decision, OWCP found that appellant was not entitled to an
additional schedule award for her right and left upper extremities. The evidence was insufficient
to establish that she had more than 11 percent impairment of the right upper extremity and 13
percent impairment of the left upper extremity, as previously awarded.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

3

FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.6 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 Effective May 1, 2009,
OWCP adopted the sixth edition of the A.M.A., Guides8 as the appropriate edition for all awards
issued after that date.9
ANALYSIS
OWCP accepted appellant’s claim for left rotator cuff tear, left trapezium metacarpal
joint strain and right shoulder sprain. On November 24, 1993 appellant underwent left shoulder
rotator cuff repair and anterior acromionectomy. On November 4, 2008 she received a schedule
award for 11 percent impairment of the right upper extremity and 13 percent impairment of the
left upper extremity. In an April 28, 2010 decision, OWCP found that appellant was not entitled
to any additional schedule award for either upper extremity. The Board finds that she did not
meet her burden of proof to establish that she sustained greater impairment.
In a January 22, 2010 impairment evaluation, Dr. Cywinski, an attending physician,
found that appellant had 50 percent impairment to each the right and left upper extremity under
the New York State Workers’ Compensation Board Guidelines. However, his opinion is of
limited probative value. Dr. Cywinski did not provide a sufficiently reasoned opinion and
impairment rating in conformance with the A.M.A., Guides, the standard adopted by OWCP and
approved by the Board as appropriate for evaluating schedule losses.10
In order to determine the extent and degree of any employment-related impairment,
OWCP referred appellant to Dr. Snyder for a second opinion examination. In a March 29, 2010
impairment evaluation, Dr. Snyder noted appellant’s complaints of decreased range of motion of
her right and left arms when lifting overhead and reaching behind, bilateral shoulder pain,
interrupted sleep, and numbness and heaviness of the bilateral arms. On physical examination,
he found normal bilateral biceps, triceps and deltoid strength, deep tendon reflexes, grip strength
and pinprick sensation. Dr. Snyder also found no tenderness on palpation of either shoulder. He
reported a slightly positive Tinel’s sign involving the left hand and a slightly positive Phalen’s
test bilaterally. Dr. Snyder measured range of motion of the upper extremities and noted that
appellant experienced some discomfort. For the left arm, he found 90 degrees of flexion yielded
three percent impairment, 80 degrees of abduction yielded six percent impairment and 45
6

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

7

Supra note 5.

8

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

9

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
10

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment).

4

degrees of external rotation and 70 degrees of extension each yielded no impairment, which he
added to find a total left arm impairment of nine percent. Dr. Snyder assessed a grade 1 modifier
for the nine percent impairment under Table 15-35 on page 477. He multiplied the nine percent
impairment for loss of motion by five percent impairment under Table 15-36 on page 477 to
calculate 0.45 percent which he properly rounded up to one percent.11 Dr. Snyder advised that
the same calculations noted above applied to the right upper extremity with the addition of 1
percent impairment due to decreased internal rotation only to the posterior buttock area which
resulted in 10 percent impairment. He multiplied the 10 percent loss of motion impairment by 5
percent which resulted in 0.5 percent or 1 percent.12 Dr. Snyder added the 1 percent impairment
to the 10 percent loss of motion impairment to calculate 11 percent impairment of the right upper
extremity impairment. The Board finds that his ratings conform to the sixth edition of the
A.M.A., Guides.
Dr. Merola, OWCP’s medical adviser, reviewed Dr. Snyder’s findings on April 18, 2010
and concurred with his determination that appellant had 11 percent impairment of the right upper
extremity and 10 percent impairment of the left upper extremity under the sixth edition of the
A.M.A., Guides. The Board finds that the evidence supports that appellant has no more than 11
percent impairment of the right upper extremity and 13 percent impairment of the left upper
extremity. There is no other medical evidence of record addressing the extent of appellant’s
permanent impairment under the sixth edition of the A.M.A., Guides.
Appellant’s contention on appeal that she is entitled to an additional schedule award has
not been established based on the discussion of the evidence above. She contended that her
schedule award claim should not have been calculated under the sixth edition of the A.M.A.,
Guides since it was not a new claim. Pursuant to FECA Bulletin No. 09-03, all schedule award
decisions after May 1, 2009 must utilize the sixth edition of the A.M.A., Guides.13 Even though
appellant’s prior schedule award was previously rated impairment under the fifth edition of the
A.M.A., Guides, she requested an additional schedule award on October 26, 2009 and submitted
Dr. Cywinski’s January 22, 2010 report finding that she had 50 percent impairment to each the
right and left upper extremity. As appellant was seeking schedule awards for additional
impairments, OWCP properly ought further medical review under the sixth edition.14 The
schedule award was not issued until after May 1, 2009. The Board finds that it properly based its
decision on the sixth edition of the A.M.A., Guides.

11

The policy of OWCP is to round the calculated percentage of impairment to the nearest whole number. See
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3b (January 2010).
Fractions are rounded up from 0.50. See also J.P. Docket No. 08-832 (issued November 13, 2008); Richard A.
Neidert, 57 ECAB 563 (2006).
12

Id.

13

FECA Bulletin 09-03 (issued March 15, 2009, expired May 1, 2010); B.M., (Docket No. 09-2231, issued
May 14, 2010) (for decisions issued beginning May 1, 2009, the sixth edition will be used).
14

Id. FECA Bulletin 09-03 states, “Correspondence with treating physicians, consultants and second opinion
specialists should reflect the use of the new edition for decisions issued after May 1, 2009.” See Federal (FECA)
Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

5

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that she has more than 11 percent
impairment of the right upper extremity and 13 percent impairment of the left upper extremity,
for which she received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the April 28, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2011
Washington, DC

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

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

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

6