United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
DEPARTMENT OF THE AIR FORCE, TRAVIS
AIR FORCE BASE, CA, Employer
__________________________________________

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Appearances:
Daniel Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-402
Issued: June 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 10, 2014 appellant, through counsel, filed a timely appeal from a
November 14, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an employment-related disability on or
after April 4, 1993.
FACTUAL HISTORY
The case has previously been before the Board on prior appeals. Appellant had filed an
occupational disease claim on June 24, 1988 alleging that she sustained carpal tunnel syndrome
(CTS) as a result of her secretarial job duties. She stopped working and OWCP accepted the
1

5 U.S.C. § 8101 et seq.

claim for right CTS and a permanent aggravation of CTS secondary to surgical scarring. In a
decision dated January 9, 2002, the Board found that OWCP had properly terminated
compensation for wage-loss and medical benefits effective April 4, 1993.2 The Board also found
that appellant had submitted sufficient medical evidence to create a conflict under 5 U.S.C.
§ 8123(a) as to whether she continued to be entitled to compensation after April 4, 1993. The
case was remanded for referral to a referee physician to resolve the conflict.
By order dated August 4, 2006, the Board remanded the case to OWCP.3 The Board
found that the referee physician selected, Dr. Britt Daniel, a Board-certified neurologist, had not
properly resolved the issue as to whether appellant continued to have an employment-related
disability after April 4, 1993.4 The case was remanded to properly resolve the disability issue.
By decision dated September 8, 2008, the Board again remanded the case.5 The Board
found that the new referee physician, Dr. Sandy Kimmel, an osteopath Board-certified in
neurology, had not addressed the issue of whether appellant had a continuing employmentrelated disability from April 4, 1993. The case was remanded again to properly resolve the
conflict.
OWCP then selected Dr. Edward Hemphill, a Board-certified orthopedic surgeon, to
resolve the conflict. In a brief report dated December 1, 2009, Dr. Hemphill provided a history
but did not include results on examination. He opined that, while appellant had residual CTS
bilaterally, she was not disabled on or after April 4, 1993.
On February 10, 2013 OWCP advised appellant that Dr. John Sampson, a Board-certified
neurosurgeon, had been selected as a referee physician. Appellant, along with a January 10,
2013 statement of accepted facts (SOAF) and medical evidence, was referred to Dr. Sampson for
examination. In a report dated March 5, 2013, Dr. Sampson provided a history and results on
physical and neurological examination. He indicated that appellant did not have a documented
CTS until August 1989, although he noted that it was possible to have CTS in the setting of a
normal diagnostic study. Dr. Sampson noted that appellant had normal nerve conduction studies
in January 1993.6 In response to a question as to any period of disability since April 1993, he
stated, “[Appellant] had normal studies in January 1993. According to [her], she had also ceased
working since 1988. Therefore, I do not believe [that appellant] had any further disability related
to work duties or related treatment.”

2

Docket No. 00-1942 (issued January 9, 2002).

3

Docket No. 06-529 (issued August 4, 2006).

4

The Board noted that, in a May 10, 2002 letter, OWCP indicated that appellant continued to be entitled to
medical benefits.
5

Docket No. 07-2123 (issued September 8, 2008).

6

The record contains a January 5, 1993 report from Dr. William Curtin, a Board-certified neurologist, who
provided results of nerve conduction testing and opined that there was no dysfunction or disease involving the
peripheral nervous system or muscles.

2

By decision dated December 3, 2013, OWCP denied the claim for wage-loss
compensation commencing April 4, 1993. It found that the weight of the medical evidence
rested with Dr. Sampson.
Appellant, through counsel, requested a review of the written record by an OWCP
hearing representative. By decision dated November 14, 2014, the hearing representative
affirmed the December 3, 2013 decision. The hearing representative found that the weight of the
evidence was represented by Dr. Sampson.
LEGAL PRECEDENT
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to the claimant. To prevail,
the claimant must establish by the weight of the reliable, probative, and substantial evidence that
he or she had an employment-related disability, which continued after the termination of
benefits.7
It is well established that when a case is referred to a referee medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.8 Medical
rationale is a medically sound explanation for the opinion offered.9
ANALYSIS
In its January 9, 2002 decision, the Board affirmed OWCP’s termination of appellant’s
compensation benefits. The Board also found that there was an unresolved conflict under 5
U.S.C. § 8123(a) with respect to whether appellant continued to have an employment-related
disability from April 4, 1993.10 Following the Board’s September 8, 2008 decision, remanding
the case to properly resolve the conflict, Dr. Hemphill was selected as the referee physician, but
his December 1, 2009 report was merely a brief report that did not provide results on
examination or other relevant detail. This report was of limited probative value and was not
sufficient to resolve the conflict.11 OWCP ultimately selected Dr. Sampson, as the referee
7

See I.J., 59 ECAB 408 (2008).

8

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

9

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator the conclusion drawn is rational, sound and logical).
10

FECA provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulations state that if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or OWCP medical
adviser, OWCP shall appoint a third physician to make an examination. This is called a referee or impartial
examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321.
11

See John E. Lemker, 45 ECAB 258 (1993) (a report lacking results on examination, other detail, and medical
rationale is of little probative value).

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physician, to resolve the conflict. As noted above, a rationalized opinion from a referee
physician is entitled to special weight.
The Board finds that Dr. Sampson’s opinion represents the weight of the medical
evidence in this case. Dr. Sampson was provided a complete factual and medical background
with a SOAF and medical records. He provided a history and detailed results on examination.
Dr. Sampson opined that appellant did not have an employment-related disability on or after
April 4, 1993. To support this opinion, he noted that she had not worked since 1988 and
diagnostic studies in January 1993 were normal. Dr. Sampson offered a rationalized medical
opinion based on a complete background. The Board finds that his opinion is entitled to special
weight and resolves the conflict in the medical evidence.
On appeal counsel contends that Dr. Sampson’s report is not sufficient to constitute the
weight of the medical evidence. He argues that his report was not based on a complete
background, as he questioned the permanency of the aggravation of CTS. As noted above,
Dr. Sampson was provided with an accurate background and he provided a history and detailed
findings. He indicated that any continuing aggravation after April 4, 1993 would not be
disabling.
Counsel also argues that Dr. Sampson’s report was internally inconsistent with respect to
diagnostic studies. He argues that Dr. Sampson admitted that it was possible to have both CTS
and normal studies, but then relied on January 1993 normal diagnostic studies to support his
opinion. The reference to the possibility of CTS with normal studies was made with respect to
appellant’s condition prior to August 1989. Dr. Sampson was referring to a possibility that she
may have had CTS prior to the initial evidence of CTS found in diagnostic studies from
August 1989. It is not inconsistent for Dr. Sampson to find no employment-related disability on
or after April 1993 based on the specific results of a January 1993 study.
The Board accordingly finds that OWCP properly denied appellant’s claim for
compensation commencing April 4, 1993.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an employment-related disability on or
after April 4, 1993.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 14, 2014 is affirmed.
Issued: June 9, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF THE NAVY, TRIDENT
REFIT FACILITY, Kings Bay, GA, Employer
__________________________________________

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

Docket No. 07-743
Issued: July 23, 2007

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 January 18, 2007 appellant filed a timely appeal from a November 28, 2006 merit
decision of the Office of Workers’ Compensation Programs denying his claim and a
December 12, 2006 decision denying continuation of pay. 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 appellant has established that he sustained a lower back
injury while in the performance of duty on September 25, 2006; and (2) whether the Office
properly denied appellant’s claim for continuation of pay.
FACTUAL HISTORY
On September 25, 2006 appellant, then a 50-year-old shipfitter, filed a Form CA-1
traumatic injury claim alleging that he injured his back while in the performance of duty that
day. He felt his back pinch as he was stepping off the brow and the back pain worsened as he

started to needle gun the deck. Appellant stopped work on September 25, 2006 and was released
to light duty on October 18, 2006.
In a September 29, 2006 report, Dr. Diwakar Nagula, an osteopath, noted that appellant’s
April 2005 low back injury had resolved and that he sustained a new injury on September 25,
2006 when he took a step down while carrying a heavy tool bag on his right shoulder. He
provided an impression of low back pain and suspected lumbar herniated nucleus pulposus.
Dr. Nagula recommended a magnetic resonance imaging (MRI) scan and that appellant remain
off work until further notice.
On October 17, 2006 the Office advised appellant that the evidence received was
insufficient to establish that he sustained an injury on September 25, 2006 and that it required
additional factual and medical evidence to determine whether he was eligible for compensation
benefits. Appellant was asked to submit a medical report from his treating physician describing
his symptoms and the medical reasons for his condition and an opinion as to whether his claimed
condition was causally related to his federal employment. The Office requested that he submit
the additional evidence within 30 days.
In response, appellant submitted a September 27, 2006 Form CA-16 authorization for
examination and/or treatment in which the employing establishment authorized Southeast Spine
and Rehabilitation to treat appellant for up to 60 days; a September 25, 2006 mishap report; a
September 27, 2006 mishap memorandum from the employing establishment; and an
October 17, 2006 MRI scan report.1 In an October 18, 2006 workers’ compensation update from
Southeast Spine & Rehabilitation, a left herniated nucleus pulposus at level L4-5 was diagnosed.
Appellant was advised that he could return to work with restrictions.
By decision dated November 28, 2006, the Office denied appellant’s claim, finding that
he failed to submit sufficient medical evidence in support of his claim. By decision dated
December 12, 2006, the Office denied authorization of continuation of pay.2
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of his claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which

1

The MRI scan report noted moderate degenerative disc disease changes at L4-5 with broad-based bulging with
mild central and left-sided protrusion, mild stenosis at the L4-5 level and small facet effusions.
2

On appeal, appellant submitted new medical evidence. However, the Board has no jurisdiction to review
evidence that was not before the Office at the time of its final decision. See 20 C.F.R. § 501.2(c); George A.
Rodriguez, 57 ECAB ___ (Docket No. 05-490, issued November 18, 2005).
3

5 U.S.C. §§ 8101-8193.

2

compensation is claimed are causally related to the employment injury.4 When an employee
claims that he sustained a traumatic injury in the performance of duty, he must establish the fact
of injury, consisting of two components, which must be considered in conjunction with one
another. The first is whether the employee actually experienced the incident that is alleged to
have occurred at the time, place and in the manner alleged. The second is whether the
employment incident caused a personal injury and generally this can be established only by
medical evidence.5
The medical evidence required to establish causal relationship is usually rationalized
medical evidence. Rationalized medical opinion evidence is medical evidence that includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.6 The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.7
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship.9 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.11
ANALYSIS -- ISSUE 1
In this case, it is uncontested that appellant experienced the employment incident at the
time, place and in the manner alleged. The Board therefore finds that the evidence supports that
the employment incident occurred as alleged. The issue, therefore, is whether appellant has
submitted sufficient medical evidence to establish that the September 25, 2006 employment
4

Robert Broome, 55 ECAB 339 (2004).

5

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003). The term injury
as defined by the Act, refers to a disease proximately caused by the employment. 5 U.S.C. § 8101(5). See 20 C.F.R.
§ 10.5(q), (ee).
6

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

7

John W. Montoya, 54 ECAB 306 (2003).

8

Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Id.

11

20 C.F.R. § 10.303(a).

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incident caused an injury. Appellant has not submitted sufficient, probative medical evidence to
establish that the September 25, 2006 employment incident caused a personal injury and
resultant disability.
The only medical documents appellant submitted were Dr. Nagula’s September 29, 2006
report and an October 17, 2006 MRI scan report.12 Dr. Nagula diagnosed low back pain and
suspected a lumbar herniated nucleus pulposus. He opined that appellant was totally disabled.
However, Dr. Nagula did not provide a definite diagnosis as to the cause of appellant’s back pain
or provide a rationalized statement explaining how the employment incident caused or
contributed to appellant’s low back condition. Dr. Nagula’s report is insufficient to establish
appellant’s claim.
While the October 17, 2006 MRI scan report contained findings, the diagnostic report
does not address how appellant’s low back symptoms were caused or aggravated by factors of
appellant’s employment. Without an opinion on causal relation, the MRI scan report is
insufficient to establish appellant’s claim of injury.
There is insufficient probative, rationalized evidence in the record that appellant’s lower
back injury was work related. The Office advised appellant of the evidence required to establish
his claim; however, appellant failed to submit such evidence. Appellant did not provide a
medical opinion which describes or explains how the work incident of September 25, 2006
caused or contributed to his low back injury. Accordingly, he did not establish that he sustained
a low back injury in the performance of duty. The Office properly denied appellant’s claim for
compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8118(a)13 of the Act provides for payment of continuation of pay, not to exceed
45 days, to an employee “who has filed a claim for a period of wage loss due to traumatic injury
with his immediate supervisor on a form approved by the Secretary of Labor within the time
specified in section 8122(a)(2) of this title.”14 The regulations implementing the Act provide that
an employee is not entitled to continuation of pay unless the employee has sustained a traumatic
injury.15

12

While the October 18, 2006 workers’ compensation note from Southeast Spine & Rehabilitation diagnosed left
herniated nucleus pulposus, there is no indication that this report was signed by a physician. To constitute
competent medical opinion evidence, the medical evidence submitted must be signed by a qualified physician. See
Vickey C. Randall, 51 ECAB 357 (2000).
13

5 U.S.C. § 8118(a).

14

Section 8122(a)(2) provides that written notice of injury was given as specified in section 8119, which provides
for a 30-day time limitation for filing a claim of a traumatic injury. 5 U.S.C. § 8119(a), (c), 8122(a)(2).
15

20 C.F.R. § 10.205(a)(1).

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ANALYSIS -- ISSUE 2
To establish entitlement to continuation of pay,16 appellant must sustain a traumatic
injury. In the present case, appellant failed to meet his burden of proof in establishing that he
sustained a lower back injury in the performance of duty on September 25, 2006. As appellant
did not sustain a traumatic injury, he is not entitled to continuation of pay.
The Board notes that appellant is still entitled to reimbursement for payment of expenses
incurred for medical treatment for up to 60 days beginning September 27, 2006, the date the
employing establishment official issued the Form CA-16, authorization for examination. By
Form CA-16, authorization for examination and/or treatment, signed by an employing
establishment official on September 27, 2006, appellant was authorized to review medical care
for a period of up to 60 days at the Southeast Spine and Rehabilitation. The employing
establishment’s authorization for appellant to obtain medical examination and/or treatment
created a contractual obligation to pay for the cost of necessary medical treatment regardless of
the action taken on the claim.17
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a lower back injury
in the performance of duty on September 25, 2006. The Office properly denied his request for
continuation of pay.

16

Continuation of pay is different from compensation for disability. See William E. Ostertag, 33 ECAB 1925,
1935-36 (1982). Continuation of pay, for the purposes of section 8118(a) of the Act, is the employee’s “pay,” while
“compensation” is the money allowance or other benefit paid to an employee for a work-related disability under the
Employees’ Compensation Fund.
17

Kimberly Kelly, 51 ECAB 582 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 12 and November 28, 2006 are affirmed.
Issued: July 23, 2007
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

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

Docket No. 07-833
Issued: September 4, 2007

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 January 29, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 8, 2006 in which an Office hearing
representative affirmed that he was at fault in creating two overpayments, in the amounts of
$9,870.26 and $20,221.07. 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 appellant received an overpayment of compensation in the
amount of $9,870.26 because the Office failed to deduct health benefit premiums for the period
August 11, 1992 through December 30, 2000; (2) whether the Office properly determined that
appellant received an overpayment in the amount of $20,221.97 for the period April 30, 1992 to
June 18, 1993 because he received greater compensation for a schedule award than the amount to
which he was entitled; (3) whether the Office properly found that appellant was at fault in the
creation of both overpayments, thereby, precluding waiver of the recovery; and (4) whether the
Office properly recovered the total amount of the overpayment by reducing the amount of
appellant’s retroactive benefits.

FACTUAL HISTORY
This is the second appeal before the Board. Appellant, then a 47-year-old postal clerk,
filed a claim on December 21, 1990 for a bilateral hand condition. The Office accepted the
condition of carpal tunnel syndrome with authorized surgical release. Appellant stopped work
on December 21, 1990 and has not returned. The Office eventually placed appellant on the
periodic rolls and paid appropriate compensation benefits.
The Office previously accepted a right shoulder and cervical strain arising from a
September 7, 1969 traumatic injury. On October 17, 1972 appellant received a schedule award
for 14 percent right arm impairment for the period March 27, 1972 to January 26, 1973. He
underwent an authorized arthroscopic debridement of the right shoulder on September 23, 1991.
On July 15, 1998 appellant received a schedule award in the amount of $27,369.27 for 19
percent right arm impairment for the period April 30, 1992 to June 18, 1993. He retired from the
employing establishment on August 8, 1992 and has received Office of Personnel Management
(OPM) benefits since February 1, 2003. Appellant was incarcerated from October 14, 1992 to
June 1, 2006 for a Class 2 felony of sexual conduct with a minor.
In an August 4, 2004 decision, the Board reversed a January 31, 2003 Office decision that
terminated appellant’s compensation for wage loss under 5 U.S.C. § 8106(c), effective
January 31, 2003, based on his refusal to accept suitable employment.1 The Board found that the
Office did not follow appropriate procedures. Following the Board’s decision, the Office found
that retroactive compensation was due appellant from February 1, 2003.2
On December 10, 2004 appellant changed his election so that he would receive Office
benefits retroactive to February 1, 2003. The Office placed appellant on the periodic rolls
effective January 23, 2005 and paid appropriate compensation to his dependent spouse through
electronic fund transfer.
In a letter dated September 1, 2005, the Office advised appellant that a supplemental
payment of $6,017.70 was being paid for retroactive compensation due from February 1, 2003 to
June 11, 2005 based on a finding that he was entitled to total disability compensation for the
entire period of his incarceration. The Office attached a memorandum which showed that
appellant’s gross compensation of $74,438.89 less OPM reimbursement of $27,480.00 less
previous payment of $10,848.96 resulting in a net amount of $36,109.93 due. It noted that
appellant had two undeclared overpayments of record. One overpayment was for an amount of
$9,870.26, for a health benefit underdeduction for the period August 11, 1992 to December 30,
2000 for plan code A72. Another overpayment was for an amount of $20,221.97, for a schedule
award overpayment for the right arm for which 19 percent ($27,369.27) was paid but only 5
percent ($7,147.30) was due. It deducted the two undeclared overpayments of record $30,092.23
1

Docket No. 04-766 (issued August 4, 2006).

2

In a May 26, 2005 memorandum, the Regional Solicitor found that section 8148(b) did not prohibit appellant
from directly receiving unreduced FECA benefits while he was in prison as his conviction occurred prior to the
relevant statutory enactment. On June 3, 2005 the Office reimbursed appellant’s spouse payment for past due
compensation benefits from February 1, 2003 to January 22, 2005 after appropriate reimbursement to OPM.

2

($9,870.26 plus 20,221.97) from the $36,109.93 retroactive compensation due and paid appellant
$6,017.70. It advised that preliminary notices for the overpayments would be issued to allow for
due process.
In a letter dated September 6, 2005, the Office advised appellant that it had made a
preliminary determination that he received a $9,870.26 overpayment of compensation for the
period August 11, 1992 to December 30, 2000. The Office indicated that this overpayment
occurred when it failed to deduct premiums for health benefits for plan code A72. It made a
further preliminary determination that appellant was at fault in the creation of the overpayment
as he should have been reasonably aware that no health premiums were being deducted from his
total disability compensation during the period August 11, 1992 to December 30, 2000. The
Office advised appellant that he needed to complete and submit an enclosed Form OWCP-20
overpayment recovery questionnaire within 30 days if he wished to request waiver of the
overpayment. Worksheets of record showed that, during the period August 11, 1992 to
December 30, 2000, an underdeduction of health benefits amounted to $9,870.26. A
November 6, 1992 letter from the Office to the employing establishment, of which appellant was
copied, indicated that the Office was deducting subscription charges for health benefits effective
August 23, 1991.
In a letter also dated September 6, 2005, the Office advised appellant that it had made a
preliminary determination that an overpayment had occurred in the amount of $20,221.97 from
April 30, 1992 to June 18, 1993 because appellant incorrectly received a greater schedule award
of the right upper extremity to which he was not entitled. The Office found that appellant had
received a schedule award for 19 percent permanent impairment to his right arm in the amount of
$27,369.27 which was paid from April 30, 1992 to June 18, 1993. Since appellant had
previously received an award for a 14 percent permanent impairment to the same upper
extremity, which was paid from March 27, 1972 to January 26, 1973, the Office found that
appellant should have only received an award for an additional impairment of five percent or
$7,147.30. The Office found that appellant was not without fault in the matter as he “should
have been reasonably aware that the second award amount was incorrect, since he had already
received an award for his right arm, albeit significantly in the past.” The Office advised
appellant that he needed to submit an enclosed Form OWCP-20 overpayment recovery
questionnaire within 30 days if he wished to request waiver of the overpayment.
In an overpayment recovery questionnaire dated September 13, 2005, appellant listed his
monthly income as $4,946.00, total monthly expenses of $4,694.003 and funds of $3,851.03. He
provided copies of his credit card monthly statements of the Bank of America’s Visa and
Mastercard account. In two undated letters, appellant indicated that his wife first learned in
December 2000 that the health premium was not being deducted as she was scheduled for back
surgery on January 15, 2001. Because the insurance was reinstated, they never thought about it
again. Appellant also stated that, because the schedule awards were for two different conditions,
his carpal tunnel and his shoulder condition, he was not reasonably aware that he was not entitled
to the full amount of the second schedule award. He stated that taking the awards away and the
3

This includes: $1,402.00 for mortgage and association fees; $300.00 for food; $100.00 for clothing; $920.00 for
utilities; $200.00 for other expenses; and $1,672.00 for payments to creditors. The Board notes that this properly
adds to $4,594.00 as opposed to the $4,694.00 stated.

3

long delay in paying back the compensation would create a financial hardship. Appellant also
stated that his wife used the credit cards to remodel her cabin, which she would not have done
had they known compensation would be stopped.
On September 12, 2005 appellant requested a prerecoupment hearing which was held on
July 25, 2006.4 He testified that he did not receive the prior schedule award and referred to a
November 20, 1989 letter which stated that the compensation he received represented his
schedule award. Appellant testified that he received compensation for the period March 27 to
October 18, 1972 and he did not receive compensation again until April 29, 1974, which was at a
reduced rate. He stated that he appealed the rate reduction and the Office restored benefits back
to January 26, 1973. Appellant argued that he never received payment from October 18, 1972 to
January 25, 1973. With respect to his health benefits, he responded that the Office had not
deducted for health benefits. Appellant noted that he was incarcerated from 1992 to May 2006
and stated that he was not at fault with respect to the overpayment related to the health benefits
as he had no idea the Office was not taking the deductions from his check. He additionally noted
that the total overpayment was deducted or withheld from the retroactive benefits the Office had
calculated as $74,438.89.
By decision dated November 8, 2006, an Office hearing representative finalized both the
$9,870.26 overpayment for underdeduction of health benefits and the $20,221.97 overpayment
for the overpayment of a schedule award for which appellant was at fault and not eligible for
waiver. The Office hearing representative found that the Office paid appropriate retroactive
benefits. The hearing representative found that the fact and amount of both overpayments were
correct and appellant was at fault in creating the overpayments as he knew or should have known
the payments were incorrect. The hearing representative found that appellant’s monthly income
was $4,946.00 and that he had a monthly expense of $5,291.33.5 The hearing representative
determined that the record was insufficient to ascertain appellant’s obligations to determine the
appropriateness of a payment schedule and directed that appellant repay the overpayment in its
entirety. The hearing representative noted that the Office had recovered the total amount of
overpayment by reducing the amount of appellant’s retroactive benefits.
LEGAL PRECEDENT -- ISSUE 1
An employee entitled to disability compensation may continue his or her health benefits
under the Federal Employee Health Benefits (FEHB) program. The regulation of OPM, which
administers the FEHB program, provides guidelines for the registration, enrollment and

4

In a letter dated June 4, 2006, appellant informed the Office that he was out of prison.

5

After noting that appellant’s monthly expenses totaled $5,291.33, the Office stated: “With respect to the
monthly expenses of $4,694.00, claimant included $1,402.00 for mortgage and association fees, $300.00 for food,
$100.00 for clothing; $920.00 for utilities, and $200.00 for other expenses. Additionally, claimant indicated that he
had monthly expenses of $1,672.00 for payments to creditors.”

4

continuation of enrollment for federal employees.
§ 890.502(b)(1) provides:

In this connection, 5 C.F.R.

“An employee or annuitant is responsible for payment of the employee’s share of
the cost of enrollment for every pay period during which the enrollment
continues. In each pay period for which health benefits withholdings or direct
premium payments are not made but during which the enrollment of an employee
or annuitant continues, he or she incurs an indebtedness due to the United States
in the amount of the proper employee withholding required for that pay period.”6
In addition 5 C.F.R. § 890.502(d) provides:
“An agency that withholds less than or none of the proper health benefits
contributions from an individual’s pay, annuity or compensation must submit an
amount equal to the sum of the uncollected deductions and any applicable agency
contributions required under section 8906 of the title, 5 United States Code, to
OPM for deposit in the Employees Health Benefits Fund.”7
Thus, under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.8 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.9 The Board has recognized that, when an underwithholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
the Office must pay the full premium to OPM when the error is discovered.10 Section 8129(a) of
the Federal Employees’ Compensation Act provides that where an overpayment of compensation
has been made because of an error of fact or law, adjustment shall be made by decreasing later
payments to which the individual is entitled.11
ANALYSIS -- ISSUE 1
The record reveals that, when appellant retired from the employing establishment, he was
enrolled in health insurance under plan code A72. The record establishes that $9,870.26 in
premiums for health benefits were not deducted for the period August 11, 1992 to
December 30, 2000. Thus, an overpayment was created by the underdeduction of premiums for
the health benefits appellant elected. Appellant, consequently, received an overpayment of
compensation due to the Office’s failure to deduct premiums for health insurance coverage.
Appellant elected to continue receiving health insurance after he retired and is responsible for the
6

5 C.F.R. § 890.502(b)(1).

7

Id. at § 890.502(d).

8

Id. at § 890.502(b)(1).

9

Supra note 7.

10

See Marie D. Sinnett, 40 ECAB 1009 (1989); John E. Rowland, 39 ECAB 1377 (1988); 5 C.F.R. § 890.502.

11

5 U.S.C. § 8129(a).

5

entire amount of the health benefits premiums not deducted from his compensation benefits.12
Therefore, the Office properly determined that appellant received a $9,870.26 overpayment
during the period August 11, 1992 to December 30, 2000.
LEGAL PRECEDENT -- ISSUE 2
Section 8108 of the Federal Employees’ Compensation Act13 provides for the reduction
of compensation for subsequent injury to the same member:
“The period of compensation payable under the schedule in section 8107(c) of
this title is reduced by the period of compensation paid or payable under the
schedule for an earlier injury if -(1) compensation in both cases is for disability of the same member or
function or different parts of the same member or function or for
disfigurement; and
(2) the Secretary of Labor finds that compensation payable for the later
disability in whole or in part would duplicate the compensation payable
for the preexisting disability.”
ANALYSIS -- ISSUE 2
Appellant initially received a schedule award for 14 percent right arm impairment for the
period March 27, 1972 to January 26, 1973. When later medical evidence showed that he had 19
percent impairment of the right arm, the Office issued a second schedule award for an additional
19 percent. Rather than issue a schedule award for an additional 5 percent to bring the total
percentage paid to 19 percent, the Office paid a full 19 percent impairment. As a result,
appellant received compensation for 19 percent impairment, for a total 33 percent impairment
under both awards, when the medical evidence showed that the total impairment to his right
upper extremity was only 19 percent. The second schedule award thus created an overpayment.
As appellant was entitled to only an additional 5 percent and not the full 19 percent paid, he
should have received compensation in the amount of $7,147.30 rather than $27,369.27, which
created an overpayment in the amount of $20,221.97.
Compensation under each schedule award for appellant’s employment injuries was for
disability of or impairment to the right arm. Compensation payable for the later disability or
impairment would duplicate the compensation paid for the preexisting disability or impairment.
The Office, therefore, properly determined that appellant was entitled to a schedule award for
only an additional five percent impairment.

12

See supra notes 7 through 9 and accompanying text.

13

5 U.S.C. § 8108.

6

LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of the Act14 provides that an overpayment of compensation shall be
recovered by the Office unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of [the Act] or would be against
equity and good conscience.15 The Office may not waive the overpayment of compensation
unless appellant was without fault.16 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.17
On the issue of fault, section 10.433 of the Office’s regulations, provides that an
individual will be found at fault if he or she has done any of the following:
“(1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (2) failed to provide information which he or
she knew or should have known to be material; or (3) accepted a payment which
he or she knew or should have known was incorrect.”18
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“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.”19
ANALYSIS -- ISSUE 3
The Office applied the third standard in determining that appellant was at fault in the
creation of both overpayments. In order for the Office to establish that appellant was at fault in
creating the overpayments of compensation, the Office must establish that, at the time appellant
received the compensation checks in question, he knew or should have known that the payment
was incorrect.20
14

5 U.S.C. § 8129(b).

15

Michael H. Wacks, 45 ECAB 791, 795 (1994).

16

Norman F. Bligh, 41 ECAB 230 (1989).

17

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

18

20 C.F.R. § 10.433(a).

19

Id. at § 10.433(b).

20

See Tammy Craven, 57 ECAB ___ (Docket No. 05-249, issued July 24, 2006). See also Lorenzo Rodriguez, 51
ECAB 295 (2000); Robin O. Porter, 40 ECAB 421 (1989).

7

With respect to the $20,221.97 overpayment concerning a July 15, 1998 schedule award,
the Office found that appellant should have reasonably known that he was only entitled to a
schedule award for an additional five percent impairment of his right upper extremity and not the
additional 19 percent. The Office, however, has not sufficiently explained what evidence put
appellant on notice that he knew or should have known that he was accepting an incorrect
payment of compensation. The record does not establish that the Office advised appellant that he
was not entitled to receive two schedule awards for impairment to the same member under the
Act. Moreover, while the Office issued two schedule award decisions were then 20 years apart,
there is no evidence that the Office rescinded any portion of either schedule award before finding
that an overpayment had been created in this case.21 Thus, the Board finds that, under the above
circumstances, the evidence is insufficient to establish that appellant knew or should have known
that he received an incorrect payment.
Inasmuch as it has been determined that appellant was without fault in the creation of the
overpayment in the amount of $20,221.97, the Office may only recover the overpayment in
accordance with section 8129(b) of the Act,22 if a determination has been made that recovery of
the overpayment would neither defeat the purpose of the Act nor be against equity and good
conscience.23 The Office, however, offset this amount from the amount of appellant’s retroactive
benefits. Such an offset is not allowed, as it permits an unrestricted recovery of the offset
portion of the overpayment without regard to the factors set forth for considering waiver in the
Office’s regulations, which denies administrative due process with respect to the amounts
offset.24
Thus, with regard to fault and waiver of the $20,221.97 overpayment, the Board finds
that the Office’s November 8, 2006 decision cannot stand. The preliminary finding that
appellant was at fault and that appellant accepted payments he should have known were
incorrect. The case must be remanded to the Office for consideration of whether recovery of the
overpayment should be waived.

21

The Board has upheld the Office’s authority to reopen a claim at any time on its own motion under section
8128(a) of the Act and, where supported by the evidence, set aside or modify a prior decision and issue a new
decision. See 20 C.F.R. § 10.610. The Board, however, has noted that the power to annul an award is not an
arbitrary one. An award for compensation can only be set aside in the manner provided by the compensation statue.
The Office’s burden of justifying termination or modification of compensation holds true where the Office later
decides that it has erroneously accepted a claim for compensation. In establishing that its prior acceptance was
erroneous, the Office is required to provide a clear explanation of its rationale for rescission. It is a fundamental
principle of the law on rescission, as developed by the Board, that the Office should not be second-guessing a prior
adjudicating claims examiner and simply arrive at a different conclusion on the same evidence. Delphia Y. Jackson,
55 ECAB 373 (2004).
22

5 U.S.C. § 8129(b).

23

The guidelines for determining whether recovery of an overpayment would defeat the purpose of the Act or
would be against equity and good conscience are set forth in 20 C.F.R. §§ 10.434, 10.436, 10.437.
24

Diana L. Booth, 52 ECAB 370, 373 (2001) (finding that the Office s offset practice denied administrative due
process rights with respect the amount offset); Michael A. Grossman, 51 ECAB 673, 678 (2000).

8

With respect to the $9,870.26 overpayment, the Office found that appellant was at fault
because he should have reasonably been aware that no health premiums were being deducted
from his compensation for the period August 11, 1992 to December 30, 2000. It based its
finding of fault on appellant’s receipt of a November 6, 1992 letter from the Office which
advised that it was deducting subscription charges for health benefits effective August 23, 1991.
Appellant does not dispute the amount of the overpayment or that it was created by the Office’s
failure to deduct premiums from his health insurance. Instead, he argues that he was not at fault
as he was incarcerated and first found out health deductions were not taken out of his checks in
December 2000 when his wife was scheduled for a January 2001 operation. The record reflects
that appellant was paid during his period of incarceration and identified as the payee for the
period December 28, 1991 to January 31, 2003.25 He is therefore responsible for the premiums
for health benefits. Further, appellant has not submitted any evidence establishing that his
enrollment did not continue during this period and, in his hearing testimony, he generally
indicated that he was aware that premium deductions should be taken by the Office. As
appellant knew or should have known that the health insurance premiums should have been
deducted from the Office’s November 6, 1992 letter, he accepted a payment which he knew or
should have been expected to know was incorrect. As appellant was at fault in creating the
overpayment, no waiver of the overpayment is possible.
LEGAL PRECEDENT -- ISSUE 4
Section 8129 of the 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 Secretary of Labor by decreasing later payments to which the individual is
entitled.26 The implementing regulations provide that, when an overpayment has been made to
an individual who is entitled to further payments, the individual shall refund to the Office the
amount of the overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, the Office shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize any hardship.27
ANALYSIS -- ISSUE 4
As noted from the above, it is premature to evaluate recovery of the $20,221.07
overpayment of the second schedule award. With respect to the underdeduction of health
premiums, the Office found that recovery of the $9,870.26 could be paid in its entirety by
reducing that amount from appellant’s retroactive benefits. It is appellant’s responsibility to
provide information about income, expenses and assets.28 Initially, the Board notes that the
Office incorrectly noted appellant’s monthly expenses to be $5,291.33 or $4,694.00. The record
25

The payments were sent to appellant’s mailing address or deposited into his account.

26

5 U.S.C. § 8129(a).

27

20 C.F.R. § 10.441(a).

28

Id.

9

reflects that, while appellant listed his monthly expenses as $4,694.00, a proper mathematical
calculation yields $4,594.00, which included $2,922.00 in usual household expenses and
$1,672.00 for payments to creditors.29 The record additionally reflects that appellant stated that
his total monthly income was $4,946.00. Thus, the financial evidence indicated that appellant’s
monthly income exceeded his expenses by $352.00. Appellant additionally listed $3,851.03 in
assets on his overpayment questionnaire and the record reflects that appellant had a retroactive
benefit in a gross amount of $74,438.89. Based on the evidence, the Office did take relevant
evidence into account so as to minimize hardship in recovering the overpayment. The Board
finds that the Office properly followed its regulations in this case. The Office properly
determined that the $9,870.26 overpayment for underdeduction could be recovered by deducting
it from appellant’s retroactive compensation due.30
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment in the amount of $9,870.26 for an underdeduction of health premiums for an
extended period and he was at fault in creation of the overpayment. The Office also properly
directed recovery of the $9,870.26 overpayment by deducting it from appellant’s retroactive
compensation due. The Board further finds that the Office properly determined the fact and
amount of $20,221.07, for an overpayment of a schedule award for the right arm. The Board,
however, finds that the Office improperly determined that appellant was at fault in the creation of
the schedule award overpayment and in its subsequent recovery of the overpayment.

29

As previously noted this amount should be $4,594.00. See supra note 3.

30

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(c)(2) and 6.200.4.d(1)(b) (May 2004).

10

ORDER
IT IS HEREBY ORDERED THAT the November 8, 2006 decision is affirmed in part
with respect to the finding of fact and amount of overpayments and in the finding of fault and
recovery of the underdeduction of health premiums. However, the decision is set aside with
respect to the finding of fault for the overpayment of and recovery of a schedule award and the
case is remanded for further proceedings consistent with this decision.
Issued: September 4, 2007
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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-562
Issued: March 12, 2015

Case Submitted on the Record

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

JURISDICTION
On January 14, 2014 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ (OWCP) decisions dated July 16, September 16 and 17, 2013.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of disability from January 26
to March 8, 2013 causally related to her accepted January 14, 2011 employment injury;
(2) whether appellant has sustained any permanent impairment to a scheduled member of her
body causally related to her accepted left wrist, left thumb, left hand, and left shoulder
conditions, thereby entitling her to a schedule award under 5 U.S.C. § 8107; and (3) whether
OWCP properly refused to reopen appellant’s case for reconsideration of her claim under 5
U.S.C. § 8128.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 40-year-old rural carrier, fell and fractured her left wrist on January 14,
2011, while delivering mail. She filed a claim for benefits on January 15, 2011, which OWCP
accepted for left wrist sprain, left thumb sprain, left hand sprain and left shoulder sprain.
Appellant underwent two surgeries on her left wrist: a left wrist arthroscopy and
debridement and repair of scapholunate ligament tear with anterior carpal ligament capsulodesis
and intercarpal pinning on July 19, 2011; and removal of left wrist hardware on
October 18, 2011. The procedures were performed by Dr. Robert C. Chadderdon, a specialist in
orthopedic surgery and sports medicine.
OWCP granted appellant a schedule award for a 10 percent permanent impairment of the
left arm stemming from her accepted left wrist, left hand, and left shoulder conditions.2
In a January 31, 2013 report, Dr. Dana P. Piasecki, a specialist in orthopedic surgery,
stated that appellant was experiencing left elbow and left shoulder pain. He advised that she was
being treated by Dr. Chadderdon for a left wrist condition stemming from her January 14, 2011
work incident and that in the course of that treatment she related that she was also having pain in
her left shoulder which had persisted since the January 2011 work injury. Dr. Chadderdon
referred appellant to Dr. Piasecki for evaluation of her left shoulder symptoms. He asserted that
her chief complaint involving the left shoulder was pain at the anterolateral and upper lateral
aspect of her arm, which she experienced with overhead activities and at night. Appellant denied
any dramatic weakness, mechanical symptoms or instability complaints in the left shoulder.
On examination of her left upper extremity Dr. Piasecki noted no acute signs of trauma,
full range of motion, and mild biceps pain with no pain over the acromioclavicular (AC) joint.
He stated that appellant underwent radiographic imaging of the left shoulder and left elbow,
which showed no acute fracture, dislocation or joint space narrowing. Dr. Piasecki opined that
her left shoulder complaints following the January 2011 work injury appeared predominantly
related to a rotator cuff contusion and possibly an associated AC joint sprain. He prescribed
physical therapy and anti-inflammatory medication and recommended work restrictions due to
appellant’s left shoulder symptoms. In a Form CA-17 dated February 6, 2013, Dr. Piasecki
outlined work restrictions stemming from her left shoulder condition.
On February 14, 2013 appellant filed a Form CA-2a claim for benefits, alleging that she
sustained a recurrence of disability on January 9, 2013 which was causally related to her
accepted January 14, 2011 employment injury. She stated on the form that her treating physician
had given her permanent work restrictions for a permanent impairment of her left wrist and
placed her on light duty; she stated that she subsequently began to experience left shoulder pain
and advised her treating physician of this development on January 9, 2013. Appellant also stated
that she returned to work on January 10, 2013.

2

The instant record contains no documentation of this schedule award decision. The fact and the amount of this
award, however, have not been challenged by appellant on appeal.

2

In a March 7, 2013 report, Dr. Chadderdon stated that he was seeing appellant for a
follow-up examination of her left wrist. He noted her objections to vocational rehabilitation and
advised that she was now receiving treatment for her left shoulder condition as well, for which
she had received work restrictions. Dr. Chadderdon reported no overall change in appellant’s
left wrist pain, which was aggravated with heavy use. He advised, however, that she had not
really been using the wrist on a heavy basis since her shoulder became problematic.
Dr. Chadderdon stated that the range of motion in her left wrist was extension of 50 degrees and
flexion of 38 degrees, with full pronation and supination. He opined that there was no change in
appellant’s permanent impairment rating and advised that she should maintain the permanent
restrictions in the light-duty category.
Appellant submitted Forms CA-7 requesting compensation for wage loss from
January 26 to March 8, 2013 and Forms CA-7a time analysis showing that she missed work on
those dates.
By letters dated March 8 and 15, 2013, OWCP advised appellant to provide additional
medical and factual evidence in support of her claim for a recurrence of disability as of
January 26, 2013. It advised her that, in order to be entitled to additional medical treatment and
compensation for wage loss as a result of recurrent disability, she was required to provide factual
and medical evidence to substantiate that her disability had occurred or increased due to an
accepted condition. OWCP informed appellant that, if the evidence established that her
disability was due to a new work-related injury or illness, she might need to file a new claim.
OWCP instructed appellant to provide a comprehensive medical report, which included
objective findings relative to the left shoulder, the diagnosis or diagnoses of the left shoulder
condition(s), results of any diagnostics tests and the physician’s well-rationalized opinion as to
how her present left shoulder condition was causally related to the January 14, 2011 employment
injury.
In a March 21, 2013 report, Dr. Piasecki advised that he had been treating appellant since
January 31, 2013 for left shoulder symptoms stemming from the January 31, 2013 employment
injury. He essentially reiterated his previous findings and conclusions and advised that after he
imposed work restrictions and kept her off work, he had released her to return to work without
restrictions on March 18, 2013. Dr. Piasecki stated that appellant had a two percent impairment
rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment3 (A.M.A., Guides).
In an April 16, 2013 report, Dr. Chadderdon reviewed appellant’s history of injury. He
stated that she experienced pain in her left wrist after falling on it during the January 14, 2011
work injury. Appellant then experienced radiating pain to the shoulder and underwent left wrist
surgery on July 19, 2011. Following surgery she underwent extensive therapy and was in regular
therapy until early 2012. Dr. Chadderdon stated that appellant continued to have persistent pain
and restrictions in terms of function and range of motion. He stated that when he saw her again
on January 9 and March 7, 2013 he recommended that she undergo vocational rehabilitation,
3

The Board notes that Dr. Piasecki only referenced the “A.M.A., Guide” and did not indicate what edition or
what section of the A.M.A., Guides he used in rendering his impairment rating.

3

which she stated that it was not possible according to her place of work. Dr. Chadderdon
recommended permanent restrictions in the light-duty category. He stated that, at the time of his
last office visit with her on March 7, 2013, appellant had left shoulder pain.
Dr. Chadderdon advised that appellant had limited range of motion of the wrist with
extension to only 50 degrees, flexion only to 38 degrees, with pain at the extremes of range of
motion. The most recent left wrist x-ray was taken on November 2, 2012, which showed no
significant gapping of the scapholunate interval, with narrowing at the capitolunate joint and
cystic changes in multiple locations including the proximal pole of the scaphoid.
Dr. Chadderdon asserted that the current diagnosis was traumatic arthropathy of the wrist
and hand and pain in the left wrist. It was his opinion that appellant’s January 2011 work injury
was an appropriate mechanism for the diagnosed injury and subsequent surgery that was
necessary to treat her condition. Dr. Chadderdon stated that attention was predominately focused
on her problems with her left wrist during the period January 2011 to January 2013 and that this
was the reason she did not complain significantly of left shoulder pain during this period. He
stated that he documented on January 9, 2013 that she had experienced a recurrence of left
shoulder pain for about a week or two.
In a report dated March 14, 2013, received by OWCP on May 21, 2013, Dr. Piasecki
stated that he saw appellant for follow up of her left shoulder and left elbow pain stemming from
the January 2011 work injury. He advised that her symptoms were consistent with a cuff
contusion and an associated AC joint sprain for which he recommended physical therapy and
anti-inflammatories as well as some light-duty restrictions. Dr. Piasecki advised that appellant
currently had some mild persistent complaints, though things had improved and she did not feel
limited; he related that appellant was eager to try to return to work without any restrictions. He
stated that she was effectively at maximum medical improvement and that he would favor
releasing her at that time without restriction. Dr. Piasecki found that appellant had a two percent
final impairment rating under the A.M.A., Guides.
Dr. Piasecki did not indicate whether he rendered these ratings pursuant to the A.M.A.,
Guides (sixth edition).
In a Form CA-20a dated April 4, 2013, Dr. Chadderdon stated that appellant had been
injured in a fall on January 14, 2011, that she was experiencing left shoulder pain and that her
left shoulder symptoms were consistent with cuff contusion and AC joint sprain. He indicated
that due to her condition she was partially disabled from January 31 to May 8, 2013; and he
checked a box indicating that the diagnosed condition was caused or aggravated by an
employment activity.
On April 15, 2013 appellant filed a Form CA-7 claim for an additional schedule award
based on a partial loss of her left upper extremity.
By letter dated May 6, 2013, OWCP informed Dr. Piasecki that it required additional
medical evidence in order to determine whether appellant was entitled to an additional schedule
award. It advised him that, while he had provided a two percent impairment rating under “the
A.M.A., Guide,” he was required to provide medical opinion as to how he arrived at his

4

impairment rating and to state exactly which A.M.A., Guides he used to calculate his rating.
OWCP further advised that appellant’s claim was accepted for a left shoulder sprain, left thumb
sprain, and left wrist sprain, which generally should have resolved in a matter of weeks and that
schedule awards are provided for conditions that result in a permanent impairment. It noted that
she was previously awarded a 10 percent permanent impairment of the left arm as a result of the
January 14, 2011 work injury.
OWCP specifically asked Dr. Piasecki to submit a medical report and impairment rating
rendered pursuant to the A.M.A., Guides (sixth edition). It requested that appellant submit the
additional evidence within 30 days. Appellant did not submit any additional medical evidence.
By decision dated May 13, 2013, OWCP denied appellant’s claim, finding that the
medical evidence was insufficient to establish that she sustained a recurrence of her January 14,
2011 work injury from January 26 to March 8, 2013. It noted that she had alleged that she
sustained additional medical conditions such as traumatic arthropathy of the wrist and hand and
cuff contusion of your left shoulder; it stated that these conditions were not relevant to the
current issue at hand because she was requesting to expand her claim.
By letter dated June 6, 2013, appellant requested reconsideration of the May 13, 2013
decision. She argued that her diagnosed conditions had worsened since the date she was injured
and treated at the emergency room and OWCP accepted these conditions on January 14, 2011.
Appellant asserted that she had since been diagnosed with traumatic arthropathy of the left wrist
and left hand and left rotator cuff contusion of the left shoulder.
By decision dated July 16, 2013, OWCP found that appellant had no ratable impairment
causally related to her accepted left wrist, left hand and left shoulder conditions and therefore
was not entitled to an additional schedule award.
By decision dated July 18, 2013, OWCP denied modification of the May 13, 2013
decision.
On August 14, 2013 appellant requested reconsideration of the July 18, 2013 decision.
In an August 1, 2013 report, received by OWCP on August 15, 2013, Dr. Chadderdon
stated that appellant’s left wrist had recently worsened after several months of having only mild,
occasional symptoms. Appellant related that the pain did not significantly limit her ability to
work, particularly given her permanent work restrictions. Dr. Chadderdon noted that she had
previously been rated and released in regard to a workers’ compensation claim. He indicated
that the range of motion was substantially similar to previous measurements: extension of about
50 degrees, flexion 42 degrees and full pronation and supination. Dr. Chadderdon stated that he
had appellant undergo x-ray tests of the left wrist, which showed no evidence of a new acute
fracture or dislocation. He advised that there was evidence of developing scapholunate advanced
collapse superior labrum a and posterior wrist with worsening spurring of the radial styloid and
spurring of the more radial margin of the scaphoid and slight tapering of the proximal pole of the
scaphoid and continued evidence of deformity on lateral view.

5

Dr. Chadderdon opined that appellant continued to show radiographic signs of slow, but
definitive progression of disease in her left wrist. He advised that she needed no additional
surgery at that time but that he would consider such intervention in the future.
By decision dated September 16, 2013, OWCP denied modification of the May 13, 2012
OWCP decision.
On August 14, 2013 appellant requested reconsideration of the July 16, 2013 OWCP
decision denying a schedule award and reconsideration of the July 18, 2013 OWCP decision.
The only additional medical evidence she submitted was Dr. Chadderdon’s August 1, 2013
report, which did not contain an impairment rating for her accepted left upper extremity rendered
under the sixth edition of the A.M.A., Guides.
By decision dated September 17, 2013, OWCP denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require OWCP to review its prior decision.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which has resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.5 Where no such rationale is present,
medical evidence is of diminished probative value.6
In order to establish that a claimant’s alleged recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between his or her present condition
and the accepted injury must support the physician’s conclusion of a causal relationship.7
OWCP’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return as needed or computed by the claims
examiner from the date of last examination), a claimant is responsible for submitting an
attending physician’s report, which contains a description of the objective findings and supports

4

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

5

I.J., 59 ECAB 408 (2008); Nicola Bruno, 33 ECAB 1138, 1140 (1982).

6

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stocker, 39 ECAB 1186, 1187-88 (1988).

7

Mary A. Celia, 55 ECAB 626 (2004).

6

causal relationship between the claimant’s current condition and the previously accepted work
injury.8
ANALYSIS -- ISSUE 1
In the instant case, appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates her claimed recurrence of disability for work as of
January 9, 2013 to her accepted left wrist, left thumb, left hand, and left shoulder conditions. For
this reason, she has not discharged her burden of proof to establish that she sustained a
recurrence of disability as a result of her accepted employment condition.
OWCP accepted appellant’s January 14, 2011 employment injury for left wrist sprain,
left thumb sprain, left hand sprain, and left shoulder sprain. The record contains reports from
Drs. Piasecki and Chadderdon. Dr. Piasecki, who treated appellant predominantly for her left
shoulder pain, stated in his January 30, 2013 report that she had pain at the anterolateral and
upper lateral aspect of her arm, which she experienced with overhead activities and at night, but
denied any dramatic weakness, mechanical symptoms, or instability complaints in the left
shoulder. He noted mild biceps pain but found no acute signs of trauma, full range of motion
and no pain over the AC joint on examination; radiographic imaging of the left shoulder showed
no acute fracture, dislocation or joint space narrowing. Dr. Piasecki advised that appellant’s left
shoulder symptoms after the January 2011 work injury mostly related to a rotator cuff contusion
and possibly an associated AC joint sprain. He also imposed work restrictions with regard to the
left shoulder. In his March 14, 2013 report, Dr. Piasecki reiterated that appellant had symptoms
which were consistent with a rotator cuff contusion and an associated AC joint sprain. He stated
that, while she continued to have persistent complaints of mild left shoulder pain, her condition
had improved, she did not feel limited by shoulder symptoms and she was willing to return to
work without restrictions. Dr. Piasecki favored releasing her to full duty at that time without
restrictions.
Dr. Chadderdon began treating appellant for left wrist pain shortly after her January 14,
2011 work injury. He performed the July and October 2011 surgeries to ameliorate her left
condition, outlined work restrictions, prescribed physical therapy, placed her on light duty, and
continued to monitor her wrist condition in periodic progress reports. In his March 7, 2013
report, Dr. Chadderdon stated that appellant was now receiving treatment for her left shoulder
condition as well, for which she had received work restrictions and he referred her to
Dr. Piasecki for treatment. He, however, reported no overall change in her left wrist pain, which
was aggravated with heavy use. Dr. Chadderdon asserted that appellant was not really using the
wrist on a heavy basis since her left shoulder became problematic. He advised that there was no
change in her permanent impairment rating and that she should maintain the permanent
restrictions in the light-duty category. In his April 16, 2013 report, Dr. Chadderdon reviewed the
history of injury and essentially reiterated his findings and conclusions. He stated that
appellant’s current diagnosis was traumatic arthropathy of the wrist and hand and pain in the left
wrist. Dr. Chadderdon opined that her January 2011 work injury was an appropriate mechanism
for the diagnosed injury and that subsequent surgery that was necessary to treat her condition.
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (January 1995).

7

He stated that attention was predominately focused on appellant’s left wrist problems from
January 2011 to January 2013 and that this was the reason that she did not complain significantly
of left shoulder pain during this period. Dr. Chadderdon stated that he documented on January 9,
2013 that she had experienced a recurrence of left shoulder pain for about a week or two. He
stated in his August 1, 2013 report, that appellant’s left wrist had recently worsened after several
months of her having only mild, occasional symptoms; she stated, however, that the pain did not
significantly limit her ability to work, particularly in light of her permanent work restrictions.
Dr. Chadderdon related that x-rays of the left wrist showed no evidence of a new acute fracture
or dislocation. He advised that appellant continued to show radiographic signs of slow, but
definitive progression of disease in her left wrist.
Drs. Piasecki and Chadderdon did not provide a rationalized, probative medical opinion
indicating that appellant sustained a recurrence of disability on January 26, 2013 causally related
to her accepted January 14, 2011 employment injury. While Dr. Piasecki provided diagnoses of
a left rotator cuff contusion and possibly an associated AC joint sprain, he found no acute signs
of trauma and no pain over the AC joint on examination. In addition, radiographic imaging of
the left shoulder showed no acute fracture, dislocation or joint space narrowing. Dr. Piasecki
indicated that appellant had full range of motion in the left shoulder. While he generally
attributed her left shoulder symptoms as of January 26, 2013 to her accepted January 14, 2011
work injury, he did not provide a rationalized, probative medical opinion sufficient to establish
that her period of disability from January 26 to March 8, 2013 was caused or aggravated by the
January 2011 work injury. In lieu of any other known cause for the increase in appellant’s left
shoulder symptoms, Dr. Piasecki believed that the current condition of her left shoulder stemmed
from the January 14, 2011 employment injury. Dr. Chadderdon documented his history of
treating her for her left wrist injury, including two surgeries, a course of physical therapy and
imposing work restrictions. He opined that attention was predominately focused on appellant’s
left wrist problems from January 2011 to January 2013 and that this was the reason she did not
complain significantly of left shoulder pain during this period. Dr. Chadderdon diagnosed
traumatic arthropathy of the wrist and hand and pain in the left wrist and opined that her
January 2011 work injury was “an appropriate mechanism for the diagnosed injury”; however,
this opinion was rendered on April 16, 2013, one month after she returned to work. He stated
that he documented on January 9, 2013 that appellant had experienced a recurrence of left
shoulder pain for about a week or two.
The opinions of Drs. Piasecki and Chadderdon on causal relationship are of limited
probative value in that they did not provide adequate medical rationale in support of his
conclusions.9 They did not describe any alleged recurrence in detail. The opinions of
Drs. Piasecki and Chadderdon are broad and vague as they do not explain whether appellant’s
accepted January 2011 employment injury contributed to her claimed condition and/or disability
as of January 26, 2013. Further, their opinions are equivocal in that they appeared to partially
attribute her left shoulder and left wrist conditions to cumulative trauma and degeneration over a
period of time. Although these physicians refer to the initial January 2011 work injury, they

9

William C. Thomas, 45 ECAB 591 (1994).

8

failed to sufficiently explain whether appellant became disabled beginning January 26, 2013 due
to the accepted injury.10
Appellant has not submitted a physician’s reasoned opinion in which the physician
explains the reasons why her condition as of January 26, 2013 was causally related to the
January 14, 2011 work injury. For these reasons, the medical evidence is insufficient to establish
a recurrence of a medical condition causally related to the accepted left wrist sprain, left hand
sprain, left thumb sprain, and left shoulder conditions.11 The Board affirms OWCP’s July 18,
2013 decision denying modification of its May 13, 2013 decision which denied appellant’s claim
for a recurrence of disability beginning January 26, 2013.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of FECA12 and its implementing regulations13 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 regulations as the
appropriate standard for evaluating schedule losses.14 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.15
ANALYSIS -- ISSUE 2
OWCP accepted the conditions of left wrist sprain, left hand sprain, left thumb sprain, and
left shoulder sprain. Dr. Piasecki treated appellant for her left shoulder symptoms and submitted
reports supporting a schedule award for the left shoulder. However, the only medical evidence
provided consisted of the March 14 and 21, 2013 reports in which he summarily stated that she
had a two percent impairment rating pursuant to the A.M.A., Guides. OWCP requested that
Dr. Piasecki submit a thorough, rationalized medical report containing an impairment evaluation
10

See Mary A. Ceglia, 55 ECAB 656 (2004) (appellant has the burden of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that the condition is
causally related to the employment injury and supports that conclusion with sound rationale).
11

Furthermore, the form reports from Drs. Chadderdon and Piasecki that supported causal relationship with a
checkmark are insufficient to establish the claim, as the Board has held that without further explanation or rationale,
a checked box is not sufficient to establish causation. Debra S. King, 44 ECAB 203 (1992); Salvatore Dante
Roscello, 31 ECAB 247 (1979).
12

5 U.S.C. § 8107.

13

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

14

Id.

15

Veronica Williams, 56 ECAB 367, 370 (2005).

9

rendered in conformance with the applicable tables and protocols of the sixth edition of the
A.M.A., Guides but he did not respond to this request. Dr. Piasecki submitted no additional
impairment evaluations or ratings. As appellant failed to provide an impairment rating rendered
in accordance with the applicable protocols and tables of the A.M.A., Guides, OWCP properly
found that she had no ratable impairment attributable to her accepted left wrist, left hand, and left
shoulder conditions and therefore was not entitled to an additional schedule award and that there
was no basis for a schedule award under the A.M.A., Guides. Accordingly, the Board will affirm
the July 16, 2013 OWCP decision.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 3
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not considered by OWCP; or by submitting relevant and
pertinent evidence not previously considered by OWCP.16 Evidence that repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.17
ANALYSIS -- ISSUE 3
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has she advanced a relevant legal argument not previously
considered by OWCP. She submitted the August 1, 2013 report from Dr. Chadderdon, her
treating physician. The Board has held that the submission of evidence which does not address
the particular issue involved in the case does not constitute a basis for reopening the claim.18
The evidence appellant submitted in connection with her August 14, 2013 reconsideration
request, however, is not pertinent to the issue on appeal; i.e., whether she had any permanent
impairment for the left upper extremity from her accepted left wrist, left hand, and left shoulder
conditions entitling her to an additional schedule award. Dr. Chadderdon’s report is cumulative
and repetitive of his previous reports. Appellant’s reconsideration request failed to show that
OWCP erroneously applied or interpreted a point of law nor did it advance a point of law or fact
not previously considered by OWCP. OWCP did not abuse its discretion in refusing to reopen
her claim for a review on the merits in its September 17, 2013 decision.

16

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

17

Howard A. Williams, 45 ECAB 853 (1994).

18

See David J. McDonald, 50 ECAB 185 (1998).

10

CONCLUSION
The Board finds that appellant has not sustained a recurrence of disability from
January 26 to March 8, 2013 causally related to her accepted January 14, 2011 employment
injury. The Board finds that she has not sustained any permanent impairment to a scheduled
member of her body causally related to her accepted left wrist, left hand, left thumb, and left
shoulder conditions, thereby entitling her to a schedule award under 5 U.S.C. § 8107. The Board
finds that OWCP properly refused to reopen appellant’s case for reconsideration on the merits of
her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 16 and 17 and July 16 and 18, 2013,
2013 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 12, 2015
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jersey City, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1523
Issued: February 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 16, 2011 appellant, through her attorney, timely appealed the February 23, 2011
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has greater than ten percent impairment of the left upper
extremity (LUE).

1
2

5 U.S.C. §§ 8101-8193.

The record on appeal includes evidence received after OWCP issued its February 23, 2011 decision. The
Board’s appellate review is limited to evidence that was in the case record at the time OWCP issued its final
decision. 20 C.F.R. § 501.2(c)(1) (2011). Accordingly, any new evidence received after the February 23, 2011
decision will not be considered on appeal.

FACTUAL HISTORY
Appellant, a 65-year-old retired mail handler, has an accepted claim for left carpal tunnel
syndrome (CTS), which arose on or about June 18, 2004. On March 24, 2009 OWCP granted a
schedule award for 10 percent impairment of the LUE. The award covered a period of 31.2
weeks from June 25, 2007 through January 28. 2008. OWCP based the award on the district
medical adviser’s (DMA) January 17 and December 8, 2008 reports. The DMA, Dr. Henry J.
Magliato, reviewed the June 25, 2007 examination findings of Dr. David Blady, a Boardcertified neurologist, whom OWCP selected to resolve a conflict in medical opinion.3 Dr. Blady,
the impartial medical examiner (IME), diagnosed CTS “moderate in degree,” but he did not
provide a specific impairment rating. Dr. Magliato reviewed the IME’s examination findings
and calculated a 10 percent LUE impairment under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (2001). Dr. Blady later
commented that Dr. Magliato’s 10 percent LUE impairment rating was “certainly reasonable and
appropriate.” However, he did not elaborate.
By decision dated June 3, 2009, the Branch of Hearings & Review set aside the
March 24, 2009 schedule award. The hearing representative found that the IME had failed to
resolve the conflict in medical opinion. She further noted that the DMA, Dr. Magliato, could not
cure the deficiencies in the IME’s report. The hearing representative remanded the case to
OWCP for referral to a new IME. She specifically instructed that the IME provide a rating under
the sixth edition of the A.M.A., Guides (2008), and that this rating be reviewed by a new DMA
not involved in the conflict.
On remand, OWCP referred appellant to Dr. Howard M. Pecker, a Board-certified
orthopedic surgeon, who examined appellant on July 8, 2010 and diagnosed asymptomatic mild
median nerve neuropathy, left wrist. While Dr. Pecker did not provide a specific rating under the
A.M.A., Guides (6th ed. 2008), he noted there was no evidence of loss of use of the upper
extremity. He believed there was evidence of symptom magnification. Dr. Pecker did not
administer any additional diagnostic studies. According to him, the latest electromyography/
nerve conduction study (EMG/NCS), dated October 21, 2009, showed mild developmental CTS,
which by itself was not indicative of significant pathology.
On August 9, 2010 Dr. Magliato, the DMA, reviewed Dr. Pecker’s July 8, 2010
examination findings. He found zero percent impairment of the LUE and noted that the A.M.A.,
Guides (6th ed. 2008) would not apply with a normal examination and such mild
electrodiagnostic changes.
In an August 26, 2010 decision, OWCP found that appellant was not entitled to a
schedule award in excess of the previous award for 10 percent impairment of the LUE. It relied
on Dr. Magliato’s August 9, 2010 report.
Appellant requested a hearing, which was scheduled for December 16, 2010. In the
interim, OWCP authorized a left carpal tunnel release, which was performed on
November 17, 2010. At the December 16, 2010 hearing appellant noted her recent surgery and
3

Appellant’s physician, Dr. David Weiss, found 38 percent LUE impairment and Dr. Morley Slutsky (DMA),
found only 23 percent LUE impairment.

2

argued that she evidently had some impairment otherwise surgery would not have been
necessary.
By decision dated February 23, 2011, the Branch of Hearings & Review affirmed
OWCP’s August 26, 2010 decision. The hearing representative relied on Dr. Magliato’s
August 9, 2010 report.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.4 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.5 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).6
FECA provides that, if there is disagreement between the physician making the
examination for OWCP and the employee’s physician, OWCP shall appoint a third physician
who shall make an examination.7 For a conflict to arise the opposing physicians’ viewpoints
must be of “virtually equal weight and rationale.”8 Where OWCP has referred the employee to
an impartial medical examiner to resolve a conflict in the medical evidence, the opinion of such a
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.9
ANALYSIS
The Board finds that the case is not in posture for decision. In determining that appellant
had no more than 10 percent impairment of the LUE, OWCP relied on the IME’s July 8, 2010
examination findings as interpreted by Dr. Magliato. This latest IME/DMA collaboration was no
more persuasive than Dr. Magliato’s previous interpretation of Dr. Blady’s June 25, 2007
examination findings. In both instances, the designated IME did not provide a specific
impairment rating as requested by OWCP and did not resolve the conflict at issue.

4

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

5

20 C.F.R. § 10.404.

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
7

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA, acting on
behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).
8

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

9

Gary R. Sieber, 46 ECAB 215, 225 (1994).

3

Dr. Pecker’s July 8, 2010 report did not provide a specific impairment rating under the
A.M.A., Guides (6th ed. 2008) in accordance with the previous hearing representative’s specific
instructions on remand. The IME’s report must resolve the conflict in medical opinion.10 If the
report is vague, speculative, incomplete or not rationalized, it is OWCP’s responsibility to secure
a supplemental report from the IME to correct the defect.11 The Board finds that OWCP should
have referred the case back to Dr. Pecker for clarification. Consequently, the case shall be
remanded for further medical development.
CONCLUSION
The case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: February 3, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing & Evaluating Medical Evidence, Chapter
2.810.11d(2) (September 2010).
11

Id.

4