United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ontario, CA, Employer
__________________________________________

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

Docket No. 21-0752
Issued: January 5, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 8, 2021 appellant filed a timely appeal from December 17, 2020 and February 12,
2021 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 2
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 12, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id

FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 1, 2017 appellant, then a 52-year-old rural route carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed a bilateral hip condition due to factors of
his federal employment, including walking, standing, twisting, turning, pushing, pulling, and
climbing in and out of his long-life vehicle (LLV). He noted that he first became aware of his
claimed condition and realized its relationship to his federal employment on January 16, 2017.
Appellant stopped work on August 10, 2016. On the reverse side of the claim form, D.B., a
customer service supervisor for the employing establishment, indicated that appellant had been
working limited duty since July 3, 2014 due to a prior work-related injury.4
In a March 3, 2017 letter, the employing establishment controverted appellant’s claim,
alleging that he had submitted a false statement that contradicted actual events. It noted that
appellant had not driven a postal vehicle in over two years since he began to work a limited-duty
assignment that had no delivery duties. The employing establishment reported that appellant had
not worked since August 10, 2016 under a separate claim and had no opportunity to aggravate this
injury for over nine months. It attached a limited-duty job offer dated July 15, 2014.
In a March 16, 2017 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence, and provided a questionnaire for
his completion. OWCP afforded appellant 30 days to respond.
In an April 3, 2017 response, appellant recounted that he performed his employment duties
daily with the exception of climbing in and out of the postal vehicle, which he stopped performing
on June 6, 2017 due to his current work restrictions under OWCP File No. xxxxxx667. He
estimated that, beginning September 1989, he spent 5½ to 6½ hours walking and standing, 2 to 3
hours twisting, 2 or more hours turning, 30 to 60 minutes pushing, 30 or more minutes pulling,
and 3 to 4 hours climbing in and out of postal vehicles. Appellant also clarified that he was
claiming a new occupational disease claim that was not related to his previously accepted bilateral
knee condition.
Appellant also submitted additional medical evidence. A January 17, 2017 right hip
magnetic resonance imaging (MRI) scan demonstrated osteoarthritis and a complex tear of the
superolateral labrum with an adjacent small-to-moderate-sized paralabral cyst. A left hip MRI
scan report of even date also demonstrated a complex superolateral labral tear and moderate left
hip effusion.
3

Docket No. 19-0543 (issued December 23, 2019).

4

Appellant has filed two previous occupational disease claims. Under OWCP File No. xxxxxx064, OWCP
accepted appellant’s claim for bilateral femoral and ventral hernia in 2014. Under OWCP File No. xxxxxx667, it
accepted his claim for bilateral knee sprains, bilateral tears of the lateral and medial meniscus, and bilateral patellar
chondromalacia in 2016. The cases have not been administratively combined.

2

In a February 23, 2017 report, Dr. Edward Mittleman, a family physician, recounted that
appellant had been delivering his regular route for over 20 years without any limitation, but had
not performed his mail delivery duties since June 2014. He provided a detailed, chronological
description of appellant’s duties from when he arrived at the employing establishment until he
completed his mail delivery route. Dr. Mittleman noted that appellant was continuously standing
and repetitively bending, twisting, reaching, and grabbing mail, lifting up to 70 pounds, mounting
and dismounting his LLV, and ascending and descending stairs on his delivery route. He reported
that appellant had complained of sharp bilateral hip pain for approximately a year and a half that
increased when walking, standing, twisting, turning, sitting upright while driving his LLV, and
climbing in and out of his LLV while walking. On examination of appellant’s bilateral hips
Dr. Mittleman observed greater pain on the left, compared to the right, with lateral pressure and
greater pain on the left, compared to the right, on passive rotation of the hips. He also provided
range of motion findings.
Dr. Mittleman diagnosed left hip labral tear, right hip labral tear, and acceleration of left
and right hip osteoarthritis. He indicated that appellant had also developed femoracetabular
impingement (FAI), which caused the ball and socket of appellant’s right hip joint to not fit
together perfectly. Dr. Mittleman explained how this joint allowed for movement forwards and
backwards, side to side, and internal and external rotation, which appellant performed as a rural
route carrier. He noted that a patient usually began to experience symptoms of his FAI when a
labral tear event would occur. Dr. Mittleman reported:
“Once the labrum is torn, the protective effectiveness of the labrum to the articular
cartilage is decreased, and articular cartilage damage occurs as it has occurred in
[appellant’s] hips. Over time, this breakdown of articular cartilage leads to hip
arthritis because without the protection of the articular cartilage there is now bone
rubbing against bone as has occurred in [appellant’s] hips. Although the hip bones
in [his] hips developed abnormally, it has been the repetitive weight-bearing forces
sustained by [appellant’s] hips when performing his duties as a rural route carrier
for the USPS for 27 years.”
Dr. Mittleman further described in detail how appellant’s specific employment duties
required him to be in a constant weight-bearing position and placed significant forces on his hips.
He concluded that it was the “long-term repetitive pressure to Mr. Martin’s hips that has
accelerated the femoroacetabular impingement in both of his hips.”
By decision dated May 11, 2017, OWCP denied appellant’s occupational disease claim,
finding that he had not established that his diagnosed medical conditions were causally related to
the accepted factors of his federal employment.
Appellant continued to request reconsideration and submit medical evidence.
In letters dated June 12 and October 19, 2017, Dr. Mittleman noted his disagreement with
OWCP’s denial decision and reiterated his opinion that appellant’s daily weight-bearing activities
as a letter carrier accelerated his bilateral degenerative hip condition(s). He noted that, while
appellant had an underlying FAI condition, appellant’s employment duties also contributed to the
development of his bilateral hip labral tears and bilateral hip osteoarthritis.

3

Appellant also submitted a March 7, 2017 report by Dr. Charles Herring, a Board-certified
orthopedic surgeon, who discussed appellant’s history of injury and employment history. On
physical examination he observed that appellant ambulated with a slight bilateral antalgic gait.
Dr. Herring reported that range of motion examination demonstrated limited flexion and external
and internal rotation of both hips. He diagnosed bilateral hip osteoarthritis, bilateral hip la bral
tears, and bilateral FAI syndrome. Dr. Herring concluded that appellant’s work activities,
including frequent entering and exiting of the LLV, walking, stooping, and lifting, superimposed
upon his existing FAI condition, caused labral tears and hastened the osteoarthritic changes within
his hip joints.
By decisions dated September 19, 2017 and August 8, 2018, OWCP denied appellant’s
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant filed an appeal to the Board. By decision dated December 23, 2019, the Board
found that appellant had submitted pertinent and relevant new medical evidence not previously
considered by OWCP. It set aside the August 8, 2018 OWCP decision and remanded the case for
OWCP to conduct a merit review of appellant’s claim.
Following the Board’s decision, OWCP received an April 15, 2020 letter from
Dr. Mittleman, who asserted that appellant’s preexisting FAI condition did not negate contribution
of appellant’s work factors to his bilateral hip osteoarthritis and labral tears. He reiterated his
opinion that appellant’s job duties as a letter carrier caused permanent aggravation of his bilateral
hip osteoarthritis. Dr. Mittleman provided a detailed list of appellant’s job duties and noted that
appellant had performed these duties for 20 years without restrictions and continued to work with
restrictions after a bilateral knee injury and a hernia.
In a de novo decision dated May 14, 2020, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence of record was insufficient to establish that his diagnosed
medical conditions were causally related to the accepted factors of his federal employment.
On September 24, 2020 appellant requested reconsideration.
In an April 23, 2020 progress note, Dr. Mittleman recounted appellant’s complaints of
bilateral hip sensations of sharpness, shooting, stabbing, and aching. He provided examination
findings and diagnosed aggravation of bilateral hip osteoarthritis and released appellant to
modified-duty work.
In a letter dated July 6, 2020, Dr. Basimah Khulusi, Board-certified in physical medicine
and rehabilitation, noted her disagreement with OWCP’s denial decision. She explained that
appellant was born with deformed hips, which made him more vulnerable to suffer more damage
from wear and tear because the distribution of forces going through the femoral head into the
acetabulum was abnormally distributed. Dr. Khulusi described how appellant suffered “excessive
stresses into his hip joints all through all the years that he worked for the post office. ” She
requested that appellant’s claim be accepted for acceleration of degeneration of the bilateral hip
joints, bilateral labral tears, and permanent aggravation of degeneration of the hip joint.
By decision dated December 17, 2020, OWCP denied modification of its prior decision.

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On February 8, 2021 appellant requested reconsideration.
In a January 25, 2021 letter, Dr. Khulusi again noted her disagreement with OWCP’s denial
decision and alleged that she had provided sufficient medical rationale explaining how appellant’s
osteoarthritis developed “from progressive wear and tear on the job.” She further explained:
“[w]hen the femoral head is aspherical, that causes abnormal pressure to go into some particular
spots and not to be distributed equally over the whole area of the sphere. That causes abnormal
stresses in these particular spots and causes these excessive pressures and stre sses to tear the
labrum.” Dr. Khulusi requested that appellant’s claim be accepted for a bilateral hip condition.
By decision dated February 12, 2021, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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,6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
To 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 employment factors identified by the claimant. 9
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence. 10 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explain ing the nature of the
5

Id.

6

L.C., Docket No. 19-0724 (issued September 5, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
7

D.W., Docket No. 18-1139 (issued May 21, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59
ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
8

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

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

10

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).

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relationship between the diagnosed condition and specific employment factors identified by the
employee.11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 12
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted a series of reports dated February 3, 2017
through April 23, 2020 from Dr. Mittleman. Dr. Mittleman described appellant’s employment
duties as a letter carrier and noted that appellant had not performed mail delivery since June 2014.
He noted that appellant was continuously standing and repetitively bending, twisting, reaching,
and grabbing mail, lifting up to 70 pounds, mounting and dismounting his LLV, and ascending
and descending stairs on his delivery route. Dr. Mittleman provided examination findings and
diagnosed left hip labral tear, right hip labral tear, and acceleration of left and right hip
osteoarthritis. He also noted that appellant had developed FAI and explained how the joint allowed
for movement, which appellant performed at his job. Dr. Mittleman reported that, although
appellant’s hip bones had developed abnormally, “it has been the repetitive weight bearing forces
sustained by [appellant’s] hips when performing his duties as a rural route carrier” that contributed
to his arthritic condition. He further described in detail how appellant’s specific employment
duties required him to be in a constant weight bearing position and placed significant forces on his
hips. Dr. Mittleman concluded that appellant’s repetitive employment duties, along with his
underlying FAI condition, had permanently aggravated appellant’s bilateral hip condition.
The Board finds that Dr. Mittleman provided a factual history confirming the accepted
employment factors, and accurately noted appellant’s history of injury and an affirmative opinion
on causal relationship,. The Board finds that, while Dr. Mittleman’s reports are not fully
rationalized, they are consistent in indicating that he sustained a medical condition due to the
accepted factors of federal employment and are sufficient to require OWCP to further develop the
medical evidence and the case record. 13 As such, his reports constitute substantial uncontradicted
evidence in support of appellant’s claim, and they also provide sufficient rationale to require
further development of the record. 14

11

M.L., Docket No. 18-1605 (issued February 26, 2019); M.V., Docket No. 18-0884 (issued December 28, 2018);
I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

13

E.P., Docket No. 19-1703 (issued April 16, 2021); G.M., Docket No. 19-0657 (issued September 13, 2019); see
also John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).
14

R.A., Docket No. 19-0650 (issued January 15, 2020); B.M., Docket No. 18-0448 (issued January 2, 2020); E.G.,
Docket No. 19-1296 (issued December 18, 2019).

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It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done. 15
The Board will, therefore, remand the case to OWCP for further development of the
medical evidence. On remand OWCP shall refer appellant, a statement of accepted facts and the
medical evidence of record to an appropriate Board-certified physician. The physician shall
provide a rationalized opinion on whether the diagnosed conditions are causally related to the
accepted employment incident. If the referral physician opines that the diagnosed conditions are
not causally related to the accepted employment factors, he or she must explain with rationale how
or why their opinion differs from that of appellant’s treating physicians. Following this and any
further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

C.W., Docket No. 19-0322 (issued July 18, 2019); S.W., Docket No. 18-0119 (issued October 5, 2018); William J.
Cantrell, 34 ECAB 1233 (1993).

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ORDER
IT IS HEREBY ORDERED THAT the December 17, 2020 and February 12, 2021 merit
decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: January 5, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Portland, OR, Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0817
Issued: April 26, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 27, 2017 appellant, through counsel, filed a timely appeal from a
November 16, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

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

Appellant timely requested oral argument before the Board. By order dated January 29, 2018, the Board exercised
its discretion pursuant to 20 C.F.R. § 501.5(a) and denied the request finding that the arguments on appeal could
adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 17-0817
(issued January 29, 2018).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.4
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation
based on its determination that the constructed position of dispatcher, security services represented
his wage-earning capacity.
FACTUAL HISTORY
This case has previously been before the Board.5 The facts of the case as presented in the
Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On August 3, 2005 appellant, then a 56-year-old transportation security screener, filed a
traumatic injury claim (Form CA-1) alleging that, on August 1, 2005, he experienced low back
pain while lifting bags in performance of his federal employment duties. OWCP accepted the
claim for lumbosacral sprain/strain. It subsequently expanded acceptance of the claim to include
lumbosacral intervertebral disc degeneration and derangement of the posterior horn of the right
medial meniscus. OWCP paid appellant wage-loss compensation and medical benefits on the
supplemental rolls commencing October 15, 2005 and on the periodic rolls as of
January 22, 2006.6
In 2012, appellant was referred for vocational rehabilitation services. Based on his
experience, education, medical restrictions, and a labor market survey, the rehabilitation counselor
determined that appellant was capable of earning wages as a dispatcher, radio (emergency) a
position listed in the Department of Labor’s Dictionary of Occupational Titles (DOT) and bearing
the DOT #379.362.010. Although appellant participated in a job search, the efforts did not result
in job placement. By decision dated May 2, 2012, OWCP reduced his compensation based on the
constructed position of dispatcher, radio (emergency). However, by decision dated July 18, 2012,
an OWCP hearing representative set aside the May 2, 2012 decision and remanded the case for
3

5 U.S.C. § 8101 et seq.

4

The record provided to the Board includes evidence received after OWCP issued its November 16, 2016 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. 20 C.F.R.
§ 501.2(c)(1). Therefore, the Board is precluded from considering this evidence for the first time on appeal. Id.
5

Order Granting Motion for Remand and Cancelling Oral Argument, Docket No. 14-1024 (issued
August 26, 2014).
6
Appellant also has an accepted claim for bilateral carpal tunnel syndrome under OWCP File No. xxxxxx025 which
is not part of the combined case record. He underwent OWCP-approved right carpal tunnel release on October 27,
2008 and left carpal tunnel release February 23, 2009. Appellant subsequently underwent carpal tunnel releases on
December 16, 2013 for the right side and January 29, 2014 for the left side. In an August 12, 2014 report, Dr. Marc
Suffis, Board-certified in emergency medicine and a specialist in occupational medicine, opined that appellant had
reached maximum medical improvement (MMI) for his bilateral carpal tunnel syndrome and performed an impairment
examination. OWCP administratively combined the present current claim, File No. xxxxxx299, with File Nos.
xxxxxx106, xxxxxx183, and xxxxxx243, which had been accepted for cervical and/or lumbar strains, and subsequent
aggravation. OWCP File No. xxxxxx243 was designated as the master file.

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further development. Compensation for total disability was reinstated and further development
with vocational rehabilitation services was obtained.
By decision dated December 19, 2012, OWCP reduced appellant’s compensation based on
the constructed position of ambulance dispatcher, Standard Occupational Classification (SOC) 435031,7 which was the equivalent to DOT #379.362-010. However, on March 5, 2013, an OWCP
hearing representative set aside the December 19, 2012 decision and remanded the case for further
development. Compensation for total disability was reinstated and further development with
vocational rehabilitation services was obtained.
By decision dated July 11, 2013, OWCP reduced appellant’s compensation based on the
constructed position of customer service representative, DOT # 239.362-014. By decision dated
January 10, 2014, an OWCP hearing representative affirmed OWCP’s July 11, 2013 decision.
On March 31, 2014 appellant appealed to the Board. The Board issued an Order Granting
Motion for Remand and Cancelling Oral Argument on August 26, 2014.8 In an August 6, 2014
motion, the Director of OWCP had requested that the Board remand the case, acknowledging that
OWCP had not properly supported its finding that the selected position was medically suitable.
The Director also noted that there was an issue with regard to the wage rate used for the selected
position. The Board granted the Director’s motion, set aside OWCP’s January 10, 2014 decision,
and remanded the case for additional development to be followed by a de novo decision.
On remand, OWCP referred appellant for a second opinion examination with Dr. Louis F.
Kretschmer, a Board-certified orthopedic surgeon, to determine appellant’s disability status. The
updated statement of accepted facts (SOAF) noted appellant’s accepted work-related conditions
including the accepted bilateral carpal tunnel syndrome under OWCP File No. xxxxxx025.
In a December 22, 2014 report, Dr. Kretschmer opined that appellant was partially disabled
as a result of the multiple level degenerative disc disease of the lumbar spine and was able to work
with a lifting restriction of no greater than 40 pounds on a repetitive basis. In his December 22,
2014 work capacity evaluation, Form OWCP-5c, he indicated that appellant’s accepted conditions
were at maximum medical improvement (MMI) and that appellant could perform his date-ofinjury position. In a January 8, 20159 corrected Form OWCP-5c, Dr. Kretschmer indicated that
appellant was not capable of performing his usual job, but could work with permanent restrictions
of no repetitive lifting over 40 pounds.
Following Dr. Kretschmer’s examination, OWCP referred appellant’s file to vocational
rehabilitation services for updated Labor Market Surveys (Form CA-66) and wage information for
7

The SOC is derived from the Occupational Information Network (O*NET), which was developed under the
sponsorship of the U.S. Department of Labor, Employment and Training Administration. The DOT is replaced by the
O*NOET Database as a new system of occupational information that reflects current occupations in both government
and non-government positions.
8

Supra note 5.

9
The form notes a date of January 8, 2014. However, this appears to be a typographical error as Dr. Kretschmer’s
second opinion examination was in December 2014

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the positions of receptionist, customer service representative and dispatcher, security services,
which were previously identified as vocationally appropriate for appellant.
On February 6, 2015 the vocational rehabilitation counselor provided updated CA-66
forms for the identified positions which were identified in the sedentary to light-duty categories.
For the position of dispatcher, security services (DOT # 372.167-010), the physical demand was
listed as light duty, which required frequent lifting of 10 pounds and occasional lifting of no greater
than 20 pounds, and involved frequent reaching, handling, fingering activities from 1/3 to 2/3 of
the time. The position involved dispatching security personnel to the client’s site for private,
protective-service. The duties of the position required reading posted orders to ascertain personnel
requirements and notifying guards of work assignments and changes in instructions by telephone.
The position also required posting assignment information on a dispatch board, compiling and
recording data, issuing regular and special equipment to guards, and may include interviewing
applicants and recommending hiring of guards.
The vocational rehabilitation counselor noted that appellant met the specific vocational
preparation requirement of one to two years as he had extensive prior experience and skill in related
security positions and would be entering the position as a skilled employee.10 The vocational
rehabilitation counselor indicated that King County was used to determine the average annual
wage of $46,906.00 annually ($22.07 per hour) and job availability, which demonstrated that the
job was being performed in sufficient numbers so as to make it reasonably available to appellant
within his commuting area. The rehabilitation specialist further opined that, given appellant’s
extensive prior experience and skill in related security positions, he would be capable of
reemployment as a skilled employee capable of earning above entry level wages. The specialist
further opined that the dispatcher, security services position was within his physical limitation of
lifting no more than 40 pounds and that contact with employing establishments revealed that the
physical requirements of the position more appropriately matched that of a sedentary limitation.
In a February 23, 2015 report, Dr. Suffis indicated that appellant’s chronic low back pain
with degenerative disc disease had been at MMI for a while and that there had been no change in
his condition. He noted that appellant had previous permanent restrictions.
On April 15, 2015 OWCP requested clarification from Dr. Kretschmer. It specifically
asked him to confirm that the conditions of bilateral carpal tunnel syndrome and right knee
derangement of posterior horn of medial meniscus, as outlined as accepted work-related conditions
in the SOAF, were also considered in determining appellant’s work-related disability.
On June 10, 2015 Dr. Kretschmer reexamined appellant. In a report of the same date, he
opined that all of appellant’s work-related accepted conditions in OWCP File Nos. xxxxxx243,
xxxxxx813, xxxxxx106, and xxxxxx0245 had resolved and were no longer disabling.
Dr. Kretschmer noted that, under OWCP File No. xxxxxx025, Dr. Suffis found that appellant had
reached MMI for the accepted bilateral carpal tunnel condition on December 20, 2006. He
10

The vocational rehabilitation counselor had found that, through his work as an airline security representative and
supervisor, appellant had met the necessary skills. He had demonstrated the ability to use a computer for his regular
job tasks and thus met the computer skill requirement. The counselor additionally had worked in highly stressful
environments, which was a required temperament for radio (emergency) dispatcher.

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reviewed the positions of dispatcher, security services and customer service representative and
opined that, taking into account all claims and conditions accepted, appellant was capable of
performing those positions without specific restrictions. In a June 24, 2015 work capacity
evaluation form (Form OWCP-5c), Dr. Kretschmer opined that appellant had reached MMI and
was capable of returning to his usual job. He noted that this included all claims and conditions
accepted.
In a July 9, 2015 report, Dr. Kretschmer noted that the accepted medial meniscal tear,
degenerative in nature, had reached a steady state and no further treatment was indicated as of
June 10, 2015, the date of his examination. He reiterated that he had reviewed the positions of
dispatcher, security services, and customer service representative and opined that, taking into
account all claims and conditions accepted, appellant was capable of performing those positions
without restrictions.
On July 30, 2015 the vocational rehabilitation counselor provided updated labor market
data for the positions of dispatcher, security services and customer service representative. She
indicated that the wage information for the dispatcher position did not include police, fire, and
emergency. In an August 18, 2015 report and on the July 30, 2015 Form CA-66, the vocational
rehabilitation counselor opined that based on appellant’s extensive prior experience and skill in
related security positions, appellant was qualified to enter the dispatcher, security services position
as a skilled employee capable of earning average wage of $17.36 per hour or $694.40 per week.11
On September 10, 2015 OWCP issued a notice of proposed reduction of appellant’s
compensation, finding that he was partially disabled from work and that the position of dispatcher,
security services (DOT # 372.167-010) was medically and vocationally consistent with his medical
limitations and work experience. It found that he was capable of earning wages at the rate of
$694.40 per week as a dispatcher, security services and that the position was reasonably available
within his commuting area. OWCP provided an attachment detailing the application of the
Shadrick formula.12 Appellant was provided 30 days to submit evidence and argument challenging
the proposed action.
In a September 17, 2015 report, Dr. Suffis noted that, while appellant was at MMI for his
back conditions, appellant could not lift 40 pounds on a regular basis or return to full duty in his
date-of-injury position. In a September 17, 2015 Form OWCP-5c, he opined that appellant could
return to work with restrictions of sitting no more than 4 hours, walking and standing no more than
2 hours, lifting no more than 2 hours, repetitive movements of the wrists for no more than 2 hours,
and pushing and pulling no more than 30 minutes, a 10-pound weight restriction was also noted.
An August 13, 2015 x-ray report of the bilateral knees was submitted. This indicated that
the right knee had no changes from the prior study of July 15, 2010, but the degree of degenerative
joint disease in the left knee was worse than when compared to a prior study of July 15, 2010.

11

On August 21, 2015 the vocational rehabilitation specialist indicated that the dispatch wage was the average wage
of all the employing establishment contacts and was the only wage that could be supported for security dispatchers.
12

Albert C. Shadrick, 5 ECAB 376 (1953).

5

On November 2, 2015 OWCP requested that Dr. Suffis review the job classifications for
the dispatcher, security service and customer service representative positions and determine
whether, considering the whole person, appellant was able to perform the identified positions. On
November 9, 201513 Dr. Suffis opined that the positions of both dispatcher, security service and
customer service representative would be within appellant’s physical capabilities so long as
appellant was allowed to have regular position changes and the sitting, standing and walking
requirements listed on his OWCP-5c form were maintained. A copy of his September 17, 2015
Form OWCP-5c was provided.
In a November 16, 2015 report, Dr. Suffis indicated that there was no neurological basis
for surgical intervention at the present time for appellant’s degenerative disc disease, lumbar spine,
with probable spinal stenosis.
By decision dated December 16, 2015, OWCP finalized the notice of proposed reduction
and reduced appellant’s compensation, effective that date, for the reason that the position of
dispatcher, security services was medically and vocationally suitable, was reasonably available
within his commuting area, and represented his wage-earning capacity.
On January 13, 2016 OWCP set aside the December 16, 2015 decision due to a
typographical error when computing the actual entitlement following the reduction. Accordingly,
it reissued a notice of proposed reduction based on the position of dispatcher, security services.14
Appellant was provided 30 days to submit evidence and argument challenging the proposed action.
No response was received within the time allotted.
By decision dated February 22, 2016, OWCP reduced appellant’s compensation, effective
January 9, 2016, based on his capacity to earn wages as a dispatcher, security services. It found
that the evidence of record showed that he was vocationally and physically capable of working as
a dispatcher, security services. OWCP applied the Shadrick formula to adjust appellant’s
compensation.
On March 14, 2016 OWCP received appellant’s March 10, 2016 request for a hearing
before an OWCP hearing representative. In a March 12, 2016 letter, counsel argued that the
selected position of dispatcher, security services required appellant to finger objects frequently
which contradicted Dr. Suffis’ September 17, 2015 restrictions of no repetitive wrists movements
for more than two hours in an eight-hour day. In support of his argument, counsel cited to OWCP’s
Federal (FECA) Procedural Manual Chapter 2.813, Exhibit 1: Physical Demand Definitions, for
the definition of “repetitive movements of the wrists (fingering)” and “frequently.”15 He indicated
13

The letter is dated November 9, 2014. However, this appears to be a typographical error as Dr. Suffis
electronically signed the letter on November 10, 2015.
14
On January 20, 2016 OWCP received appellant’s request for an oral hearing of its December 16, 2015 decision
before an OWCP hearing representative. On February 1, 2016 OWCP’s Branch of Hearings and Review found that
the case not in posture for a hearing as no final decision had been made on the issue upon which the appeal was
requested.
15
Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813
(February 2011).

6

that repetitive movements involved fingering and since the selected position involved frequent
fingering for 1/3 to 2/3 of the time, by definition, that amounted to a maximum of 5 hours and 20
minutes in an 8-hour day.
In a July 21, 2016 report, Dr. Suffis continued to relate that appellant was at MMI for his
lumbar spine degenerative disc disease and that he would continue to see him on an as-needed
basis for administrative needs.
Chiropractic reports from May 13 through July 12, 2016 were also provided.
An oral hearing was held on October 6, 2016. Counsel reiterated his arguments that the
selected position was not suitable as it did not meet Dr. Suffis’ work restriction against repetitive
wrist movements more than two hours a day.
By decision dated November 16, 2016, an OWCP hearing representative affirmed
OWCP’s February 22, 2016 reduction of appellant’s compensation based on his capacity to earn
wages as a dispatcher, security services. The hearing representative found that Dr. Suffis’
restriction against repetitive wrist movements more than two hours per day did not restrict
appellant from using his fingers more than two hours per day. The hearing representative
concluded that fingering movements were distinguishable from wrist movements.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled from work as a
result of an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.16 Under section 8115(a), wage-earning capacity is determined
by the actual wages received by an employee if the earnings fairly and reasonably represent his or
her wage-earning capacity. If the actual earnings do not fairly and reasonably represent his or her
wage-earning capacity, or if the employee has no actual earnings, his or her wage-earning capacity
is determined with due regard to the nature of the injury, the degree of physical impairment, his or
her usual employment, age, qualifications for other employment, the availability of suitable
employment, and other factors or circumstances which may affect wage-earning capacity in his or
her disabled condition.17
In determining an employee’s wage-earning capacity based on a position deemed suitable,
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from postinjury or subsequently-acquired conditions. Any incapacity to perform the
duties of the selected position resulting from subsequently-acquired conditions is immaterial to the
loss of wage-earning capacity that can be attributed to the accepted employment injury and for
which appellant may receive compensation.18
16

T.O., 58 ECAB 377 (2007).

17

Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999).

18

See D.P., Docket No. 11-1796 (issued March 23, 2012).

7

When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position listed in the DOT or otherwise available in the open market, that fits the
employee’s capabilities with regard to his or her physical limitations, education, age, and prior
experience.19 Once this selection is made, a determination of wage rate and availability in the open
labor market should be made through contact with the state employment service or other applicable
service. Finally, application of the principles set forth in Albert C. Shadrick20 will result in the
percentage of the employee’s loss of wage-earning capacity.
ANALYSIS
The Board finds that OWCP met its burden of proof to establish that the constructed
position of dispatcher, security services represented appellant’s wage-earning capacity.
The constructed position of dispatcher, security services entailed work for private security
firms, not police, fire, or emergency services. The duties of the position included reading posted
orders to ascertain personnel requirements and notifying guards of work assignments and changes
in instructions by telephone. The position also required posting assignment information on a
dispatch board, compiling and recording data, issuing regular and special equipment to guards,
and may include interviewing applicants and recommending hiring of guards.
OWCP relied on the opinion of Dr. Kretschmer, an OWCP second-opinion physician, in
finding that the constructed position was within appellant’s physical limitations. It later sought
clarification from Dr. Kretschmer to confirm that the accepted conditions of bilateral carpal tunnel
syndrome21 and right knee derangement of posterior horn of medial meniscus were considered.
Dr. Kretschmer subsequently opined that all of appellant’s work-related, accepted conditions had
resolved or reached a stable state as of June 10, 2015, the date of his examination, and that he had
no permanent restrictions. He opined that, taking into account all claims and conditions accepted,
appellant was capable of performing the selected position. Thus, Dr. Kretschmer’s opinion
supports that appellant could perform the position of dispatcher, security services.
On November 2, 2015 OWCP requested that appellant’s treating physician, Dr. Suffis,
review the position description for dispatcher, security services and determine whether appellant
could perform the identified position. Dr. Suffis responded on November 9, 2014 that appellant
could perform the position of dispatcher, security services, so long as he was allowed regular
position changes and the sitting, standing, and walking requirements listed on his OWCP-5c form
were maintained. He did not relate that appellant would be unable to perform this position due to
wrist or fingering limitations.
In a September 17, 2015 Form OWCP-5c, Dr. Suffis opined that appellant could return to
work, but that he had permanent restrictions of sitting no more than 4 hours, walking and standing
19

Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000).

20

5 ECAB 376 (1953); codified by regulations at 20 C.F.R. § 10.403.

21
Impairments that preexisted the employment injury, in addition to injury-related impairments, must be taken into
consideration in selecting a job within a claimant’s work tolerance. Gary L. Moreland, 54 ECAB 638 (2003).

8

no more than 2 hours, lifting no more than 2 hours, repetitive movements of the wrists no more
than 2 hours, pushing and pulling no more than 30 minutes, and a 10-pound weight restriction. In
so far as the restrictions provided by Dr. Suffis on the form are inconsistent with his narrative
report, the probative value of his opinion is reduced.22
As both Dr. Kretschmer and Dr. Suffis reviewed the position description for a dispatcher,
security services, and both physicians opined following review of the actual description that
appellant could perform the duties of this position, the Board finds that OWCP met its burden of
proof to establish that the constructed position was medically suitable.
In assessing the claimant’s ability to perform the selected position, OWCP must consider
not only physical limitations, but also take into account appellant’s work experience, age, mental
capacity, and educational background.23 The rehabilitation counselor determined that appellant
had the skills necessary to perform the position of dispatcher, security services for private security
firms based on his prior work experience and skills learned in prior related security positions. The
rehabilitation counselor found that the position existed in sufficient numbers within appellant’s
commuting area. The rehabilitation counselor concluded that based on appellant’s education, work
experience, and transferable skills that he was capable of earning the median wages in the
identified position as a skilled worker. As the rehabilitation counselor is an expert in the field of
vocational rehabilitation, OWCP may rely on her opinion in determining whether the job is
vocationally suitable and reasonably available.24 The Board finds that OWCP considered the
proper factors, including the availability of suitable employment, appellant’s physical limitations,
and employment qualifications in determining that he had the capacity to perform the selected
position.25 OWCP also properly determined his loss of wage-earning capacity in accordance with
the formula developed in Shadrick and codified at 20 C.F.R. § 10.403. It, therefore, correctly
found that the position of dispatcher, security services reflected appellant’s wage-earning capacity
effective December 16, 2015.
On appeal counsel contends that the position of dispatcher violates restrictions against
fingering as Dr. Suffis had precluded repetitive wrist movements for no more than two hours per
day. As noted herein, the Board finds that the restrictions provided by Dr. Suffis on the form report
are inconsistent with his narrative report, thus his opinion lacked probative value.
Appellant may request modification of the loss of wage-earning capacity determination,
supported by new evidence of argument, at any time before OWCP.

22

See I.B., Docket No. 11-1796 (issued March 23, 2012).

23

See S.J., Docket No. 14-1455 (issued October 23, 2014); S.S., Docket No. 13-0011 (issued March 21, 2013).

24

C.S., Docket No. 17-0496 (issued May 25, 2017).

25

Id.

9

CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation based on its
determination that the constructed position of dispatcher, security services represented his wageearning capacity.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 26, 2018
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1418
Issued: December 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 17, 2008 appellant filed a timely appeal of the January 17, 2008 decision of the
Office of Workers’ Compensation Programs, which found that she received 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 case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$51,898.12 overpayment of compensation for the period September 5, 2002 to January 10, 2006;
and (2) whether the Office properly determined that appellant was at fault in creating the
overpayment of compensation.
FACTUAL HISTORY
The Office accepted that on December 9, 1992 appellant, then a 44-year-old distribution
clerk, sustained bilateral tendinitis and bilateral carpal tunnel syndrome, for which she underwent
a right carpal tunnel release on January 7, 1998. She had previously filed several separate

claims, which had been accepted for employment-related back injuries.1 Appellant stopped work
in 1998 and was placed on the periodic rolls.
On July 1, 1999 appellant filed a claim for a schedule award.
On February 9, 2000 the employing establishment offered appellant a job as a distribution
clerk. On February 11, 2000 appellant rejected the position.
In a letter dated July 24, 2000, the Office advised appellant that the offered position was
suitable, advised her of the sanctions for refusal of suitable work and allowed her 30 days to
reply. The letter provided:
“[Section] 8106(c)(2) of the Federal Employees’ Compensation Act states that
‘[a] partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by, secured for him is not entitled to compensation.’
Therefore, any claimant who refuses an offer of suitable employment (or fails to
report for work when scheduled) is not entitled to any further compensation for
wage loss or [s]chedule [a]ward.”
On August 24, 2000 appellant advised that she could not perform the duties of the job
offer.
On October 30, 2000 the Office advised appellant that the position of a distribution clerk
was suitable work. It afforded appellant 15 additional days to accept the job offer. In a letter
dated October 31, 2000, appellant elected to receive retirement benefits from the Office of
Personnel Management (OPM).
In a decision dated November 16, 2000, the Office terminated appellant’s compensation
under section 8106(c) on the grounds that she failed to accept suitable work. It provided:
“[Section] 8106(c)(2) of the Act states in part that ‘[a] partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by,
secured for him or her, is not entitled to compensation.’”
Appellant filed several requests for reconsideration and the Office denied modification in
decisions dated March 5 and June 27, 2001 and February 25, 2002. She appealed to the Board
and in a decision dated February 3, 2003, the Board affirmed Office’s termination of
compensation based on her refusal of suitable work.2

1

In 1976, appellant was hit in the back with a cash drawer; in 1977, 1978 she developed low back pain from
lifting mail trays; in 1992 she was restricted to working four hours a day and lifting no more than 10 pounds but she
developed back pain and on August 17, 1992 she stopped work completely. This is appellant’s tenth appeal before
the Board. See ECAB Docket Nos. 96-363, 97-907, 00-360, 00-2063, 02-1799, 02-0010, 02-1798, 02-1799 and
03-0010.
2

Docket No. 02-1798 (issued February 3, 2003).

2

On July 10, 2003 appellant filed a second claim for a schedule award. In a July 11, 2003
report, her treating physician stated that she had reached maximum medical improvement.
Thereafter, in the course of developing the claim, the Office solicited opinions from Office
medical advisers and an impartial medical examiner. The impartial specialist found that
maximum medical improvement was reached on September 5, 2002.
On December 4, 2003 the Office granted appellant a schedule award for 56 percent
permanent impairment of the bilateral upper extremities. The period of the award was from
September 5, 2002 to January 10, 2006. The Office issued appellant a check for the period
September 5, 2002 to November 29, 2003 in the amount of $19,280.43. On December 27, 2003
it issued appellant a check for the period November 30 to December 27, 2003 in the amount of
$1,208.00. On January 16, 2004 appellant agreed to a lump-sum payment of $28,993.69 for the
remainder of the schedule award covering the period February 22, 2004 to January 10, 2006.
The Office issued the $28,993.69 payment on February 24, 2004.
On December 9, 2005 appellant filed a claim for an additional schedule award. On
June 9, 2006 she indicated that she was previously granted a schedule award and was entitled to
an additional award for work-related impairment.
In a June 9, 2006 disability benefit payment worksheet, the Office noted that on
November 16, 2000 appellant’s monetary compensation had been terminated precluding
entitlement to a schedule award. It noted that the Board affirmed the termination decision on
February 3, 2003. The Office further noted that appellant was paid a schedule award for 56
percent permanent impairment of the bilateral upper extremities for the period September 5,
2002 to January 10, 2006. The claims examiner determined that appellant was not entitled to a
schedule award because she refused to accept suitable employment and retired and therefore an
overpayment was created in the amount of $51,898.12.
In a July 8, 2008 letter, the Office informed appellant that it made a preliminary
determination that she had received a $51,898.12 overpayment of compensation from
September 5, 2002 to January 10, 2006 because she was granted a schedule award for 56 percent
permanent impairment of the bilateral upper extremities after her benefits were terminated
effective November 16, 2000 because she refused suitable work pursuant to 5 U.S.C. § 8106(c).
The Office noted that appellant was not entitled to compensation after she refused an offer of
suitable work. It found that appellant was at fault in creating the overpayment because she
accepted payment that she knew or reasonably should have know to be incorrect. The Office
informed appellant that she had the right to submit evidence or argument if she disagreed with
the Office’s finding. It also informed appellant that she had a right to a prerecoupment hearing
before an Office hearing representative. The Office instructed appellant to complete an enclosed
overpayment recovery form and submit supporting documentation.
On August 2, 2006 appellant requested a telephone conference which was held on
August 14, 2007. In a memorandum of conference she asserted that she filed her claim for a
schedule award on July 1, 1999 prior to the November 16, 2000 decision terminating her
compensation benefits and she believed that she was entitled to the schedule award. The
examiner noted on November 16, 2000, the Office terminated appellant’s compensation effective

3

the same date and as such, no compensation, regardless of when the CA-7 form was filed, should
have been paid after the November 16, 2000 Office decision.
Appellant submitted an overpayment questionnaire dated September 12, 2007. She
indicated that she was not married and had $67.00 in cash and $142.00 in a checking account.
Appellant listed monthly income of $1,372.00 and monthly expenses totaling $1,184.00. She
submitted supporting financial information and two court orders noting that she was guardian of
two minor children effective 2004.
By decision dated January 17, 2008, the Office found that appellant received a
$51,898.12 overpayment of compensation from September 5, 2002 to January 10, 2006, for
which she was at fault in creating. It advised that the overpayment occurred because appellant
received payment for a schedule award for 56 percent permanent impairment of the bilateral
upper extremities on September 4, 2003 after her benefits were terminated effective
November 16, 2000 because she refused suitable work pursuant to 5 U.S.C. § 8106(c). The
Office noted that appellant was not entitled to compensation benefits after November 16, 2000,
because she refused an offer of suitable work. It noted that modification of the November 16,
2000 termination decision was denied on June 27, 2001 and February 25, 2002 and the Board
affirmed the decision on February 3, 2002. The Office found that appellant was at fault in
creating the overpayment because she accepted payment that she knew or reasonably should
have known to be incorrect as she was aware that her compensation was terminated as of
November 16, 2000 and no compensation could be paid on or after that date. It stated that
appellant should forward a check for the entire amount of the overpayment and if she was unable
to refund the amount she was instructed to contact the Office and make arrangements for
recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c) of the Act3 states:
“(c) A partially disabled employee who -(1) refuses to seek suitable work; or
(2) refuses or neglects to work after suitable work is offered to, procured
by, or secured for him; is not entitled to compensation.”
Office regulations, at 20 C.F.R. § 10.517, provide, in pertinent part:
“(a) 5 U.S.C. § 8106(c) provides that a partially disabled employee who refuses to
seek suitable work or refuses to or neglects to work after suitable work is offered
to or arranged for him or her, is not entitled to compensation. An employee who
refuses or neglects to work after suitable work has been offered or secured for him
or her has the burden to show that this refusal or failure to work was reasonable or
justified.
3

5 U.S.C. § 8106(c).

4

“(b) After providing the two notices described in [s]ec[tion] 10.516, [the Office]
will terminate the employee’s entitlement to further compensation under 5 U.S.C.
§§ 8105, 8106 and 8107, as provided by 5 U.S.C. § 8106(c)(2). However, the
employee remains entitled to medical benefits as provided by 5 U.S.C. § 8103.”4
ANALYSIS -- ISSUE 1
The record indicates that on November 16, 2000 the Office terminated appellant’s
compensation under section 8106(c) on the grounds that she failed to accept suitable work.
Appellant eventually appealed this issue to the Board and, in a decision dated February 3, 2003,
the Board affirmed Office’s suitable work termination. On July 1, 1999 and July 10, 2003 she
filed claims for a schedule award. On December 4, 2003 the Office granted appellant a schedule
award for 56 percent permanent impairment of the bilateral upper extremities in accordance with
the American Medical Association, Guides to the Evaluation of Permanent Impairment. The
period of the award was from September 5, 2002 to January 10, 2006 and the medical evidence
indicates that appellant reached maximum medical improvement after the Office terminated her
monetary benefits on November 16, 2000.5
As noted above, the penalty provision of section 8106(c) bars appellant’s claim for a
schedule award for the period after the termination of compensation based on her refusal to
accept a suitable offer of employment. Since the evidence indicated that appellant’s
compensation was terminated pursuant to section 8106(c) on November 16, 2000, she would not
be entitled to compensation after that date. Accordingly, an overpayment of compensation was
created when the Office issued appellant a schedule award for a period after November 16, 2000.
The Office explained how the overpayment occurred and noted that appellant’s
overpayment was calculated based on her receipt of a schedule award after her benefits were
terminated pursuant to section 8106(c) and provided this to her with the preliminary notice of
overpayment.
In a June 9, 2006 disability benefit payment worksheet, the Office noted, after monetary
compensation was terminated on November 16, 2000, it issued appellant a schedule award for 56
percent permanent impairment of the bilateral upper extremities for the period September 5,
2002 to January 10, 2006. In a compensation payment history worksheet dated June 8, 2006, it
noted that appellant was paid the schedule award for the period September 5, 2002 to
November 29, 2003 in the amount of $19,280.43, for the period November 30 to December 27,
2003 in the amount of $1,208.00, for the period December 28, 2003 to January 24, 2004 in the
amount of $1,208.00, for the period January 25 to February 21, 2004 in the amount of $1,208.00
and for the period February 22 to 23, 2004 in the amount of $28,993.69. The Office calculated a
total overpayment of $51,898.12 for the period September 5, 2002 to January 10, 2006. The
4

See Alfred R. Anderson, 54 ECAB 179 (2002); Stephen R. Lubin, 43 ECAB 564 (1992) (where the Board found
that the penalty provision of section 8106(c) may serve as a bar to compensation pursuant to appellant’s claim for a
schedule award for the period after the termination of compensation based on a refusal to accept a suitable offer of
employment).
5

See Lubin, id.

5

Board finds that the Office’s determination of the amount of the overpayment is proper and is
supported by the evidence of record.
On appeal, appellant indicated that she disputed the fact of the overpayment and asserted
that the Office did not timely issue a decision on her schedule award claim filed on July 1, 1999.
She contends that the Office deliberately delayed in processing her schedule award claim until
December 2003, which precluded her from obtaining a schedule award after the November 16,
2000 termination of benefits decision. Appellant further contends that the claims examiner
properly granted her a schedule award based on the medical evidence in the case record and the
impairment rating provided by the referee physician.
The Board notes that there is no evidence that appellant had reached maximum medical
improvement on July 1, 1999, the date she filed the CA-7 form or at anytime before the Office
terminated monetary benefits on November 16, 2000. It is well established that a schedule
award cannot be determined and paid until a claimant has reached maximum medical
improvement.6 Rather, appellant’s treating physician, Dr. Hampton J. Jackson, Jr., indicated on
July 11, 2003, that appellant reached maximum medical improvement and provided an
impairment rating. No other medical evidence relied upon in determining the schedule award
indicated that maximum medical improvement was reached before November 16, 2000.
Therefore, the evidence does not support that appellant was eligible for a schedule award before
November 16, 2000. Thus, she had no entitlement to any portion of the December 4, 2003
schedule award.7
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act provides as follows:
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.8 No waiver of an overpayment is possible if
the claimant is at fault in creating the overpayment.”9
On the issue of fault, 20 C.F.R. § 10.433(a) provides in pertinent part:
“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;

6

See Joseph R. Waples, 44 ECAB 936 (1993).

7

See Lubin, supra note 4.

8

5 U.S.C. § 8129(b).

9

Gregg B. Manston, 45 ECAB 344 (1994).

6

(2) failed to furnish information which the individual knew or should have
known to be material;
(3) with respect to the overpaid individual only, accepted a payment which
the individual knew or should have been expected to know was
incorrect.”10
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“(b) Whether or not [the Office] 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.”11
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. For it to establish that appellant was with fault in creating the overpayment of
compensation, the Office must establish that, at the time appellant accepted the compensation
checks in question, she knew or should have known the payments were incorrect.12
The Board notes that the Office erroneously issued the schedule award in question.
However, even if the overpayment resulted from negligence on the part of the Office, this does
not excuse the appellant from accepting payment to which she knew or should have known that
she was not entitled.13 The Office advised appellant in a July 24, 2000 letter of the sanctions for
refusal of suitable work and provided “5 U.S.C. § 8106(c)(2) of the Act states that ‘[a] partially
disabled employee who refuses or neglects to work after suitable work is offered to, procured by,
secured for him is not entitled to compensation.’ Therefore, any claimant who refuses an offer of
suitable employment (or fails to report for work when scheduled) is not entitled to any further
compensation for wage loss or [s]chedule [a]ward.” Likewise, in the November 16, 2000
decision terminating appellant’s compensation under section 8106(c) the Office stated, “5 U.S.C.
§ 8106(c)(2) … states … that ‘[a] partially disabled employee who refuses or neglects to work
after suitable work is offered to, procured by, secured for him or her, is not entitled to
compensation.’” This is evidence that appellant should have been aware that, as of
November 16, 2000, she was not entitled to receive a schedule award after the November 16,
2000 termination decision.

10

Kenneth E. Rush, 51 ECAB 116 (1999).

11

20 C.F.R. § 10.433(b).

12

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

13

See Russell E. Wageneck, 46 ECAB 653 (1995).

7

For these reasons, the Board finds that, under the circumstances of this case, the Office
properly found that appellant accepted payment for a schedule award granted on December 4,
2003, which she knew or should have known was incorrect. As appellant was at fault under the
third standard outlined above, recovery of the overpayment of compensation in the amount of
$51,898.12 may not be waived.14
CONCLUSION
The Board finds that appellant received an overpayment of compensation from
September 5, 2002 to January 10, 2006 and that she was at fault in creating the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

As the Office did not direct recovery of the overpayment from continuing compensation payments, the Board
does not have jurisdiction over the recovery of the overpayment. See Desiderio Martinez, 55 ECAB 245 (2004)
(with respect to the recovery of overpayments, the Board’s jurisdiction is limited to reviewing those cases where the
Office seeks recovery from continuing compensation benefits under the Act).

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE NAVY, PEARL
)
HARBOR NAVAL SHIPYARD, Honolulu, HI,
)
Employer
)
___________________________________________ )
G.B., Appellant

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

Docket No. 16-0300
Issued: March 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 1, 2015 appellant filed a timely appeal from a June 5, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish that he has a
ratable hearing loss entitling him to a schedule award.
1
2

5 U.S.C. § 8101 et seq.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of OWCP’s
decision. An appeal is considered filed upon receipt by the Clerk of the Appellant Boards. See 20 C.F.R.
§ 501.3(e)-(f). The 180th day from the June 5, 2015 decision was December 2, 2015. Since using December 8,
2015, the date the appeal was received by the Clerk of the Board, 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 December 1, 2015,
which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

FACTUAL HISTORY
On April 1, 2014 appellant, then a 51-year-old welder supervisor, filed an occupational
disease claim (Form CA-2a) alleging that he sustained bilateral hearing loss and tinnitus due to
exposure to loud noise in the performance of duty. He indicated that he first realized the disease
or illness was caused or aggravated by his employment on April 1, 2014. Appellant did not stop
work. In a separate statement, he described his noise exposure at work and explained that his
hearing loss was an accumulation of many events over his 36-year work history on many
different ships, submarines, and shop areas at the employing establishment.
OWCP received copies of personnel actions, work records, a position description, and
copies of employing establishment audiograms for the period June 19, 1978 to March 7, 2014.3
By letters dated April 9, 2014, OWCP informed appellant and the employing
establishment of the type of evidence needed to support his claim and requested that he submit
such evidence within 30 days.
In response, appellant submitted an April 28, 2014 statement describing his work
experience and noted that he had submitted the requested documentation, but would submit
additional copies.
On August 18, 2014 OWCP referred appellant, together with a statement of accepted
facts to Dr. Ronald Peroff, a Board-certified otolaryngologist, for a second opinion evaluation
regarding the nature and extent of appellant’s hearing loss and its relationship to his federal
employment. It also referred appellant for an audiometric examination on this date.
In an August 27, 2014 report, Dr. Peroff noted seeing appellant on August 26, 2014 and
reported appellant’s history of noise exposure during his federal employment. He noted
reviewing available medical records and examined appellant. Dr. Peroff advised that both ear
canals were totally impacted with cerumen and using suction and the microscope, he cleaned out
both ears. He determined that the drums were normal. Dr. Peroff diagnosed noise-induced
hearing loss and tinnitus. He opined that if he calculated impairment based upon the audiogram,
performed by an audiologist on his behalf, appellant would have zero percent impairment.
Dr. Peroff explained that, as far as tinnitus, they would have to wait to see if the tinnitus
improved since the ears were just cleaned. He attached a copy of the August 22, 2014
audiogram that was performed for him.4
By decision dated September 23, 2014, OWCP accepted appellant’s claim for binaural
noise-induced hearing loss due to his employment-related hearing exposure.

3

The March 7, 2014 audiogram showed that testing for the right ear at the frequency levels of 500, 1,000, 2,000,
and 3,000 cycles per second (cps), revealed decibel (dB) losses of 10, 15, 20, and 25. Testing for the left ear at the
same frequency levels revealed dB losses of 5, 15, 20, and 15.
4

Testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cps revealed dB losses of 20, 25,
25, and 25 respectively. Testing for the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cps revealed
dB losses of 20, 25, 25, and 20 respectively.

2

On October 13, 2014 Dr. David N. Schindler, a Board-certified otolaryngologist and
OWCP medical adviser, reviewed Dr. Peroff’s report and the otologic and audiologic testing
performed on his behalf. He noted that appellant was exposed to noise in excess of 85 dB while
employed by the employing establishment. The medical adviser further noted that the earliest
audiogram was from January 17, 1978, and was a preemployment audiogram, which revealed
normal hearing and subsequent screening audiograms revealed minimal high frequency hearing
loss. He found that Dr. Peroff’s examination revealed a mild bilateral high frequency
neurosensory hearing loss and the speech reception thresholds and speech discrimination scores
were consistent with the pure tones as recorded. The medical adviser diagnosed mild bilateral
high frequency sensorineural hearing loss, consistent in part with hearing loss due to noise
exposure.
He determined that maximum medical improvement was achieved on
August 21, 2014. The medical adviser utilized the American Medical Association, Guides to the
Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides) and determined that
appellant had zero percent binaural hearing loss. He advised that tinnitus was mentioned as
present. However, it was not reported as impacting on activities of daily living. Consequently,
tinnitus was not rated using the A.M.A., Guides. The medical adviser explained that appellant
was not a candidate for hearing aids.
In a June 5, 2015 decision, OWCP explained that, while it had accepted appellant’s claim
for hearing loss, it had determined that his hearing loss was not severe enough to be considered
ratable and, therefore, he was not entitled to schedule award compensation for hearing loss. It
also explained that the medical evidence established that appellant would not benefit from
hearing aids and denied his claim for additional medical benefits.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cps, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.8 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.

8

See A.M.A., Guides 250.

3

calculating the loss in each ear using the formula for monaural loss. The lesser loss is multiplied
by five and then added to the greater loss and the total is divided by six to arrive at the amount of
the binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.9
ANALYSIS
The evidence of record is insufficient to establish that appellant has a ratable hearing loss
entitling him to a schedule award. The Board therefore also finds the record insufficient to
support an award for tinnitus as a ratable hearing loss must first be proven.10
In an August 27, 2014 report, Dr. Peroff examined appellant and diagnosed noiseinduced hearing loss and tinnitus. He opined that if he calculated impairment based upon the
audiogram performed by an audiologist on his behalf, he would find that appellant has zero
percent impairment.
On October 13, 2014 the medical adviser reviewed the otologic and audiologic testing
performed on appellant and properly applied OWCP’s procedures to this evaluation. Testing for
the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cps revealed dB losses of 20,
25, 25, and 25 respectively. These dB losses were totaled at 95 dBs and were divided by 4 to
obtain the average hearing loss of 23.75 dBs. This average loss was then reduced by 25 dBs (25
dBs being discounted as discussed above) to equal a negative figure. Testing for the left ear at
the frequency levels of 500, 1,000, 2,000, and 3,000 cps revealed dB losses of 20, 25, 25, and 20
respectively. These dB losses total 90 dBs and when divided by 4 result in an average hearing
loss of 22.5 dBs. This average loss when reduced by 25 dBs (25 dBs being discounted as
discussed above) equals a negative figure. The medical adviser properly concluded that the
calculations showed that appellant did not have a ratable hearing loss under the relevant
standards of the A.M.A., Guides. This does not mean that he does not have a hearing loss. It
means the extent of loss is not sufficient to constitute a ratable impairment according to the
A.M.A., Guides.11
The Board finds that there is no current medical evidence of record supporting that
appellant has a ratable hearing loss under OWCP’s procedures for rating hearing impairment.
On appeal appellant argues that his tinnitus was the problem that was affecting his quality
of life and had been ignored by OWCP. The A.M.A., Guides provides that, if tinnitus interferes
with activities of daily living, up to five percent may be added to measurable binaural
impairment.12 As explained, appellant does not have a measurable binaural hearing impairment.
Consequently, he would not be entitled to a schedule award due to his tinnitus.13
9

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52 ECAB 462 (2001).

10

See Juan A. Trevino, 54 ECAB 358 (2003) (the Board found that, as appellant’s hearing loss was not ratable, he
was not entitled to the additional award for tinnitus).
11

R.M., Docket No. 15-1747 (issued January 19, 2016); J.S., Docket No. 12-0967 (issued October 12, 2012).

12

A.M.A., Guides 249.

13

Supra note 10.

4

Appellant may request a 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 did not meet his burden of proof to establish that he has a
ratable hearing loss entitling him to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 28, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, Corpus Christi, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1908
Issued: May 8, 2008

Case Submitted on the Record

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

JURISDICTION
On July 11, 2007 appellant filed a timely appeal from a June 22, 2007 Office of Workers’
Compensation Programs’ overpayment decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$25,613.89 overpayment of compensation; and (2) whether the Office properly found that
appellant was not without fault in the creation of the overpayment, thus precluding waiver of the
overpayment.

FACTUAL HISTORY
On September 28, 1991 appellant, then a 45-year-old aircraft mechanic, sustained a right
patella contusion when he slipped and struck a railing with his right knee.1 On October 17, 1994
appellant underwent arthroscopic surgery consisting of chondroplasty of the medial and lateral
femoral condyles, lateral tibial plateau, patella and patellofemoral sulcus and synovectomy for
plica.
In an April 17, 1995 report, Dr. Bernard M. Seger, an attending orthopedic surgeon,
stated that appellant had a 2 millimeter (mm) cartilage level of the patellofemoral joint as shown
on x-ray. Based on Table 62 at page 83 of the fourth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides), he had a ten
percent impairment of the right lower extremity.
By decision dated October 18, 1995, the Office granted appellant a schedule award for
28.80 weeks from January 4 to July 24, 1995 for a ten percent impairment of the right lower
extremity under OWCP file number 160243565. The award was based on a two mm cartilage
level of the patellofemoral joint and Table 62 at page 83 of the fourth edition of the A.M.A.,
Guides. The amount of the schedule award was $14,636.16.
On March 28, 1998 appellant sustained a right knee sprain and meniscus tear while
cleaning an aircraft engine. On June 2, 1998 he underwent arthroscopic chondroplasty of the
medial femoral condyle and partial medial meniscectomy of the right knee.
In a December 3, 1998 report, Dr. Seger stated that appellant had a seven percent
impairment due to joint space narrowing of his right knee as shown on x-ray. On February 2,
1999 an Office medical adviser indicated that appellant had a nine percent impairment of the
right lower extremity which included seven percent for arthritis based on a 3 mm cartilage level
of the knee joint, according to Table 62 at page 83 of the A.M.A., Guides, and two percent for a
partial meniscectomy, according to Table 64 at page 85.
By decision dated February 12, 1999, the Office granted appellant a schedule award for
25.92 weeks from December 3, 1998 to June 2, 1999 for a nine percent impairment of the right
lower extremity under file number 160313429. The impairment included seven percent for
arthritis (a 3 mm cartilage level of the knee joint) based on Table 62 at page 83 of the A.M.A.,
Guides and two percent for a partial meniscectomy based on Table 64 at page 85. The amount of
the schedule award was $14,387.10.
On January 14, 2002 appellant sustained a contusion of the right knee when he slipped
and his right leg struck a chair. In a September 26, 2002 report, Dr. Charles W. Breckenridge, an
orthopedic surgeon, indicated that appellant had a nine percent impairment of the right lower
1

The case record on appeal is a combined file which includes the files for OWCP file number 160243565 for the
September 28, 1991 injury, file number 160313429 for a March 28, 1998 right knee injury and file number
162032007 for a January 14, 2002 right knee injury. The master file number is 160243565. This is the second
appeal in this case. By order dated July 18, 2005, the Board set aside a January 10, 2005 Office overpayment
decision as improperly issued because appellant’s copy of a December 10, 2004 preliminary overpayment notice, as
well as the final overpayment decision, were sent to an incorrect address.

2

extremity, including seven percent for a 3 mm medial cartilage level of the knee joint and two
percent for a partial medial meniscectomy.2
By decision dated January 10, 2003, the Office granted appellant a schedule award for
25.92 weeks from September 26 to December 28, 2002 for a nine percent impairment of the right
lower extremity under file number 162032007. The schedule award included seven percent for
arthritis and two percent for a partial medial meniscectomy. The amount of the schedule award
was $8,650.15.
By letter dated August 9, 2005, the Office advised appellant of its preliminary
determination that he received a $25,613.89 overpayment of compensation. It found that
schedule awards granted on February 12, 1999 for $14,387.10 based on a nine percent
impairment of the right lower extremity, and on January 10, 2003 for $11,226.79 based on a nine
percent impairment of the right lower extremity, were issued in error because appellant had
received a schedule award for a 10 percent impairment of his right lower extremity on
October 18, 1995. The Office notified appellant of its preliminary determination that he was not
without fault in the creation of the overpayment because he knew or should have known that he
was not entitled to receive the schedule awards in 1999 and 2003 for the right lower extremity.
Appellant was given 30 days in which to submit additional evidence or argument or request a
telephone conference, a prerecoupment hearing before the branch of hearings and review or a
final decision.
On August 17, 2005 appellant requested an oral hearing that was held on April 12, 2007.
By decision dated June 22, 2007, the Office hearing representative finalized the
determination that appellant received an overpayment of $25,613.89 because he accepted
schedule awards in 1999 and 2003 for the same part of the body covered by his 1995 schedule
award. The Office determined that he was not without fault in the creation of the overpayment
because he knew or should have known that he was not entitled to additional schedule awards for
the same body part. The Office hearing representative found that appellant received a
$25,613.89 overpayment of compensation and that appellant was at fault in the creation of the
overpayment, thus precluding waiver of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8129(a) of the Federal Employees’ Compensation Act provides that when an
overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Office by decreasing later payments to which the
individual is entitled.3

2

The fifth edition of the A.M.A., Guides (2001) was in effect at the time of Dr. Breckenridge’s evaluation.
However, the arthritis table, Table 17-31 at page 544, and the diagnosed-based estimate table for the partial
meniscectomy, Table 17-33 at page 546 of the fifth edition, were unchanged from the fourth edition.
3

5 U.S.C. § 8129.

3

ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision. There are several errors in
the Office’s calculation of the overpayment of compensation. The October 18, 1995 schedule
award was granted for a ten percent impairment of appellant’s right lower extremity based on a
two mm cartilage level of the patellofemoral joint,4 according to Table 62 at page 83 of the
fourth edition of the A.M.A., Guides. The second schedule award issued on February 12, 1999
included seven percent for a 3 mm cartilage level of the knee joint and two percent for a partial
meniscectomy (performed subsequent to the 1995 schedule award) based on Table 64 at page 85
of the fourth edition of the A.M.A., Guides. The A.M.A., Guides provides for separate
impairment ratings for the knee joint and the patellofemoral joint for reduced cartilage level due
to arthritis. Because the 1999 schedule award was based on arthritis impairment of the knee
joint, not the patellofemoral joint, the seven percent granted for impairment of appellant’s right
lower extremity is not a duplication of the 1995 schedule award. Appellant is therefore entitled
to the seven percent impairment for arthritis of the knee joint, in addition to impairment for
arthritis of the patellofemoral joint.5 On remand, the Office should also determine whether
appellant is entitled to an additional schedule award for his partial meniscectomy.6 Further
development of the medical evidence is necessary to correctly determine appellant’s right lower
extremity impairment. A calculation of any overpayment caused by issuance of the three
schedule awards cannot be made until the correct right lower extremity impairment is
determined. On remand the Office should recalculate appellant’s right lower extremity
impairment based on correct application of the A.M.A., Guides. Following determination of the
schedule award to which appellant is entitled for his right lower extremity impairment, the Office
should determine the amount of any overpayment created by the 1999 and 2003 schedule
awards. In addition to the errors in calculating appellant’s right lower extremity impairment, the
Office erred in its determination that the amount of the 2003 schedule award was $11,226.79.
An Office computer printout shows that the amount of the check issued for the 2003 schedule
award, covering the period September 26 to December 28, 2002, was $8,650.15. The Office
erroneously included, in the $11,226.79 amount for the 2003 schedule award, $2,576.64 which
was paid for lost wages for disability following the final date covered by the schedule award,
December 28, 2002. The $2,576.64 payment covered lost wages for the period of disability from
December 29, 2002 to January 25, 2003. Therefore, the $2,576.64 should not be included in the
4

The patellofemoral joint includes the patella (kneecap) and the femur (the leg bone that extends from the pelvis
to the knee. See DORLAND’S, Illustrated Medical Dictionary (30th ed. 2003) 1384, 682.
5

The 2003 schedule award was granted for the same impairments and body parts as the 1999 schedule award, a
three mm cartilage level of the right knee joint and a partial meniscectomy. Therefore, the 2003 schedule award is a
duplication of the 1999 schedule award and the amount appellant received from the 2003 schedule award constitutes
an overpayment.
6

The fourth edition of the A.M.A., Guides states at page 75, section 3.2, “The Lower Extremity,” that anatomic,
diagnostic and functional methods are used in evaluating permanent impairments of the lower extremity. In general,
only one evaluation method should be used to evaluate a specific impairment. However, in some instances, a
combination of two or three methods may be required. Section 3.2i, “Diagnosis-based Estimates,” at page 84 states
that the evaluating physician must determine whether diagnostic or examination criteria best describe the
impairment of a specific individual. There may be some instances in which elements from both diagnostic and
examination approaches will apply to a specific situation.

4

calculation of the overpayment due to issuance of the 2003 schedule award for appellant’s right
upper extremity impairment.
CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should recalculate appellant’s right lower extremity impairment due to arthritis in his
patellofemoral joint (ten percent) and in his knee joint (seven percent). The Office should also
determine whether he is entitled to an additional impairment in his 1999 schedule award due to
his partial meniscectomy. Following the recalculation of appellant’s total right knee impairment,
the Office should determine the correct amount of the overpayment created by the 1999 schedule
award (if it determines that he is not entitled to impairment due to a partial meniscectomy in
addition to the impairment due to arthritis of the right knee joint), and by the 2003 schedule
award. The second issue on appeal, whether the Office properly found that appellant was not
without fault in the creation of the overpayment, thus precluding waiver of the overpayment, is
rendered moot.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 22, 2007 is set aside and the case remanded for further
action consistent with this decision.
Issued: May 8, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5