United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
Andersonville, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1292
Issued: December 28, 2009

Case Submitted on the Record

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

JURISDICTION
On April 20, 2009 appellant filed a timely appeal from the February 10, 2009 merit
decision of the Office of Workers’ Compensation Programs concerning his wage-earning
capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation effective
February 15, 2009 based on his capacity to earn wages as a car rental deliverer.
FACTUAL HISTORY
The Office accepted that on February 8, 2007 appellant, then a 58-year-old maintenance
worker, sustained a left shoulder rotator cuff tear, subacromial impingement and
acromioclavicular joint arthritis, due to carrying and handling a ladder at work. He stopped work
on May 28, 2007. On May 29, 2007 Dr. Ashok S. Reddy, an attending Board-certified

orthopedic surgeon, performed arthroscopic surgery on appellant’s left shoulder which was
authorized by the Office.1 Appellant did not return to work and he received wage-loss
compensation for periods of disability.
Appellant’s progress after his surgery was followed by Dr. Reddy. On November 9,
2007 Dr. Reddy found that appellant had good range of motion of his left shoulder and noted that
rotator cuff, supraspinatus and external rotators strength was Grade 4/5 throughout. He indicated
that appellant could not perform his regular job for the employing establishment but could
perform limited-duty work. Dr. Reddy recommended that appellant undergo a functional
capacity evaluation.
A functional capacity evaluation was performed on December 6, 2007 and the evaluator
found that appellant could perform medium-level tasks for eight hours per day, including lifting
40 pounds in a low-level lift, 30 pounds in a mid-level lift and 20 pounds in an overhead lift. On
December 14, 2007 Dr. Reddy advised that appellant could return to limited-duty work for eight
hours per day with no overhead lifting greater than 20 pounds.
In March 2008, appellant began participating in a vocational rehabilitation program. In
June 2008 the vocational rehabilitation counselor determined that, based on his experience,
education, medical restrictions and labor market survey, appellant was employable as a rental car
deliverer.2 The rehabilitation counselor found that appellant would not need additional training
to carry out the position in that his past work experience had adequately prepared him. Based on
a labor market survey, the rehabilitation counselor found that the rental car deliverer position
was performed in sufficient numbers within appellant’s commuting area to be considered
reasonably available. The average salary for the position was $360.00 per week. The position
involved delivering rental cars to customers after performing such tasks as cleaning the cars and
adding gasoline. The physical requirements of the position included occasionally exerting force
to 20 pounds, frequently exerting force to 10 pounds and engaging in standing, walking, pushing
and pulling.
In a July 29, 2008 letter, the Office advised appellant that the rental car deliverer position
was suitable to his restrictions and that he would receive 90 days of placement assistance to help
him locate work in such a position. The letter notified appellant that his compensation would be
reduced based upon the salary of this position at the end of these services. Appellant was not
placed in a position after 90 days of placement assistance. The rehabilitation counselor reported
that appellant felt that his physical condition precluded him from performing any work.
In a December 8, 2009 letter, the Office advised appellant that it proposed to reduce his
compensation based on his capacity to earn wages as a car rental deliverer. It provided him 30
days to submit evidence and argument challenging the proposed reduction of compensation.
1

Dr. Reddy performed a limited glenohumeral debridement of a labral tear, subacromial decompression with
bursectomy, ligament release and acromioplasty and arthroscopic resection of the acromioclavicular joint and distal
clavicle.
2

The rehabilitation counselor noted that the employing establishment reported that it had no work for appellant at
his prior worksite.

2

Appellant did not submit any evidence and argument challenging the proposed reduction of
compensation within the allotted time period.
In a February 10, 2009 decision, the Office reduced appellant’s compensation effective
February 15, 2009 based on his capacity to earn wages as a car rental deliverer.3
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.4 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity. If the actual earnings do not fairly and
reasonably represent wage-earning capacity, or if the employee has no actual earnings, his wageearning capacity is determined with due regard to the nature of his injury, his degree of physical
impairment, his usual employment, his age, his qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect his
wage-earning capacity in his disabled condition.6 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment
conditions.7 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.8
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in

3

The Office calculated the reduction in appellant’s compensation by considering such factors as the pay of the car
rental deliverer position and the current pay of his date-of-injury job.
4

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

7

Albert L. Poe, 37 ECAB 684, 690 (1986), David Smith, 34 ECAB 409, 411 (1982).

8

Id.

3

the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.9
ANALYSIS
The Office accepted that appellant sustained several left shoulder conditions, including a
rotator cuff tear, subacromial impingement and acromioclavicular joint arthritis, due to carrying
and handling a ladder at work. On May 29, 2007 Dr. Reddy, an attending Board-certified
orthopedic surgeon, performed arthroscopic surgery on appellant’s left shoulder.
The Office received information from Dr. Reddy indicating that appellant was not totally
disabled for work and had a partial capacity to perform work for eight hours per day subject to
specified work restrictions. On December 14, 2007 Dr. Reddy indicated that appellant could
return to limited-duty work for eight hours per day with no overhead lifting greater than 20
pounds. Appellant’s vocational rehabilitation counselor then determined that appellant was able
to perform the position of car rental deliverer and that state employment services showed the
position was available in sufficient numbers so as to make it reasonably available within
appellant’s commuting area. The physical requirements of the position included occasionally
exerting force to 20 pounds, frequently exerting force to 10 pounds and engaging in standing,
walking, pushing and pulling. The Office properly relied on the opinion of the rehabilitation
counselor that appellant was vocationally capable of performing the car rental deliverer position.
A review of the medical evidence reveals that appellant is physically capable of
performing the car rental deliverer position. The work restrictions recommended by Dr. Reddy
would allow appellant to perform the physical requirements of the position.10 Despite being
provided an opportunity to do so, appellant did not submit any evidence or argument showing
that he could not vocationally or physically perform the car rental deliverer position.
The Board finds that the Office considered the proper factors, such as availability of
suitable employment and appellant’s physical limitations, usual employment, age and
employment qualifications, in determining that the position of car rental deliverer represented his
wage-earning capacity.11 The weight of the evidence of record establishes that he had the
requisite physical ability, skill and experience to perform the position of car rental deliverer and
that such a position was reasonably available within the general labor market of his commuting
area. Therefore, the Office properly reduced appellant’s compensation effective February 15,
2009 based on his capacity to earn wages as a car rental deliverer.12
9

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).
10

There is no indication in the job description that the car deliverer position requires lifting more than 20 pounds
overhead.
11

See Clayton Varner, 37 ECAB 248, 256 (1985).

12

The Board notes that the Office properly calculated the reduction in appellant’s compensation by considering
such factors as the pay of the car rental deliverer position and the current pay of his date-of-injury job. See supra
note 9.

4

CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
February 15, 2009 based on his capacity to earn wages as a car rental deliverer.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 28, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Federal Way, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-513
Issued: June 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 5, 2015 appellant filed a timely appeal from a November 21, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established entitlement for wage-loss compensation
for the period October 1 through 3, 2014 due to her accepted occupational disease injury.
FACTUAL HISTORY
This case was previously before the Board. By decision dated May 12, 2014, the Board
remanded a July 3, 2013 OWCP merit decision which denied appellant’s claim for

1

5 U.S.C. § 8101 et seq.

reimbursement of travel expenses for medical treatment during the dates of July 8 to 9, 2013.2
OWCP had utilized an outdated travel regulation and the case was therefore remanded for
consideration under the new regulation. The Board further set aside the October 13, 2013
nonmerit decision denying appellant’s request for reconsideration as moot. The findings of fact
and conclusions of law from the prior decision are hereby incorporated by reference.
On July 11, 2011 appellant, then a 51-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome (CTS) and
osteoarthritis in the wrist and fingers as a result of her federal employment duties. OWCP
accepted the claim for bilateral hand osteoarthritis and bilateral trigger finger. Appellant sought
treatment with Dr. Kurt Anderson, a Board-certified hand and orthopedic surgeon. She received
wage-loss compensation for intermittent periods of disability beginning May 30, 2012.
On October 3, 2014 appellant filed a claim for compensation (Form CA-7) covering 80
hours of leave without pay used during the period September 20 to October 3, 2014. A time
analysis form was included to itemize her claim for compensation.
On September 24, 2014 Dr. Anderson performed revision of trigger finger, left hand
index finger. OWCP authorized the surgery.
In a September 24, 2014 Olympia Orthopedics Surgery Center Postoperative Instructions
report, appellant was advised that her next appointment with Dr. Anderson was scheduled for
October 7, 2014 at 9:15 a.m.
In a September 29, 2014 Form CA-17, Dr. Anderson restricted appellant from work due
to trigger finger. The date of examination was identified as September 24, 2014 and the date of
next appointment was noted as October 7, 2014.
In an October 9, 2014 narrative statement, appellant reported that she was off work
beginning September 23 to travel to Olympia, Washington for trigger finger release surgery on
September 24, 2014. She recuperated from her surgery at her home in Walla Walla, Washington
and then returned to Olympia on October 6, 2014 for an October 7, 2014 appointment to have
her stitches removed, resuming work on October 9, 2014.
In a Form CA-17 clearly dated October 7, 2014, Dr. Anderson released appellant to full
duty due to resolved trigger finger following his examination which has previously been noted to
have occurred on October 7, 2014.3

2

Docket No. 14-150 (issued May 12, 2014). On remand, by decision dated August 14, 2014, OWCP approved
reimbursement of travel expenses for medical treatment during the dates of July 8 to 9, 2013.
3

The record contains a Form CA-17 which appears to be dated October 1, 2014. However, upon inspection by
the Board, this particular copy of the Form CA-17 was distorted and blurred in the bronzing process (scanning into
digital format) so that the date could be read as October 1, 2014. The Board finds however that this Form CA-17 is
actually dated October 7, 2014. The Board’s finding is based on another copy of the same document in the record
which clearly is dated October 7, 2014, and is consistent with the other evidence of record including Dr. Anderson’s
release of appellant to full duty due to resolved trigger finger upon his examination dated October 7, 2014.

2

By letter dated October 17, 2014, OWCP approved disability compensation for the period
September 20 through 30, 2014 due to time off work for trigger finger release surgery. It relied
upon the CA-17 which it read as being dated October 1, 2014 to find that Dr. Anderson had
released appellant to full duty that date and therefore requested additional information with
regard to her claim for compensation for the remaining period subsequent to October 1, 2014.
OWCP provided her 30 days to submit the requested documentation.
On October 17, 2014 appellant filed a Form CA-7 claim for compensation for leave
without pay (LWOP) used during the period October 4 through 8, 2014. Her Time Analysis
Form (CA-7a) requested eight hours to cover LWOP used on October 4 due to “recuperation
from surgery,” eight hours for a doctor’s appointment in Olympia, Washington on October 7,
and eight hours for a doctor’s appointment in Walla Walla, Washington on October 8, 2014. On
October 21, 2014 OWCP approved the 24 hours of disability compensation for the period
October 4 through 8, 2014.
In an October 21, 2014 narrative statement, appellant stated that she was not released to
work until October 7, 2014, the date of her scheduled follow-up appointment with Dr. Anderson
to have her stitches removed.
In support of her claim, appellant resubmitted Dr. Anderson’s Form CA-17 and the
September 24, 2014 Olympia Orthopedics Surgery Center Postoperative Instructions report
which noted her next scheduled follow-up appointment as October 7, 2014. She also submitted
an appointment reminder note from Dr. Anderson’s office informing her of the October 7, 2014
appointment.
By decision dated November 21, 2014, OWCP denied appellant’s claim for wage-loss
compensation for the period October 1 through 3, 2014 finding that the medical evidence failed
to establish that she was disabled for the specific period claimed because she was released by
Dr. Anderson to full-duty work on October 1, 2014.4
LEGAL PRECEDENT
Under FECA,5 the term disability is defined as incapacity, because of employment injury,
to earn the wages that the employee was receiving at the time of injury.6 Disability is not
synonymous with a physical impairment which may or may not result in an incapacity to earn the
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nonetheless has the capacity to earn wages he or she was receiving at the time of
injury has no disability as that term is used in FECA.7
4

OWCP informed appellant that her claim for compensation for the period September 20 through October 3,
2014 totaled 80 hours. It approved 56 hours of disability compensation for the period September 20
through 30, 2014. The remaining 24 hours for the period October 1 through 3, 2014 were denied.
5

5 U.S.C. §§ 8101-8193.

6

See Prince E. Wallace, 52 ECAB 357 (2001).

7

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

3

Whether a particular injury causes an employee to be disabled and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative,
and substantial medical evidence.8 Findings on examination are generally needed to support a
physician’s opinion that an employee is disabled for work. The Board will not require OWCP to
pay compensation for disability without any medical evidence directly addressing the specific
dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.9
ANALYSIS
OWCP accepted that appellant developed bilateral hand osteoarthritis and bilateral trigger
finger as a result of her federal employment duties. It approved surgery for left trigger finger
release which occurred on September 24, 2014. Appellant claimed 80 hours of LWOP for the
period September 20 through October 3, 2014. OWCP approved 56 hours of disability
compensation for the period September 20 through 30, 2014. By decision dated November 21,
2014, it denied disability compensation for the remaining 24 hours consisting of leave from
October 1 through 3, 2014.
OWCP found that appellant was medically cleared to return to duty by Dr. Anderson on
October 1 or 7, 2014. Dr. Anderson’s September 29, 2014 Form CA-17 restricted appellant from
her work duties, noting the date of examination as September 24, 2014 and the date of next
appointment as October 7, 2014. The record also contains a September 24, 2014 Olympia
Orthopedics Surgery Center Postoperative Instructions report noting appellant’s next
appointment was scheduled for October 7, 2014, as well as an appointment reminder note for the
October 7, 2014 follow-up appointment with Dr. Anderson. There is no evidence of
Dr. Anderson examining appellant on October 1, 2014 or having been asked to opine as to her
work status on that date. Rather, the record establishes that appellant was not released to work
until after her scheduled postoperative appointment on October 7, 2014. The Board finds that
the Form CA-17 which OWCP read as being dated October 1, 2014, was in fact dated correctly
as October 7, 2014 and was merely illegible on the one copy due to the bronzing process.
The Board also notes that, while OWCP denied wage-loss compensation for October 1
through 3, 2014, it approved eight hours of wage-loss compensation for October 4, 2014, which
was noted on appellant’s Form CA-7a to be for “recuperation from surgery.”
Given the above evidence, the Board finds that Dr. Anderson did not release appellant to
full duty until her postoperative examination on October 7, 2014. As such, appellant has
established entitlement to disability compensation for the period October 1 to 3, 2014 as a result
of her accepted occupational disease injury.10

8

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

9

Id.

10

F.J., Docket No. 10-1303 (issued April 22, 2011).

4

CONCLUSION
The Board finds that appellant is entitled to wage-loss compensation for the period
October 1 through 3, 2014 as a result of her accepted occupational disease injury.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 10, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boise, ID, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-710
Issued: June 5, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 23, 2015 appellant filed a timely appeal from a July 28, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed from the last merit decision dated May 6, 2013 and the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the
Board lacks jurisdiction to review the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
501.3(e)-(f). One hundred and eighty days from July 28, 2014, the date of OWCP’s last decision was
January 24, 2015. As this was a Saturday, the appeal would be timely if received on the next business day, Monday,
January 26, 2015. Since using February 3, 2015, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is January 23, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was not timely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. On August 25, 1999 appellant, then a
46-year-old mail processor, filed a traumatic injury claim alleging that on August 22, 1999 he
injured his back when he tried to grab a tray of mail that slipped from his hand.
By decision dated June 5, 2001, the Board set aside November 1, 1999 and February 16,
2000 OWCP decisions denying appellant’s traumatic injury claim.3 The Board remanded the
case for further development of the medical evidence. On remand, OWCP accepted appellant’s
claim for a herniated disc at L4-5 and L5-S1 and authorized a November 15, 1999 discectomy.
On appeal to the Board for the second time, on February 7, 2005 the Board reversed a
December 24, 2003 decision terminating appellant’s compensation effective September 9, 2002.4
The Board found that he established a recurrence of total disability beginning September 9, 2002
and was entitled to compensation for four hours of wage loss from that date until he resumed
limited-duty employment on April 9, 2003. In a decision filed May 15, 2008, the Board reversed
a March 9, 2007 decision terminating appellant’s authorization for medical benefits effective
March 14, 2006.5 The Board found that the opinion of the impartial medical specialist was not
based on an accurate statement of accepted facts and thus was insufficient to resolve the conflict
in medical opinion. In an order dated March 5, 2010, the Board dismissed a purported appeal of
an April 7, 2009 decision after finding that there was no appealable decision within its
jurisdiction.6 The facts and the circumstances from the prior decisions and order are hereby
incorporated by reference.
In a decision dated May 6, 2013, OWCP reduced appellant’s compensation effective
May 10, 2013 after finding that he had the capacity to earn wages of $539.60 per week in the
selected positon of general clerk.
By letter dated February 25, 2014, appellant advised OWCP that he would be requesting
reconsideration and asked for a copy of a March 12, 2013 letter from the employing
establishment. He also requested copies of all letters from the employing establishment
regarding his claim.

3

Docket No. 00-2072 (issued June 5, 2001).

4

Docket No. 04-1283 (issued February 17, 2005).

5

Docket No. 07-2423 (issued May 15, 2008).

6

Order Dismissing Appeal, Docket No. 09-1668 (issued March 5, 2010).

2

In a response dated March 5, 2014, OWCP informed appellant that it was treating his
February 25, 2014 letter as a request for a copy of the case record rather than a reconsideration
request. On March 11, 2014 it provided him with a copy of the case record.
By letter dated May 10, 2014, appellant questioned why OWCP provided him with the
entire case record when he only asked for specific documents. He asserted that his request for
reconsideration was timely because the envelope accompanying the May 6, 2013 decision was
dated May 13, 2013. Appellant related that the size of the imaged record delayed his
reconsideration request.
On May 10, 2014 appellant requested reconsideration. He argued that OWCP based its
determination, that the positon of general clerk was not medically suitable, on medical evidence
from 2010 rather than on contemporaneous medical evidence. Appellant asserted that the
medical evidence documented that his condition had worsened prior to the wage-earning
capacity determination. He also argued that the positon of general clerk was not vocationally
suitable because he lacked the necessary proficiency with computers. Finally, appellant
contended that OWCP should have calculated his earning capacity based on entry level wages
rather than average wages.
In progress reports dated April 17 and May 16, 2014, Dr. James H. Bates, a Boardcertified physiatrist, diagnosed lumbosacral radiculopathy and back pain.
By decision dated July 28, 2014, OWCP denied appellant’s request for reconsideration
after finding that it was not timely filed and did not establish clear evidence of error.
On appeal appellant asserts that he cited specific errors in OWCP’s loss of wage-earning
capacity determination finding that he could work as a general clerk. He maintains that the
positon was not vocationally appropriate, that OWCP did not obtain a current medical opinion,
and that OWCP used inaccurate wage information. Appellant indicates that his request was
untimely because OWCP sent him too much information in response to his request for a copy of
a letter from the employing establishment.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.7 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.8 Section 10.511 of OWCP regulations provide that
if a formal loss of wage-earning capacity decision has been issued, the rating is left in place until
that determination is modified by OWCP. Modification is only warranted where the party
seeking modification establishes a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original

7

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

8

Sharon C. Clement, 55 ECAB 552 (2004).

3

determination was, in fact, erroneous.9 The burden of proof is on the party attempting to show a
modification of the wage-earning capacity determination.10 In addition, Chapter 2.1501 of
OWCP procedures contains provisions regarding the modification of a formal loss of wageearning capacity.11
ANALYSIS
The Board finds that the case is not in posture for decision. In a decision dated May 6,
2013, OWCP reduced appellant’s compensation effective May 10, 2013 based on its finding that
he had the capacity to work in the selected positon of general clerk earning wages of $539.60 per
week. On May 10, 2014 appellant requested reconsideration, arguing that the positon was not
vocationally suitable, that OWCP should have obtained a more recent medical opinion, and that
it incorrectly determined the weekly wages he could earn in the position.
It is well established that a claimant may establish that a modification of a wage-earning
capacity is warranted if there is a material change in the nature and extent of an injury-related
condition, or a showing that the original determination was, in fact, erroneous.12 Although
appellant used the term reconsideration in his May 10, 2014 correspondence, he contended that
OWCP committed error in its wage-earning capacity. The Board finds that the May 10, 2014
letter from appellant constitutes a request for modification of the May 6, 2013 loss of wageearning capacity determination.13 The Board has held that, when a loss of wage-earning capacity
determination has been issued and appellant submits evidence with respect to one of the criteria
for modification, OWCP must evaluate the evidence to determine if modification of wageearning capacity is warranted.14 In its July 28, 2014 decision, however OWCP evaluated his
request under the clear evidence of error standard applicable to untimely requests for
reconsideration. The Board consequently remands the case to OWCP for proper adjudication, to
be followed by a de novo decision.
CONCLUSION
The Board finds that OWCP should have adjudicated appellant’s May 10, 2014 request
for reconsideration under the modification of loss of wage-earning capacity standard.

9

20 C.F.R. § 10.511.

10

See Stanley B. Plotkin, 51 ECAB 700 (2000).

11

Federal (FECA) Procedure Manual, Chapter 2 -- Claims, Modification of Loss of Wage-Earning Capacity,
Chapter 2.1501 (June 2013).
12

20 C.F.R. § 10.511; see P.C., 58 ECAB 405 (2007).

13

See E.L., Docket No. 14-1434 (issued March 18, 2015); M.N., Docket No. 10-51 (issued July 8, 2010).

14

See W.W., Docket No. 09-1934 (issued February 24, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the July 28, 2014 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: June 5, 2015
Washington, DC

Christopher J. Godfrey, Chief 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
__________________________________________
S.N., Appellant
and
U.S. POSTAL SERVICE, DEERFIELD POST
OFFICE, Deerfield, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1018
Issued: November 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 9, 2019 appellant filed a timely appeal from a March 22, 2019 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 to
consider the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $611.50 for the period December 24, 2018 through January 5, 2019; and (2) whether
OWCP properly found appellant at fault in the creation of the overpayment, thereby precluding
waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 39-year-old part-time mail carrier, has an accepted traumatic injury claim
(Form CA-1) for a left ankle sprain/strain, which arose from a fall on September 28, 2018 while
in the performance of duty. On the reverse side of the claim form, the employing establishment
indicated that she stopped work on September 25, 2018.
On November 28, 2018 appellant submitted a claim for compensation (Form CA-7) for
leave without pay (LWOP) for total disability for the period November 13 through 23, 2018. On
the reverse side of the Form CA-7, the employing establishment indicated that she worked a
nonregular, as needed schedule, at a base pay rate of $17.78 per hour. The employing
establishment also indicated that appellant’s salary the prior year was $33,197.21, averaging
$638.40 per week. Based on this information, OWCP calculated that she worked an average of
35.9 hours per week.
OWCP placed appellant on the supplemental compensation rolls for the period
November 13 through December 10, 2018. For the period December 9, 2018 through January 5,
2019, it paid wage-loss compensation for temporary total disability on the periodic rolls.
In a letter dated December 10, 2018, (CA-1049), OWCP advised that appellant had been
placed on the periodic rolls and outlined her entitlement to compensation benefits and her
responsibility to return to work in connection with the accepted injury. It advised, “[i]f your
physician advises you that you are able to perform some type of work, you are also expected to
report this to OWCP.” In an attached EN1049, OWCP further provided:
“To minimize the possibility of an overpayment of compensation, NOTIFY THIS
OFFICE IMMEDIATELY WHEN YOU GO BACK TO WORK. If you receive your
compensation payments via paper check, the payment shows the period for which
payment is made. If you have worked for any portion of this period, return the
payment to this office, even if you have already advised OWCP that you are
working. For payments sent by electronic funds transfer (EFT), a notification of
the date and amount of payment appears on the statement from your financial
institution. You are expected to monitor your EFT deposits carefully, at least every
2 weeks. If you have worked for any portion of the period for which a deposit was
made, advise OWCP immediately so that the overpayment can be collected.”
(Emphasis in the original.)
In a December 20, 2018 medical report, Dr. Mark Levin, a Board-certified sports medicine
specialist and orthopedic surgeon, indicated that appellant’s left ankle sprain was heeling, and
recommended additional therapy. He noted that she was capable of returning to work with
restrictions, and scheduled a follow-up in one month. In a duty status report (Form CA-17),
Dr. Levin indicated that appellant could return to work on December 20, 2018 with restrictions
against climbing stairs and lifting more than 50 pounds. He also restricted her from any climbing
and limited her walking to five to six hours per day.

2

On January 5, 2019 OWCP made a temporary total disability payment to appellant for the
period December 9, 2018 through January 5, 2019 via direct deposit (electronic fund transfer) in
the amount of $1,915.23.
In a January 8, 2019 follow-up report, Dr. Levin noted that appellant had been attending
physical therapy, but that she reported that her ankle felt worse. Appellant reported that she had
been working, but that the employing establishment wanted her to climb stairs. Dr. Levin
reiterated that she could work without stair climbing, and that she could lift a maximum of
50 pounds. In an accompanying duty status report (Form CA-17), he diagnosed an ankle sprain
and indicated that appellant could return to work with restrictions.
In a January 22, 2019 telephone call, the employing establishment advised OWCP that
appellant returned to work on December 24, 2018.
A time analysis form (Form CA-7a) submitted by the employing establishment indicated
that appellant worked: 4.55 hours on December 24, 2018; 3.40 hours on December 27, 2018;
5.15 hours on December 29, 2018; 2.53 hours on December 30, 2018; 4.35 hours on December 31,
2018; 8.63 hours on January 2, 2019; and 5.73 hours on January 3, 2019. The employing
establishment further related that appellant took LWOP for 2.75 hours on December 31, 2018, and
that she received 16 hours of holiday pay between December 25, 2018 and January 1, 2019. It
calculated that the gross amount paid was $837.50.
By letter dated February 20, 2019, OWCP advised appellant of its preliminary
determination that she had received a $611.50 overpayment of compensation because she paid
total disability compensation for the period December 24 2018 through January 5, 2019 and during
this time she had returned to part-time modified work. It also made a preliminary finding that she
was at fault in the creation of the overpayment because she had accepted payments that she knew,
or reasonably should have known, to be incorrect. OWCP found that appellant received
compensation benefits in the amount of $889.21 for the period December 24, 2018 through
January 5, 2019. It calculated that $1,915.23 divided by 28 (the number of days in the pay period)
multiplied by 13 (the number of days she worked during the pay period) = $889.21. OWCP noted
that appellant’s pay rate when injured was $638.41 per week, and determined that her
wage-earning capacity was $450.96 weekly. It calculated $450.96 by dividing appellant’s actual
earnings for the period ($837.50) by 13 and then multiplying by 7 ($837.50/13 x 7 = $450.96).
Then, taking her wage earning capacity ($450.96) and dividing by the pay rate when injured
($638.41), OWCP determined her wage-earning capacity percentage was 71 percent which when
multiplied by the pay rate salary ($638.41), yielded a wage-earning capacity amount of $453.27.
To determine the loss of wage-earning capacity (LWEC), it subtracted the wage-earning capacity
amount ($453.27) from appellant’s weekly pay rate when injured ($638.41) to find a LWEC of
$185.14 per week. OWCP then multiplied the LWEC, $185.14, by the total disability percentage
that she was entitled to, 75 percent to determine that her weekly compensation amount was
$138.85. It determined that appellant was entitled to receive compensation in the amount of
$277.71 for the period December 24, 2018 through January 5, 2019. When OWCP deducted
$277.71 from the $889.21 in disability compensation that she was paid for the period, this resulted
in an overpayment of $611.50. It advised appellant that she could submit evidence challenging
the fact, amount, or finding of fault, and request waiver of recovery of the overpayment.
Additionally, OWCP informed her that, within 30 days, she could request a telephone conference,

3

a final decision based on the written evidence, or a prerecoupment hearing. It requested that
appellant complete the overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documentation. OWCP afforded her 30 days for a response.
In the returned overpayment recovery questionnaire (Form OWCP-20) dated March 5,
2019, appellant stated that she thought the incorrect payment was due to her, “because my job only
paid for Monday for next Friday because I only work on Monday, but the rest of the days they
have me off.” She requested a waiver of recovery of the overpayment on the grounds that, “[w]hen
I started working, my job contact you all and you all know how much I was get[ting] before I did
and therefore I only got pa[id] only for Monday, when I started working.” Appellant did not
challenge the calculation of the overpayment.
By decision dated March 22, 2019, OWCP finalized the overpayment of compensation in
the amount of $611.50 for the period December 24, 2018 through January 5, 2019. It determined
that appellant was at fault in the creation of the overpayment as she accepted compensation
payments which she knew or should have known were incorrect. OWCP requested installment
payments of $50.00 per month for 13 months.
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.2 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.3
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.4 OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation.5
ANALYSIS -- ISSUE 1
The Board finds that an overpayment of compensation was created.
OWCP accepted appellant’s claim and paid wage-loss compensation, placing her on the
periodic compensation rolls. The record establishes that appellant returned to work on
2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

Id. at § 8116(a).

5

B.H., Docket No. 09-0292 (issued September 1, 2009).

4

December 24, 2018 and worked 4.55 hours on December 24, 2018; 3.40 hours on December 27,
2018; 5.15 hours on December 29, 2018; 2.53 hours on December 30, 2018; 4.35 hours on
December 31, 2018; 8.63 hours on January 2, 2019; and 5.73 hours on January 3, 2019. The sum
total of the daily hour calculations indicates that she worked 34.34 hours between December 24,
2018 and January 5, 2019.6 The employing establishment further related that appellant received
16 hours of holiday pay, split evenly between December 25, 2018 and January 1, 2019. The
employing establishment calculated that the gross amount paid to her was $837.50 for the period
December 24, 2018 through January 5, 2019. This resulted in an overpayment of compensation,
as appellant received total disability compensation during the same time period.7 She was not
entitled to receive temporary total disability benefits and actual earnings for the same time period.8
With regard to the amount of overpayment, OWCP found an overpayment of compensation
in the amount of $611.50 for the period December 24, 2018 through January 5, 2019.
In its overpayment determination, OWCP calculated the amount of the overpayment by
taking the amount of total disability compensation received for the 13-day period December 24,
2018 and January 5, 2019, $889.21, and then subtracted $277.71 for wage-loss compensation that
appellant would have been entitled to for that 13-day period. After review, the Board finds that
the amount of wage-loss disability compensation that she was entitled to, $277.71, was calculated
incorrectly.
OWCP correctly determined appellant’s weekly LWEC, $185.14, multiplied by 75 percent
was $138.85. Dividing this amount of weekly compensation that appellant was entitled to for
LWEC, $138.85, by 7 ($138.85/7 = $19.84) and multiplying by 13 (the amount of days during the
period worked) yields a wage-loss compensation amount of $257.86, not $277.71. During the
Board’s review of the record, the Board discovered that OWCP incorrectly multiplied $19.84 by
14, rather than 13, to arrive at $277.71 ($138.85/7 x 14 = $277.71). After correction for this error,
the overpayment amount is $631.35 ($889.21 – $257.86 = $631.35). The Board therefore finds
that an overpayment amount of $631.35 has been established for the period December 24, 2018
through January 5, 2019.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides as follows that adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of this subchapter or would be

6

The employing establishment indicated that appellant worked a total of 34.42 hours; however, this figure does not
match the sum total of the hours added together as listed on the Form CA-7a.
7

K.L., Docket No. 16-1490 (issued May 26, 2017).

8

Id.

5

against equity and good conscience.9 No waiver of an overpayment is possible if the claimant is
at fault in creating the overpayment.10
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; (2) failed to furnish information which the
individual knew or should have known to be material; or (3) with respect to the overpaid individual
only, accepted a payment which the individual knew or should have been expected to know was
incorrect.11
With respect to whether an individual is without fault, section 10.433(b) of OWCP
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.12
ANALYSIS -- ISSUE 2
OWCP 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 she was without fault with regard to OWCP’s first direct deposit following her return
to part-time work.13
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
he or she knew or should have known that the payment was incorrect.14 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 his or her account since the acceptance of the overpayment,
at the time of receipt of the direct deposit, lacks the requisite knowledge.15 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.16 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
9

5 U.S.C. § 8129(b).

10

C.L., Docket No. 19-0242 (issued August 5, 2019).

11

20 C.F.R. § 10.433(a).

12

Id. at § 10.433(b).

13

J.S., Docket No. 17-0260 (issued December 28, 2017).

14

See Claude T. Green, 42 ECAB 174, 278 (1990).

15

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

16

Id.

6

overpayment.17 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.18
The record establishes that for the overpayment period, December 9, 2018 through
January 5, 2019, appellant received compensation by direct deposit payments every 28 days. She
received a partial overpayment for the 28-day pay period December 9, 2018 through
January 5, 2019, having returned to part-time work beginning December 24, 2018. This was an
overpayment because appellant was improperly paid wage-loss compensation for total disability
without adjustment for actual wages earned from December 24, 2018 through January 5, 2019.
The funds were directly deposited into her account via direct deposit on January 5, 2019.
The Board finds that appellant was without fault for the initial direct deposit of the paid
amount into her account for the December 9, 2018 through January 5, 2019 overpayment period.19
Although, appellant accepted the overpayment at the time it was deposited into her account,
OWCP has not shown that she knew or should have known at the time of the deposit that the
payment was incorrect.20 She had no reason to suspect at the time of the January 5, 2019 deposit
that OWCP had issued an incorrect payment since this was the first incorrect payment made.
Additionally, appellant was entitled to some wage-loss compensation for total disability for the
period December 9, 2018 through January 5, 2019 and thus the circumstances surrounding the
overpayment were more complex than usual.21 As such, the Board finds that she was not at fault
in either creating or accepting the overpayment for the period December 24, 2018 through
January 5, 2019.22 A finding of no fault does not mean, however, that appellant may keep the
initial payment amount; only that OWCP must consider eligibility for waiver for this period, and
the case must be remanded for OWCP to determine whether she is entitled to waiver of recovery
for this portion of the overpayment.23
The Board finds that this case is not in posture for decision regarding the issue of waiver
of the recovery of the overpayment for the period December 24, 2018 through January 5, 2019.

17

Id.; see also K.D., Docket No. 13-0451 (issued April 12, 2013).

18

See K.H., Docket No. 06-0191 (issued October 30, 2006).

19

J.S., Docket No. 12-1707 (issued June 10, 2013).

20

See also C.K., Docket No. 12-0746 (issued May 1, 2012).

21

See W.B., Docket No. 09-1440 (issued April 12, 2010).

22

J.S., Docket No. 17-0260 (issued December 28, 2017).

23

Id.

7

The Board will remand the case for OWCP to determine whether appellant is entitled to waiver of
recovery of the overpayment created for this period.24
CONCLUSION
The Board finds that OWCP correctly determined that an overpayment of compensation
for the period December 24, 2018 through January 5, 2019 was created. The Board further finds
that the amount of the overpayment is affirmed, as modified, in the amount of $631.35. Finally,
the Board finds that appellant was without fault in the creation of the overpayment for the period
December 24, 2018 through January 5, 2019. The case is remanded to determine whether waiver
of recovery is warranted.
ORDER
IT IS HEREBY ORDERED THAT the March 22, 2019 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: November 12, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

24

Id.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.V., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE &
ACCOUNTING SERVICE, Indianapolis, IN,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1604
Issued: February 4, 2011

Case Submitted on the Record

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

JURISDICTION
On June 1, 2010 appellant filed a timely appeal of a May 10, 2010 Office of Workers’
Compensation Programs’ merit decision denying his traumatic injury. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury on February 25, 2010 as alleged.
FACTUAL HISTORY
On March 26, 2010 appellant, then a statistical business processes analyst, filed a
traumatic injury claim alleging injury to his right knee, hand and ribs on February 25, 2010 when
he slipped and fell in the performance of duty. He reported his injury to his supervisor on
February 25, 2010 and lost no time from work. The Office requested additional factual and
medical evidence by letter dated March 30, 2010 and allowed appellant 30 days for a response.

Dan Short, a registered nurse, submitted appellant’s health unit notes dated
February 25, 2010. They reflect a history that appellant slipped and fell landing on his right knee
and hand. Appellant had a scrape below his kneecap which Mr. Short treated with antibiotic
ointment and a bandage. He subsequently reported right knee discomfort and right rib
discomfort on March 24, 2010 with bruising and discoloration. Mr. Short stated on March 29,
2010 that appellant’s x-rays revealed a hairline fracture of the right rib cage.
Appellant submitted x-ray studies from Dr. Alan S. Ray, a Board-certified radiologist,
dated March 26, 2010. He found a normal left knee and a small acute incomplete fracture of the
right seventh lateral rib. Dr. Norman L. Fogle, a Board-certified family practitioner, noted on
March 26, 2010 that appellant fell at work injuring his right knee and rib area. He diagnosed
knee injury work related and rib pain work related. On April 9, 2010 Dr. Fogle reexamined
appellant’s knee and ribs. He diagnosed prediabetes, hyperlipidemia, obesity, sleep apnea,
migraines, back pain, conjunctivitis, sinusitis and pharyngitis. Dr. Fogle stated that appellant had
a resolved fracture of the right rib and knee.
By decision dated May 10, 2010, the Office denied appellant’s claim finding that he
failed to submit sufficient medical evidence to establish that he sustained an injury on
February 25, 2010 as alleged.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employee’s Compensation Act1 has the
burden of establishing the essential elements of his or her claim by the weight of the reliable,
probative and substantial evidence, including the fact that the individual is an “employee of the
United States” within the meaning of the Act and that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
The Office defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”3 In order to
determine whether an employee actually sustained an injury in the performance of duty, the
Office begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components which must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident which is alleged to have occurred.4 The second component is whether the employment
incident caused a personal injury and generally can be established only by medical evidence. A
1

5 U.S.C. §§ 8101-8193.

2

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

3

20 C.F.R. § 10.5(ee).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

2

medical report is of limited probative value on a given medical question if it is unsupported by
medical rationale.5 Medical rationale includes a physician’s rationalized opinion on the issue of
whether these is a causal relationship between the claimant’s diagnosed condition and the
implicated employment activity. The opinion of the physician must be based on a complete
factual and medical background of the claim, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and specific employment activity or factors identified by the claimant.6
ANALYSIS
The Office accepted the claimed incident of a fall on February 25, 2010 in the
performance of duty at the time, place and in the manner alleged. The issue is whether the fall at
work on February 25, 2010 caused an injury. The Office denied appellant’s claim finding that
the evidence of record did not support a medical condition resulting from the incident. The
Board notes, however, that the employing establishment clinic provided a diagnosis of an
abrasion on appellant’s right knee, which was treated with antibiotic ointment and a bandage.
Although causal relationship generally requires a rationalized medical opinion, the Office may
accept a case with a medical report when one or more of the following criteria, as set forth in the
Office’s procedure manual,7 are satisfied:
“(a) The condition reported is a minor one which can be identified on visual
inspection by a lay person (e.g., burns, lacerations, insect sting or animal bite);
“(b) The injury was witnessed or reported promptly and no dispute exists as to the
fact of injury; and
“(c) No time was lost from work due to the disability.”
The condition reported, a knee abrasion, meets the first criteria as the type of condition
that is minor and can be identified by a layperson.8 The record establishes that appellant
promptly reported his fall to his employer and was seen at the employing establishment health
unit. He did not claim wage-loss compensation. The Board finds that a medical report is not
necessary to establish a traumatic injury in this case and that the claim can be accepted for a right
knee abrasion.
As to appellant’s claim for additional injuries resulting from the February 25, 2010
employment incident, the Board finds that the medical evidence of record is not sufficient to
meet his burden of proof. He alleged that he sustained injury to his right hand and an incomplete
5

T.F., 58 ECAB 128 (2006).

6

A.D., 58 ECAB 149 (2006).

7

Jussara L. Arcanjo, 55 ECAB 281 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3d(1)(a), (c) (June 1995).
8

Nurses are not physicians under the Act and are not competent to render a medical opinion. G.G., 58 ECAB
389 (2007). Therefore, Mr. Short’s notes are not medical evidence and cannot establish appellant’s claim for an
injury beyond the abrasion of his right knee accepted by the Board in this case.

3

fracture of his seventh right lateral rib. The medical evidence in the record consists of reports
from Dr. Fogle dated March 26 and April 9, 2010, indicating that appellant fell at work injuring
his right knee and rib area. He diagnosed work-related knee and rib pain. The Board generally
has held that the diagnosis of pain is not a specific diagnosis such as to support basis for payment
of compensation.9 Dr. Fogle did not provide any further explanation of appellant’s condition.
His diagnosis of pain is not sufficient to meet appellant’s burden of proof in establishing a
traumatic injury.
In an April 9, 2010 note, Dr. Fogle merely stated that appellant had a resolved fracture of
the right rib and knee. He did not provide a history of injury or address whether appellant’s
fracture of the knee and rib was work related. There is no explanation in support of Dr. Fogle’s
conclusion.
The Board notes that appellant’s left knee was x-rayed on March 26, 2010 and that this
report does not offer any evidence regarding his alleged right knee condition. The March 26,
2010 report from Dr. Ray regarding appellant’s right seventh lateral rib does not provide any
history of injury or medical opinion explaining how the rib condition was related to the
February 25, 2010 employment injury.
CONCLUSION
The Board finds that appellant sustained a right knee abrasion on February 25, 2010 in
the performance of duty. The Board further finds that he did not establish any other medical
condition arising from the February 25, 2010 employment injury.

9

Robert Broome, 55 ECAB 339 (2004); Thomas A. Faber, 50 ECAB 566 (1999); Samuel Senkow, 50 ECAB
370 (1999).

4

ORDER
IT IS HEREBY ORDERED THAT the May 10, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified to accept a right knee abrasion.
Issued: February 4, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
ACCOUNTING & FINANCE SERVICE,
Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1147
Issued: July 18, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 10, 2013 appellant filed a timely appeal from the March 15, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $1,865.19 overpayment of
compensation; (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment; and (3) whether it properly required repayment of the overpayment by deducting
$80.00 from appellant’s compensation payments every four weeks.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on July 25, 1990 appellant, then a 44-year-old cost accountant,
sustained several lumbar conditions, including a sprain, degenerative disc disease,
postlaminectomy syndrome and right radiculopathy. Appellant stopped work in December 1992
and received compensation for disability.
On December 12, 2012 OWCP was notified that appellant began to receive Social
Security Administration (SSA) old-age retirement benefits effective December 1, 2011 which
were subject to a Federal Employees Retirement System (FERS) offset. The record contains
documents showing that OWCP failed to offset these amounts for the period December 1, 2011
to December 15, 2012 in the total amount of $1,865.19.
In a December 21, 2012 notice, OWCP advised appellant of its preliminary determination
that he received a $1,865.19 overpayment of compensation for the period December 1, 2011 to
December 15, 2012 due to OWCP’s failure to conduct a proper FERS offset for SSA benefits he
received. It also made a preliminary determination that he was not at fault in the creation of the
overpayment. OWCP advised appellant that he could submit evidence challenging the fact,
amount, or finding of fault and request waiver of the overpayment. It informed him that he could
submit additional evidence in writing or at prerecoupment hearing, but that a prerecoupment
hearing must be requested within 30 days of the date of the written notice of overpayment.
OWCP requested that appellant complete and return an enclosed financial information
questionnaire within 30 days even if he was not requesting waiver of the overpayment.
Appellant requested a waiver of recovery of the claimed overpayment and in a completed
financial information questionnaire received on January 22, 2012 he indicated that he had
$3,043.00 in monthly income, $2,819.00 in monthly expenses and $655.58 in assets. He
submitted a number of financial documents supporting these figures.
In a March 15, 2013 decision, OWCP determined that appellant received a $1,865.19
overpayment of compensation. It found that he was not at fault in the creation of the
overpayment but that the overpayment was not subject to waiver. OWCP noted that waiver was
not warranted because appellant’s monthly income exceeded his monthly expenses by about
$224.00. It required repayment of the overpayment by deducting $80.00 from his compensation
payments every four weeks. OWCP considered appellant’s financial circumstances in reaching
this determination.

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 his duty.2 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”3
Section 8116(d)(2) of FECA4 provides for limitations on the right to receive
compensation and states in pertinent part:
“(d) Notwithstanding the other provisions of this section, an individual receiving
benefits for disability or death under this subchapter who is also receiving benefits
under [S]ubchapter [3] of [C]hapter 84 of this title or benefits under [T]itle [2] of
the [SSA] shall be entitled to all such benefits, except that --”
***
“(2) in the case of benefits received on account of age or death
under title [2] of the [SSA,] compensation payable under this
subchapter based on the [f]ederal service of an employee shall be
reduced by the amount of any such social security benefits
payable that are attributable to [f]ederal service of that employee
covered by [C]hapter 84 of this title.”5
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $1,865.19 overpayment of compensation. On
December 12, 2012 OWCP was notified that he began to receive SSA old-age retirement
benefits effective December 1, 2011 which were subject to a FERS offset. It was obligated by
law to perform a FERS offset. The record contains documents showing that OWCP failed to
offset these amounts for the period December 1, 2011 to December 15, 2012 in the total amount
of $1,865.19. Therefore, it properly determined that appellant received a $1,865.19 overpayment
of compensation.

2

Id. at § 8102(a).

3

Id. at § 8129(a).

4

Id. at § 8116(d)(2).

5

Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.11(a)(b)
(January 1997); FECA Bulletin No. 97-9 (issued February 3, 1997) (the portion of SSA benefits earned as a federal
employee is part of the FERS retirement package and the receipt of FECA benefits concurrently with federal
retirement is a prohibited dual benefit).

3

LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within its discretion pursuant to statutory guidelines.6 These statutory guidelines are
found in section 8129(b) of FECA which states: “Adjustment or recovery [of an overpayment]
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”7 If OWCP finds a claimant to be
without fault in the matter of an overpayment, then, in accordance with section 8129(b), it may
only recover the overpayment if it determined that recovery of the overpayment would neither
defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.8 According to 20 C.F.R. § 10.437,
recovery of an overpayment is considered to be against equity and good conscience when an
individual who received an overpayment would experience severe financial hardship attempting
to repay the debt and when an individual, in reliance on such payments or on notice that such
payments would be made, gives up a valuable right or changes his position for the worse.9 To
establish that a valuable right has been relinquished, it must be shown that the right was in fact
valuable, that it cannot be regained and that the action was based chiefly or solely in reliance on
the payments or on the notice of payment.10
ANALYSIS -- ISSUE 2
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because he has not shown both that he needs substantially all of his current income to
meet ordinary and necessary living expenses and that his assets do not exceed the allowable
resource base. He indicated that he had $3,043.00 in monthly income and $2,819.00 in monthly
expenses. Therefore, appellant’s monthly income exceeds his monthly ordinary and necessary
expenses by approximately $224.00. As his current income exceeds his current ordinary and
necessary living expenses by more than $50.00 he has not shown that he needs substantially all
6

See Robert Atchison, 41 ECAB 83, 87 (1989).

7

5 U.S.C. § 8129(b).

8

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio
Martinez, 55 ECAB 245 (2004). OWCP procedures provide that assets must not exceed a resource base of
$4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6(a) (October 2004).
9

20 C.F.R. § 10.437(a), (b).

10

Id. at § 10.437(b)(1).

4

of his current income to meet current ordinary and necessary living expenses.11 Because
appellant has not met the first prong of the two-prong test of whether recovery of the
overpayment would defeat the purpose of FECA, it is not necessary for OWCP to consider the
second prong of the test, i.e., whether appellant’s assets do not exceed the allowable resource
base.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because he has not shown, for the reasons noted above, that he
would experience severe financial hardship in attempting to repay the debt or that he
relinquished a valuable right or changed his position for the worse in reliance on the payment
which created the overpayment.12
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, he has failed to show that
OWCP abused its discretion by refusing to waive the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provide in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”13
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the overpayment by deducting $80.00
from appellant’s compensation payments every four weeks, OWCP took into consideration the
financial information submitted by appellant as well as the factors set forth in section 10.441 and
found that this method of recovery would minimize any resulting hardship on appellant.
Therefore, OWCP properly required repayment of the overpayment by deducting $80.00 from
appellant’s compensation payments every four weeks.14

11

See supra note 8.

12

See William J. Murphy, 41 ECAB 569, 571-72 (1989).

13

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

14

On appeal, appellant indicated that his financial circumstances had changed and had affected his ability to
repay the overpayment. However, the Board cannot consider such financial evidence for the first time on appeal.
See 20 C.F.R. § 501.2(c).

5

CONCLUSION
The Board finds that appellant received a $1,865.19 overpayment of compensation. The
Board further finds that OWCP did not abuse its discretion by refusing to waive recovery of the
overpayment and OWCP properly required repayment of the overpayment by deducting $80.00
from appellant’s compensation payments every four weeks.
ORDER
IT IS HEREBY ORDERED THAT the March 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 18, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, ROSELAND POST
OFFICE, Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-2007
Issued: May 21, 2010

Case Submitted on the Record

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

JURISDICTION
On July 28, 2009 appellant filed a timely appeal from a February 3, 2009 decision of the
Office of Workers’ Compensation Programs regarding a schedule award. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.1
ISSUE
The issue is whether appellant sustained more than a 20 percent impairment of the lower
extremities, for which she received a schedule award.
On appeal, appellant contends that the Office did not include all her lower extremity
impairments in determining the February 3, 2009 schedule award. She asserts that bilateral hip
1

The record contains a January 22, 2009 decision denying a schedule award for the upper extremities and a
May 13, 2009 decision of the Office’s Branch of Hearings and Review vacating the January 22, 2009 decision. The
Office found the issue not in posture for a decision due to a conflict of medical opinion. Appellant did not appeal
from the January 22 and May 13, 2009 decisions. As the upper extremity schedule award issue in an interlocutory
position, the Board duly has jurisdiction of the lower extremity schedule award.

weakness, lumbar radiculitis, possible deep venous thrombosis in the right leg and several
accepted injuries caused additional impairments.2
FACTUAL HISTORY
The Office accepted that on or before March 28, 2005 appellant, then a 48-year-old
schemed distribution mail processing clerk, sustained a herniated C5-6 disc, lumbar strain and
right rotator cuff tear due to repetitive lifting and bending while handling mail. It also accepted a
bilateral hip strain/sprain and an aggravation of osteoarthritis of both hips. Appellant stopped
work in May 2005 and did not return.
Appellant submitted medical reports dated April 14, 2005 through July 14, 2008 from
Dr. Samuel J. Chmell, an attending Board-certified orthopedic surgeon,3 who diagnosed lumbar
disc derangement and lumbar degenerative disc disease. On May 30, 2006 Dr. Chmell
diagnosed a bilateral traumatic hip strain. He diagnosed right-sided lumbar sciatica and rightsided radiculopathy on June 27, 2006. In an October 24, 2006 report, Dr. Chmell noted lumbar
and bilateral hip weakness and diagnosed a herniated lumbar disc and bilateral hip sprain/strain.
On June 20, 2008 appellant claimed a schedule award. The Office requested that
Dr. Chmell submit an impairment rating utilizing the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides).
On November 19, 2008 Dr. Chmell diagnosed bilateral hip strains and aggravation of
osteoarthritis of both hips. According to Tables 17-84 and 17-95 of the A.M.A., Guides,
appellant had 57 percent impairment to each leg due to restricted motion and weakness. In
attached worksheets, Dr. Chmell noted the following measurements for the right and left hips,
respectively: 75 and 65 degrees forward flexion; 20 and 25 degrees extension; 10 and 10 degrees
abduction; 0 and 0 degrees adduction; 5 and 0 degrees internal rotation; 15 and 10 degrees
external rotation. He opined that, according to Table 17-9, these limitations equaled 10 percent
impairment for moderate restriction of bilateral hip motion. Referring to Table 17-8, Dr. Chmell
also assessed 47 percent impairment to each hip due to weakness, as follows: 5 percent for
diminished flexion; 17 percent for diminished extension; and 25 percent for diminished

2

Appellant has several prior accepted claims: File No. xxxxxx273 for September 8, 1978 face, scalp, neck and
right shoulder contusions; File No. xxxxxx089 and xxxxxx159 for December 20, 2001 lower extremity injuries; File
No. xxxxxx608 for a December 8, 2004 umbilical hernia; File No. xxxxxx055 for bilateral carpal tunnel syndrome
and right radial styloid tenosynovitis; File No. xxxxxx827 for a chronic respiratory condition. On December 15,
2006 the Board issued a decision under Docket No. 06-1980 regarding the respiratory condition and on April 7,
2009 issued an Order Remanding Case under Docket No. 08-962 to double two hernia claims. These claims are not
before the Board on the present appeal.
3

Appellant also submitted imaging results. October 18, 2001 x-rays showed minimal osteophytes of both hips
likely related to childbirth trauma. December 16, 2003 bilateral hip x-rays showed no arthritis. A May 4, 2005
lumbar magnetic resonance imaging (MRI) scan was normal.
4

Table 17-8, page 532 of the fifth edition of the A.M.A., Guides is entitled “Impairment Due to Lower Extremity
Muscle Weakness.”
5

Table 17-9, page 537 of the fifth edition of the A.M.A., Guides is entitled “Hip Motion Impairment.”

2

abduction. He found that appellant had reached maximum medical improvement as of
August 28, 2008.
On November 26, 2008 the Office referred Dr. Chmell’s opinion to an Office medical
adviser for calculation of the percentage of permanent impairment. On December 8, 2008 an
Office medical adviser concurred that appellant had a 10 percent impairment of each lower
extremity due to restricted hip motion according to Table 17-9. He explained, however, that
according to paragraph 1, page 508 of the A.M.A., Guides,6 decreased motion and weakness
cannot be rated conjunctively in the same region. Therefore, Dr. Chmell erred by rating
impairments both for restricted motion and loss of strength. The Office medical adviser
discounted the 47 percent impairment of each lower extremity due to hip weakness. He
concluded that appellant had a 10 percent impairment of each leg due to limited hip motion.
In a February 3, 2009 decision, the Office granted appellant schedule awards for 10
percent impairment of the left and right leg.7
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act8 provides for
compensation to employees sustaining impairment from loss or loss of use of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a mater which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office as a standard for
evaluation of schedule losses and the Board has concurred in such adoption.9
FECA Bulletin No. 01-5 provides that, in making an impairment rating for the lower
extremities, different evaluation methods cannot be used in combination. For example, arthritis
impairments obtained from Table 17-31 cannot be combined with impairment determinations
based on gait derangement (Table 17-5), muscle atrophy (Table 17-6), muscle strength (Tables
17-7 and 17-8) range of motion loss (section 17.2f). Before finalizing any physical impairment
calculation, the Office medical adviser is to verify the appropriateness of the combination of
evaluation methods with that listed in Table 17-2, the cross-usage chart.10
6

The first paragraph on page 508 of the A.M.A. Guides, section 16.8a) provides in pertinent part: “Decreased
strength cannot be rated in the presence of decreased motion….” (Emphasis in the original.)
7

Following the February 3, 2009 decision, appellant submitted additional medical reports regarding her lower
extremities. However, the Office has not yet issued a decision on this evidence. The Board may not consider
evidence for the first time on appeal that was not before the Office at the time it issued the final decision in the case.
See 20 C.F.R. § 501.2(c).
8

5 U.S.C. §§ 8101-8193.

9

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10

See FECA Bulletin No. 01-5 (issued January 29, 2001); see also A.M.A., Guides 526, Table 17-2 (5th ed.
2001).

3

ANALYSIS
The Office accepted that appellant sustained bilateral hip strain/sprains, an aggravation of
osteoarthritis of both hips and a lumbar strain, in addition to a herniated C5-6 disc and a right
rotator cuff tear. It granted schedule awards for 10 percent impairment to each lower extremity.
On appeal, appellant asserts that she has a 57 percent impairment of each lower extremity as
rated by Dr. Chmell, an attending Board-certified orthopedic surgeon.
Dr. Chmell found a 57 percent impairment of each lower extremity, 10 percent due to
restricted hip motion under Table 17-9 of the A.M.A., Guides and 47 percent due to weakness
according to Table 17-8. An Office medical adviser concurred with Dr. Chmell’s assessment of
a 10 percent impairment of each leg due to restricted motion. However, he explained that, under
paragraph 16.8a, page 508 of the A.M.A., Guides, decreased strength cannot be rated in the
presence of decreased motion.11 The A.M.A., Guides provide that loss of strength can berated
separately only in rare cases, if the examiner believed that weakness represents an impairment
factor not considered adequately by other methods in the A.M.A., Guides.12 Dr. Chmell did not
explain why strength impairment should be rated separately from the range of motion
impairment. Therefore, he improperly assessed strength impairment under Table 17-8 in
conjunction with restricted motion under Table 17-9.
The Board finds that the Office medical adviser used the appropriate portions of the
A.M.A., Guides to calculate the percentage of impairment awarded. The Office medical adviser
accurately applied the rating criteria to Dr. Chmell’s findings. He explained that Dr. Chmell
improperly assessed impairments for weakness in conjunction with restricted motion. Thus, the
Board finds that the Office medical adviser’s opinion is sufficient to represent the weight of the
medical evidence in this case.13
Appellant also contends that the Office failed to consider her bilateral knee injuries,
lumbar radiculitis and a possible deep venous thrombosis in the right leg in determining the
percentage of permanent impairment. Dr. Chmell diagnosed right-sided lumbar sciatica and
radiculopathy on June 27, 2006; but he did not address whether these conditions caused any
impairment of the lower extremities. Also, there is no medical evidence before the Board on
appeal regarding knee injuries or a deep venous thrombosis. Appellant has not established any
additional lower extremity impairments due to these factors.
CONCLUSION
The Board finds that appellant has not established that she sustained more than a 20
percent impairment of the lower extremities, for which she received a schedule award.

11

A.M.A., Guides 508, section 16.8a.
December 7, 2009).

See also J.G., 61 ECAB ___ (Docket No. 09-1128, issued

12

Id.

13

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 3, 2009 is affirmed.
Issued: May 21, 2010
Washington, DC

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

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

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

5