United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
U.S. POSTAL SERVICE, BAY VIEW/ST.
FRANCIS STATION, Milwaukee, WI, Employer
__________________________________________

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Appearances:
David Teergarden, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0418
Issued: February 19, 2021

Case Submitted on the Record

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

JURISDICTION
On December 11, 2019 appellant, through his representative, filed a timely appeal from a
June 25, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established more than 37 percent permanent impairment
of the left lower extremity for which he previously received schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances set forth in
the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On May 3, 1994 appellant, then a 37-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 2, 1994 he twisted his left knee when ascending stairs to a
school carrying a heavy parcel while in the performance of duty. He stopped work on May 3, 1994
and returned to full-duty work on July 18, 1994. OWCP accepted the claim for left medial
meniscus tear and authorized left knee arthroscopic surgery, which was performed on
May 27, 1994. It subsequently expanded acceptance of the claim to include osteoarthritis of the
left lower leg, and other mechanical complications of internal orthopedic devices of the left lower
extremity.
On June 13, 1995 appellant filed a claim for a schedule award (Form CA-7). By decision
dated December 7, 1995, OWCP granted appellant a schedule award for two percent permanent
impairment of the left lower extremity. The period of the award ran for 5.76 weeks from
December 8, 1994 to January 17, 1995.
In a letter dated February 12, 1996, appellant requested reconsideration of the December 7,
1995 schedule award decision. By decision dated April 30, 1996, OWCP granted appellant a
schedule award for an additional six percent permanent impairment of the left lower extremity,
resulting in a schedule award for a total eight percent left lower extremity permanent impairment.
The period of the award ran for 23.04 weeks from December 8, 1994 to May 18, 1995.
OWCP accepted a claim for a recurrence of medical treatment (Form CA-2a) on March 1,
2002 and authorized left knee arthroscopy with partial medial meniscectomy and tibial osteotomy,
which occurred on August 27, 2002. It paid wage-loss compensation for periods of disability.
On June 27, 2003 appellant filed a Form CA-7 for an increased schedule award. By
decision dated April 21, 2004, OWCP granted a schedule award for an additional 22 percent
permanent impairment of his left lower extremity, resulting in a total 30 percent left lower
extremity permanent impairment. The period of the award ran for 63.36 weeks from June 11, 2003
to August 27, 2004.
Appellant, after undergoing two additional left knee surgeries, again requested an increased
schedule award, Form CA-7, on August 14, 2009. By decision dated November 18, 2009, OWCP
granted a schedule award for an additional 7 percent permanent impairment, resulting in a total 37

3
Docket No. 17-1628 (issued February 13, 2018), petition for recon. denied, Docket No. 17-1628 (issued
August 17, 2018).

2

percent left lower extremity permanent impairment. The period of the award ran for 20.16 weeks
from September 10, 2009 to January 29, 2010.
On June 18, 2013 appellant filed a Form CA-7 for an increased schedule award. By
decision dated May 27, 2015, OWCP denied appellant’s claim. It found that the medical evidence
did not establish greater than the 37 percent permanent left lower extremity impairment previously
awarded.
On June 24, 2015 appellant requested a telephonic hearing before an OWCP hearing
representative. By decision dated January 8, 2016, the hearing representative set aside the May 27,
2015 decision as further development of the evidence was required. She found that OWCP had
incorrectly found a conflict in the medical opinion evidence as the 2014 opinion of Dr. Mysore S.
Shivaram, a Board-certified orthopedic surgeon and second opinion physician, was based on a
current examination, and that the report of Dr. M. Stephen Wilson, the treating family practitioner,
was not. The hearing representative further found that the opinion of Dr. Matthew Jimenez, the
Board-certified orthopedic surgeon whom she noted was improperly designated as an impartial
medical examiner (IME), to be of no probative value as he failed to provide an impairment rating
using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).4 She instructed OWCP to provide the DMA with
Dr. Shivaram’s report for review and provide an opinion on appellant’s permanent impairment.
By decision dated March 18, 2016, OWCP denied appellant’s claim for an increased
schedule award.
On April 6, 2016 appellant again requested a telephonic hearing before an OWCP hearing
representative, which was held on December 5, 2016. By decision dated January 30, 2017,
OWCP’s hearing representative affirmed the March 18, 2016 decision. He found the weight of
the medical opinion evidence established that appellant did not have more than the 37 percent left
lower extremity permanent impairment previously award.
On July 24, 2017 appellant, through his representative, appealed to the Board. By decision
dated February 13, 2018, the Board set aside the January 30, 2017 decision, finding that there was
an unresolved conflict in the medical opinion evidence between Dr. Wilson, appellant’s treating
physician, and OWCP’s DMA regarding whether appellant’s total knee replacement had a good
or poor result pursuant to Table 16-3, page 511 of the A.M.A., Guides.5 The Board instructed
OWCP to refer appellant to an IME for a rationalized medical opinion with respect to appellant’s
employment-related permanent impairment of the left lower extremity under the sixth edition of
the A.M.A., Guides. The Board further instructed OWCP to issue a de novo decision after such
further development of the evidence as necessary.

4

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

5

Supra note 3.

3

On August 1, 2018 OWCP referred appellant to Dr. Christ Pavlatos, a physician Boardcertified in orthopedic surgery and internal medicine, to resolve the conflict in the medical opinion.
It provided Dr. Pavlatos with appellant’s case record and a statement of accepted facts (SOAF).
In an August 27, 2018 report, Dr. Pavlatos noted appellant’s history of injury and medical
treatment. He related that review of appellant’s left knee x-rays showed evidence of total knee
arthroplasties and prior Austin osteotomy with reasonable alignment and some loosing around the
prosthesis. Based on appellant’s persistent pain, Dr. Pavlatos recommended bone scans and
computerized tomography scans with spot views and fluid checking for sensitivity and culture to
rule out a possible low grade infection. He noted that maximum medical improvement (MMI)
could not be determined at that time due to appellant’s possible infection and recommendation for
further workup. Using Table 16-3, Knee Regional Grid, he assigned a class 4 for total knee
arthroscopy, which had a default value of 67 percent.6 Dr. Pavlatos assigned a grade modifier for
functional history (GMFH) of two using Table 16-6, page 516, and a grade modifier for clinical
studies (GMCS) of two using Table 16-8, page 519. Application of the net adjustment formula
resulted in no adjustment and a total rating of 67 percent permanent impairment of the left lower
extremity. Dr. Pavlatos noted that MMI could not be determined due to appellant’s possible
infection and the workup he recommended.
On November 15, 2018 OWCP referred Dr. Pavlatos’ report to the DMA. In a
November 27, 2018 report, the DMA reviewed Dr. Pavlatos’ report and his recommendation for a
further workup for possible left knee joint infection. He recommended a second opinion to
determine whether further workup was necessary, whether MMI had been reached and, if so, a
physical examination which provided three sets of left knee range of motion (ROM) measurement.
On February 5 and April 8, 2019 OWCP referred appellant to Dr. Allan Brecher, a Boardcertified orthopedic surgeon, for a second opinion evaluation to address permanent impairment of
appellant’s left lower extremity as defined by the sixth edition of the A.M.A., Guides, and to
provide an opinion as to whether appellant had reached MMI.
In a May 1, 2019 report, Dr. Brecher reported that appellant had reached MMI on
August 27, 2018, the date of Dr. Pavlatos’ examination. In accordance with the sixth edition of
the A.M.A., Guides, he determined the diagnosis-based impairment (DBI) method provided a
greater impairment rating than the ROM method. Utilizing Table 16-3, Knee Regional Grid of the
sixth edition of the A.M.A., Guides, Dr. Brecher assigned a class of diagnosis (CDX) of 4 for the
diagnosis of total knee replacement based on the medical records and moderate motion deficit,
which was a poor result.7 He assigned a GMFH of 1, a grade modifier for physical examination
(GMPE) of 2, and a GMCS of 2.8 Application of the net adjustment formula warranted movement
two places to the left of the default value to class A, totaling 59 percent permanent impairment of

6

Supra note 4 at 511.

7

Id.

8

Id. at 516, 517, 519.

4

the left lower extremity. Dr. Brecher also related that no further workup was necessary as appellant
did not want to undergo further procedures.
In a June 9, 2019 report, the DMA reviewed Dr. Brecher’s report and disagreed with his
impairment rating. Using Table 16-3, p. 511, he assigned a CDX of 3 for mild ROM and mild
instability. The DMA used Dr. Brecher’s findings in assigning a GMPE of 1 instead of 2.
Application of the net adjustment formula warranted movement two places to the left of the default
value to class A, totaling 31 percent permanent impairment of the left lower extremity.
By decision dated June 25, 2019, OWCP denied appellant’s claim for an increased
schedule award, finding that appellant was entitled to no more than 37 percent permanent
impairment of the left lower extremity previously received.
LEGAL PRECEDENT
Under section 8107 of FECA9 and section 10.404 of the implementing federal
regulations,10 schedule awards are payable for permanent impairment of specified body members,
functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for 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.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment CDX, which
is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS.13 The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).14
In determining impairment for the lower extremities, an evaluator must establish the
appropriate diagnosis for each part of the lower extremity to be rated. With respect to the knee,
the relevant portion of the leg for the present case, reference is made to Table 16-3 (Knee Regional
Grid) beginning on page 509.15 After the CDX is determined from the Knee Regional Grid
(including identification of a default grade value), the net adjustment formula is applied using the
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

12
A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
13

Id. at 493-556.

14

Id. at 521.

15

Id. at 509-11.

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GMFH, GMPE, and GMCS. The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).16 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations of
modifier scores.17
Section 8123(a) of FECA provides that, if there is 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 an examination.18 When there are opposing reports
of virtually equal weight and rationale, the case must be referred to an IME, pursuant to section
8123(a) of FECA (5 U.S.C. § 8123(a)), to resolve the conflict in the medical evidence.19 Where a
case is referred to an IME 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.20
OWCP procedures provide that, if a case has been referred for a referee evaluation to
resolve the issue of permanent impairment, it is appropriate for OWCP’s medical adviser to review
the calculations to ensure the referee physician appropriately used the A.M.A., Guides. The
procedures further note that the Board has held that, while an OWCP medical adviser may review
the opinion of a referee specialist in a schedule award case, the resolution of the conflict is the
specialist’s responsibility. OWCP’s medical adviser cannot resolve a conflict in medical opinion.
If necessary, clarification by the referee examiner may be needed.21
ANALYSIS
The Board finds that this case is not in posture for decision.
In the prior appeal, the Board remanded the case to OWCP for referral of appellant to an
IME for a rationalized medical opinion as to whether appellant’s total knee replacement had a
good or poor result for rating appellant’s permanent impairment under the sixth edition of the
A.M.A., Guides.
On remand OWCP referred appellant for an impartial medical examination in accordance
with the Board’s instructions to Dr. Pavlatos. In an August 27, 2018 report, Dr. Pavlatos
16

Id. at 515-22.

17

Id. at 23-28.

18

Supra note 2 at § 8123(a). See R.C., Docket No. 18-0463 (issued February 7, 2020); see also G.B., Docket No.
16-0996 (issued September 14, 2016).
19

M.G., Docket No. 19-1627 (issued April 17, 2020); M.R., Docket No. 19-0526 (issued July 24, 2019); C.R.,
Docket No. 18-1285 (issued February 12, 2019).
20

Id.

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.8(g) (September 2010); Richard R. LeMay, 56 ECAB 341 (2005). See K.D., Docket No. 19-0281 (issued
June 30, 2020).

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determined that appellant had total permanent impairment of his left lower extremity of 67 percent.
He indicated that, using Table 16-3 (Knee Regional Grid) on page 511 of the sixth edition of the
A.M.A., Guides, appellant’s left lower extremity condition should be considered under the
diagnosis-based category relating to total knee replacement. Dr. Pavlatos noted that appellant’s
condition would fall under class 4 under Table 16-3, due to poor result. With respect to grade
modifiers, he referenced Table 16-6, Table 16-7, and Table 16-8 on pages 516 through 519 and
indicated that appellant had a GMFH of 2, a GMPE of 2, and a GMCS of 2. Dr. Pavlatos advised
that application of the net adjustment formula yielded the result of 0 and default value of 67 percent
permanent impairment on Table 16-3. He reported that MMI could not be determined based on a
possible infection and he recommended additional workup related to this issue.
On November 27, 2018 the DMA reviewed Dr. Pavlatos’ report and recommended that
appellant be referred to a second opinion physician to determine whether further workup was
needed, whether appellant had reached MMI and, if so, for three sets of measurements of
appellant’s left knee ROM. Based on the DMA’s recommendation, OWCP referred appellant for
a second opinion evaluation with Dr. Brecher who found that appellant had 59 percent left lower
extremity permanent impairment. The DMA, in a June 9, 2019 report, reviewed Dr. Brecher’s
report and concluded that appellant had 31 percent left lower extremity permanent impairment.
Instead of evaluating whether the report of Dr. Pavlatos, the IME, constituted the special
weight of the medical evidence with respect to permanent impairment, OWCP decided that the
weight of the medical evidence rested with the June 9, 2019 report of the DMA, who provided an
opinion that appellant had 31 percent permanent impairment of his left lower extremity based on
Dr. Brecher’s May 11, 2019 second opinion report. However, OWCP’s procedures and Board
precedent provide that, while OWCP’s DMA may review the opinion of a referee specialist in a
schedule award case, the resolution of the conflict is the specialist’s responsibility and OWCP’s
DMA cannot resolve a conflict in medical opinion.22
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such examiner requires clarification or
elaboration, OWCP has the responsibility to secure a supplemental report from the examiner for
the purpose of correcting the defect in the original opinion.23 OWCP found that Dr. Pavlatos’
report required further clarification regarding the questions posed and should have referred the
case back to Dr. Pavlatos. Instead, OWCP requested another permanent impairment rating from
Dr. Brecher. Therefore, the case shall be remanded to OWCP to provide Dr. Pavlatos an
opportunity to provide clarification of his opinion that appellant has 67 percent permanent
impairment of his lower extremity under the standards of the sixth edition of the A.M.A., Guides.
After such other development as may be deemed necessary, OWCP shall issue a de novo decision
regarding appellant’s claim for an increased left lower extremity schedule award.24
22

Id.

23

K.C., Docket No. 19-1251 (issued January 24, 2020); F.H., Docket No. 17-1924 (issued January 25, 2019);
Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 ECAB 1071 (1979); see also supra note 21 at Part 2 -Claims, Developing and Evaluating Medical Evidence, Chapter 2.810(11)(e) (September 2010).
24

Id.

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CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: February 19, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Allen, TX, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1537
Issued: June 20, 2019

Case Submitted on the Record

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

JURISDICTION
On August 8, 2018 appellant, through counsel, filed a timely appeal from an April 30, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 30, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability for
the period February 13 through March 31, 2017 causally related to her accepted employment
injuries.
FACTUAL HISTORY
On February 13, 2017 appellant, then a 40-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed right shoulder pain and right neck pain due
to factors of her federal employment, including using her “right side for doing [her] job every day.”
She indicated that she first became aware of her condition on January 15, 2017 and first realized
that it had been caused or aggravated by her federal employment on February 8, 2017. Appellant
stopped work on February 13, 2017.
In a duty status report (Form CA-17) dated February 13, 2017, Dr. Mallapur S. Rao, a
family medicine specialist, diagnosed right shoulder sprain due to a January 30, 2017 work injury
and indicated that appellant had injured her right shoulder three weeks prior while carrying mail,
and she continued working thereafter. He advised that she was not capable of returning to work.
In an initial medical narrative report dated February 13, 2017, Dr. Rao noted that appellant
continued to perform her normal job duties through February 13, 2017 with a great amount of
difficulty and discomfort. He diagnosed cervical disc disorder with radiculopathy, right rotator
cuff sprain and strain, and cervical sprain and strain. Dr. Rao advised that appellant was to remain
off work in order to avoid the possibility of reinjury or reaggravation until further notice.
In a note dated February 27, 2017, Dr. Rao advised that appellant was to remain off work
until March 27, 2017.
By decision dated April 7, 2017, OWCP accepted the claim for cervical disc disorder with
radiculopathy (mid-cervical region), sprain of right rotator cuff capsule, strain of muscle(s) and
tendon(s) of the rotator cuff of right shoulder, sprain of ligaments of cervical spine, and strain of
muscle, fascia, and tendon at neck level.
Appellant subsequently submitted a note dated March 27, 2017 from Dr. Rao who advised
that she was to remain off work until April 24, 2017.
In two duty status reports (Form CA-17) dated February 23 and March 27, 2017, Dr. Rao
reiterated his opinion that appellant was not capable of returning to work.
In a note dated May 22, 2017, Dr. Rao advised that appellant was to remain off work until
June 19, 2017.
Appellant filed a claim for wage-loss compensation (Form CA-7) for the period
February 13 through March 31, 2017.
In a development letter dated July 3, 2017, OWCP advised appellant of the deficiencies of
her claim. It specifically requested a comprehensive narrative report from her physician, which
included a history of the injury and a thorough examination with objective findings, as to how her
2

condition(s) had worsened such that she was no longer able to perform the duties of her position
when she stopped work on February 13, 2017. OWCP afforded appellant 30 days to respond.
In response, appellant submitted a note and a duty status report (Form CA-17) dated
July 17, 2017 from Dr. Kent Zieser, a Board-certified internist, who diagnosed cervical disc
disease with radiculopathy and opined that she was not capable of returning to work.
By decision dated August 8, 2017, OWCP denied appellant’s claim for compensation
finding that the medical evidence of record had not established total disability for the period
February 13 through March 31, 2017 causally related to her accepted employment injuries.
On September 5, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted reports dated May 22 and June 13, 2017 from Dr. Christopher Chun,
a Board-certified anesthesiologist and pain medicine specialist, who diagnosed radiculopathy,
cervical region, and other cervical disc displacement, mid-cervical region. Dr. Chun reported that
she had been involved in a work-related accident on January 15, 2017 and her pain had been
worsening since the date of the incident due to repetitive motion. He related that appellant was
currently dependent on analgesics for pain relief and her activities of daily living were limited.
On February 10, 2017 Dr. Rao related that appellant’s initial onset of pain began on
February 10, 2017 and reported increased pain with range of motion of the cervical spine and any
type of lifting. He also reported that her symptoms were aggravated while at work and trying to
sleep. Dr. Rao later indicated that appellant reported being injured on January 30, 2017 while at
work. He advised that she was to remain off work in order to avoid the possibility of reinjury or
reaggravation until further notice.
In a report dated August 15, 2017, Dr. Zieser indicated that appellant’s initial onset of pain
began on January 30, 2017 while at work and diagnosed cervical disc disorder with radiculopathy,
right rotator cuff sprain and strain, and cervical sprain and strain. He advised that she was to
remain off work in order to avoid the possibility of reinjury or reaggravation until further notice.
A telephonic hearing was held before an OWCP hearing representative on
February 14, 2018. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
In a note and a duty status report (Form CA-17) dated March 26, 2018, Dr. Zieser
diagnosed cervical degenerative disc disease and radiculopathy and advised that appellant was not
capable of returning to work.4
By decision dated April 30, 2018, an OWCP hearing representative affirmed the April 8,
2017 decision finding that the medical evidence of record was insufficient to establish that
appellant was totally disabled for the period claimed due to her accepted work-related conditions.
4
The record also contains two reports dated September 11, 2017 from Dr. Rajesh G. Arakal, a Board-certified
orthopedic surgeon, who recommended surgery for appellant’s cervical conditions. On April 2, 2018 Dr. Andrew R.
Block, a Ph.D. in psychology, cleared appellant for an OWCP-approved cervical surgery.

3

She found that appellant’s physicians provided no reasoning, other than a prophylactic one, for
taking her off work, stating that they wanted to avoid “reinjury or reaggravation.”
LEGAL PRECEDENT
Section 8102(a) of FECA5 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”6 This meaning, for brevity, is expressed as disability for work.7
For each period of disability claimed, the employee has the burden of proving that he was disabled
for work as a result of the accepted employment injury.8 Whether a particular injury caused an
employee to be disabled for employment and the duration of that disability are medical issues
which must be proven by the preponderance of the reliable, probative, and substantial medical
evidence.9
Disability is not synonymous with physical impairment, which may or may not result in an
incapacity to earn wages. An employee who has a physical impairment causally related to his or
her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA, and is not entitled
to compensation for loss of wage-earning capacity. The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
for the period February 13 through March 31, 2017 causally related to her employment injuries.
While OWCP accepted that appellant sustained cervical disc disorder with radiculopathy
(mid-cervical region), sprain of right rotator cuff capsule, strain of muscle(s) and tendon(s) of the
rotator cuff of right shoulder, sprain of ligaments of cervical spine, and strain of muscle, fascia,
and tendon at neck level due to factors of her federal employment, she bears the burden of proof
to establish, through rationalized medical evidence, that she was totally disabled during the

5

5 U.S.C. § 8102(a).

6

20 C.F.R. § 10.5(f); see also N.M., Docket No. 18-0939 (issued December 6, 2018); William H. Kong, 53 ECAB
394 (2002).
7

See T.O., Docket No. 17-1177 (issued November 2, 2018); Roberta L. Kaaumoana, 54 ECAB 150 (2002).

8

See T.O., id.; William A. Archer, 55 ECAB 674 (2004).

9

See T.O., id.; Fereidoon Kharabi, 52 ECAB 291-92 (2001).

10

J.R., Docket No. 17-0926 (issued July 12, 2018); Fereidoon Kharabi, id.

4

claimed period and that her disability was causally related to the accepted injuries.11 Appellant
stopped work on February 13, 2017. The Board finds that she has not submitted rationalized
medical evidence explaining how the accepted employment injury caused her to be disabled for
work for the period February 13 through March 31, 2017.
In his reports, Dr. Chun diagnosed radiculopathy, cervical region, and other cervical disc
displacement, mid-cervical region. He reported that appellant had been involved in a work-related
accident on January 15, 2017 and her pain had been worsening since the date of the incident due
to repetitive motion. Dr. Chun related that she was currently dependent on analgesics for pain
relief and her activities of daily living were limited. The Board finds that this evidence failed to
provide a probative medical opinion on whether appellant was disabled on the dates at issue due
to her accepted right shoulder and cervical conditions.12 Consequently, the above-noted evidence
is insufficient to satisfy her burden of proof.
In response to OWCP’s July 3, 2017 development letter, appellant submitted numerous
form reports from her physicians, Drs. Rao and Zieser, indicating that she was not capable of
working and advising her to remain off work in order to avoid the possibility of reinjury or
reaggravation until further notice. Although Drs. Rao and Zieser opined that she was totally
disabled for work, their opinions are conclusory in nature and fail to explain how the accepted
cervical and right shoulder conditions were responsible for her disability and why she could not
perform her federal employment during the period claimed.13 Furthermore, they failed to explain
how appellant’s work-related conditions had worsened such that she was no longer able to perform
her federal duties when she stopped working on February 13, 2017. Consequently, the Board finds
that the reports from Drs. Rao and Zieser are insufficient to establish her claim that she was totally
disabled for the period February 13 through March 31, 2017, causally related to her accepted
employment injuries.
The Board finds that appellant’s physicians have not provided sufficiently rationalized
medical opinion evidence establishing that she was disabled for the period February 13 through
March 31, 2017 causally related to her accepted right shoulder and cervical conditions. Thus,
appellant has not met her burden of proof to establish that she is entitled to compensation for total
disability.
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 met her burden of proof to establish total disability
for the period February 13 through March 31, 2017 causally related to her accepted employment
injuries.
11

See supra notes 8 and 9. See also V.P., Docket No. 09-0337 (issued August 4, 2009).

12

See Amelia S. Jefferson, 57 ECAB 183 (2005).

13

See J.J., Docket No. 15-1329 (issued December 18, 2015).

5

ORDER
IT IS HEREBY ORDERED THAT the April 30, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 20, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, San Diego, CA, Employer
__________________________________________

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

Docket No. 16-0738
Issued: May 19, 2016

Case Submitted on the Record

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

JURISDICTION
On March 3, 2016 appellant filed a timely appeal from an October 23, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 15 percent permanent impairment of his left
upper extremity, for which he has received schedule awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case has previously been before the Board.2 The facts and circumstances set forth in
the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth
below.
On June 29, 2009 appellant, then a 53-year-old special agent, filed a traumatic injury
claim (Form CA-1) alleging that he sustained injuries in the performance of duty on June 12,
2009 when a ladder he was climbing collapsed. OWCP initially accepted a closed left radial
neck fracture of the elbow on August 6, 2009. In addition, it subsequently accepted cervical
strain, left shoulder impingement, and left carpal tunnel syndrome. Appellant underwent a left
carpal tunnel release on January 21, 2010 and left shoulder arthroscopic surgery with excision of
the distal clavicle on September 13, 2010.
In a report dated March 30, 2011, Dr. Tiffany Shay Alexander, Board-certified in
occupational medicine, provided results upon examination. She opined that appellant had 20
percent left upper extremity impairment under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
In a report dated October 24, 2011, Dr. Arthur S. Harris, an OWCP medical adviser,
reviewed Dr. Alexander’s findings and opined that, under the sixth edition of the A.M.A.,
Guides, appellant had 10 percent left upper extremity permanent impairment. He indicated that
his rating was based on impairments to the shoulder, elbow, and wrist.
By decision dated September 26, 2012, OWCP issued a schedule award for 10 percent
permanent impairment to the left arm. The period of the award was 31.20 weeks commencing
March 30, 2011.
Appellant requested reconsideration and submitted an October 9, 2012 report from
Dr. Joseph Tauber, a Board-certified orthopedic surgeon. Dr. Tauber opined that appellant had
21 percent left upper extremity permanent impairment, based on left carpal tunnel syndrome, left
shoulder impingement, and elbow tenderness.
OWCP denied modification of the schedule award determination by decision dated
April 25, 2013. It found that Dr. Tauber had not reviewed the prior medical evidence and his
report was insufficient to establish error in the September 26, 2012 decision.
Appellant filed an appeal of the April 25, 2013 decision, and by order dated February 4,
2014, the Board set aside the April 25, 2013 decision and remanded the case to OWCP.3 The
Board found that the issue before OWCP was not reconsideration, but a request for an increased
schedule award. The case was therefore remanded for a proper decision with respect to a claim
for an increased schedule award.

2

Docket No. 13-1781 (issued February 4, 2014); Docket No. 15-033 (issued March 2, 2015).

3

Docket No. 13-1781 (issued February 4, 2014).

2

OWCP referred Dr. Tauber’s report to an OWCP medical adviser for review. In a report
dated April 1, 2013, the OWCP medical adviser opined that appellant had 15 percent permanent
impairment to the left upper extremity based on Dr. Tauber’s October 9, 2012 report.
By decision dated January 22, 2014, OWCP issued a schedule award for an additional
five percent permanent impairment to the left upper extremity. The period of the award was
15.60 weeks commencing October 19, 2012.
Appellant submitted a request for review of the written record to the Branch of Hearings
and Review on February 20, 2014. By decision dated August 5, 2014, an OWCP hearing
representative affirmed the January 22, 2014 OWCP decision. He found the weight of the
medical evidence was represented by the OWCP medical adviser, Dr. Harris.
Appellant filed an appeal of the August 5, 2014 hearing representative decision. On
March 2, 2015 the Board affirmed the August 5, 2014 decision.4 The Board found that the
OWCP medical adviser had properly applied the A.M.A., Guides and his report represented the
weight of the medical evidence. With respect to the left shoulder, the Board noted the medical
adviser had properly applied Table 15-5, since this table indicates that when there are two
diagnoses, only the diagnosis with the highest impairment rating is used. As to carpal tunnel
syndrome, it was the medical adviser who properly explained how the impairment was calculated
under Table 15-23.
Appellant continued to submit reports from treating physician Dr. Alexander. In a report
dated May 19, 2015, Dr. Alexander provided results on examination and diagnosed cervical
strain with radicular symptoms and paresthesias. By report dated July 20, 2015, he provided
results on examination and diagnosed neck strain with symptoms of cervical radiculitis and left
carpal tunnel syndrome.
In a report dated July 7, 2015, Dr. Larry Dodge, a Board-certified orthopedic surgeon,
provided a history and results on examination, noted tenderness in the lower cervical spine, and
reported that a June 9, 2015 magnetic resonance imaging (MRI) scan showed moderate central
and foraminal narrowing at C4-5. Dr. Dodge diagnosed history of cervical strain and contusion,
moderate cervical stenosis at C4-5, and left shoulder contusion and sprain with presumptive
impingement syndrome. He opined that the diagnosed conditions were causally related to the
employment injury.
In a letter to OWCP dated July 11, 2015, appellant noted that he believed the continuing
medical evidence confirmed 21 percent permanent impairment of the left arm. He submitted an
August 27, 2015 report from Dr. Dodge, reporting that electrodiagnostic testing on August 24,
2015 showed mild carpal tunnel syndrome, with no evidence of obvious cervical radiculopathy.
Dr. Dodge reported that appellant had full range of motion in his upper extremities.
OWCP referred the new medical evidence to an OWCP medical adviser for an opinion as
to whether appellant had an additional permanent impairment to his left upper extremity. By
report dated October 1, 2015, OWCP medical adviser Dr. Harris opined that the medical
4

Docket No. 15-033 (issued March 2, 2015).

3

evidence did not establish an increased permanent impairment. He noted that he had previously
reviewed the record on April 1, 2013 and that there had been no change with respect to increased
permanent impairment.
By decision dated October 23, 2015, OWCP found that appellant had not established
more than 15 percent permanent impairment was warranted.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.5 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6
A claimant seeking compensation under FECA has the burden to establish the essential
elements of her claim.7 With respect to a schedule award, it is appellant’s burden of proof to
establish an increased schedule award.8 A claimant may seek an increased schedule award if the
evidence establishes that he sustained an increased impairment causally related to an
employment injury.9
Under OWCP procedures, medical evidence to support a schedule award should include a
report that shows that the impairment has reached a date of maximum medical improvement
(MMI), describe the impairment in sufficient detail for the claims examiner to visualize the
character and degree of disability, and give a percentage of impairment under the A.M.A.,
Guides.10 The report should include a history of clinical presentation, physical findings,
functional history, clinical studies or objective tests, analysis of findings, and the appropriate
impairment based on the most significant diagnosis, as well as a discussion of how the
impairment rating was calculated.11

5

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
6

A. George Lampo, 45 ECAB 441 (1994).

7

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

8

Edward W. Spohr, 54 ECAB 806, 810 (2003).

9

See Rose V. Ford, 55 ECAB 449 (2004).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(b) (February 2013).
11

Id. at Chapter 2.808.6(a)(1).

4

ANALYSIS
In the present case, the Board had previously reviewed the medical evidence of record as
of August 5, 2014 and found the probative evidence established no more than 15 percent left
upper extremity permanent impairment. The Board’s review of the previous medical evidence of
record is res judicata.12 Appellant submitted additional medical evidence and claimed that his
permanent impairment was 21 percent of the left upper extremity.
The Board has reviewed the medical evidence submitted after August 5, 2014 and finds
there is no probative evidence warranting an increased schedule award. Dr. Alexander provided
reports that included results on examination, but did not describe a permanent impairment to the
arm or provide an impairment rating. Dr. Dodge also did not provide probative medical
evidence with respect to a permanent impairment. The July 7, 2015 report provided results on
examination, without describing a permanent impairment or providing an opinion on the issue.
The August 27, 2015 report does not discuss a permanent impairment.
OWCP referred the case to its medical adviser Dr. Harris and in an October 1, 2015
report he found no evidence of an increased permanent impairment. The Board finds no
probative medical evidence establishing an increased permanent impairment to the left upper
extremity. It is appellant’s burden to establish an increased schedule award, and he did not meet
his burden in this case.
On appeal, appellant argues that his impairment should be 21 percent, in accordance with
Dr. Tauber’s opinion. The Board had addressed Dr. Tauber’s October 9, 2012 report in a prior
appeal. To establish an increased schedule award, appellant must submit probative medical
evidence, as noted above. In the absence of such evidence, the Board finds OWCP properly
determined that appellant was not entitled to an additional schedule award in this case.
Appellant may at any time submit to OWCP a request for an increased schedule award
based on new medical evidence showing a progression of an employment-related permanent
impairment.
CONCLUSION
The Board finds appellant has not established more than 15 percent permanent
impairment of his left upper extremity.

12

P.L., Docket No. 15-1285 (issued February 5, 2016).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 23, 2015 is affirmed.
Issued: May 19, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
AVIATION DEPOT, Jacksonville, FL, Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1761
Issued: July 1, 2014

Case Submitted on the Record

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

JURISDICTION
On July 19, 2013 appellant, through his attorney, filed a timely appeal from a January 23,
2013 decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant forfeited his right
to compensation for the period July 20, 2007 to October 14, 2009; (2) whether it properly found
that an overpayment in compensation in the amount of $75,038.89 had been created because
appellant did not report work activity; and (3) whether OWCP properly found that appellant was
at fault in the creation of the overpayment and therefore it was not subject to waiver.
1
2

5 U.S.C. §§ 8101-8193.

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant on December 12,
2013 to confirm his continuing desire for an oral argument in Washington, DC. No written confirmation was
received within the time allotted; thus, the Board in its direction, has decided the appeal on the record.

On appeal, appellant contends that he did not knowingly fail to report income because his
traumatic brain injury rendered him incapable of having the capacity to correctly complete the
forms.
FACTUAL HISTORY
On November 16, 1990 appellant, then a 38-year-old aviation machinist, was thrown
from a bicycle at work when the front wheel locked. He stopped work on the date of injury and
did not return. Appellant was diagnosed with a superficial hematoma and multiple abrasions.
The claim was initially accepted for multiple contusions and abrasions and expanded to include
temporary aggravation of anxiety and headaches. Appellant was placed on the periodic
compensation rolls.
On April 8, 1991 Dr. Karen A. Steingarten, a neuropsychologist, noted administering a
neuropsychological test battery to appellant on March 22, 1991. She noted a past history of
significant psychiatric treatment as a young man when appellant had problems hearing voices
and a recurrence of these symptoms in the Navy, where he was medically discharged with
schizophrenia in remission. Overall, the testing gave a generally benign picture from an organic
perspective and, although the erratic quality of his attention/concentration was abnormal, this
was just as likely a product of a functional rather than an organic problem. Dr. Steingarten
concluded that the testing was indicative of an individual with average abilities premorbidly who
had not sustained any significant organic losses from the head injury.
Dr. Sarah Maulden, a Board-certified neurologist, saw appellant on November 21, 2003.
Appellant reported persistent headaches since the 1990 work injury, short- and long-term
memory loss, difficulty with cognitive tasks and depression. Dr. Maulden diagnosed chronic
daily headaches, traumatic brain injury and depression. She referred appellant to Dr. Thomas
Schenkenberg, Ph.D., a licensed clinical psychologist, for testing. On July 29, 2004
Dr. Schenkenberg assessed appellant’s memory function. Appellant reported being totally
disabled with intractable headaches since a closed-skull fracture on November 16, 1990 when he
fell at work and struck head. Appellant’s wife reported that he was sometimes paid for playing
the drums. Dr. Schenkenberg indicated that an extensive battery of cognitive tests showed many
inconsistencies. He specifically noted that appellant’s performance on the Wechsler Memory
Scale was extremely inconsistent and he knew of no organic condition that could produce the
combination of scores seen. Dr. Schenkenberg also advised that appellant performed flawlessly
on a memory-for-designs test and showed no evidence of word finding problems and that his fine
motor speed and grip strength were excellent bilaterally. He noted that it would have been
unlikely that the 1990 work injury produced residual, organically-based cognitive deficits but it
did appear that a number of psychological features appeared after the accident or were worsened
by it. Appellant began headache clinic treatment in September 2004 with a nurse practitioner
who continued to treat appellant at two-month intervals.
On an OWCP EN1032 form, signed by appellant on July 6, 2005, he indicated that as a
hobby he taught drums to school students and that he received no pay. On an EN1032 form he
signed on October 25, 2005, he indicated that he did not work and was not self-employed for the
previous 15 months.

2

On OWCP EN1032 forms, signed by appellant on October 6, 2006 and October 29, 2007,
he indicated that he did not work for an employing establishment, was not self-employed and
performed no volunteer work during the previous 15 months. Appellant also submitted an
EN1032 form, signed on October 20, 2008, indicating that he did not work for an employer, was
not self-employed and performed no volunteer work during the previous 15 months.
In December 12, 2008 correspondence, the employing establishment requested
appellant’s EN1032 forms, noting that a medical report indicated that he was a band teacher.
Appellant’s father subsequently advised OWCP that appellant taught drums part time and
sporadically. On January 14, 2009 OWCP informed the employing establishment that his parttime, sporadic work was not suitable for determining wage-earning capacity.
In a letter dated May 11, 2009, an individual informed OWCP that appellant had been
fraudulently claiming workers’ compensation. The letter advised that appellant ran a private,
nonreported drumming business while getting wage-loss compensation and boasted that he hid
his income and purchased his new home in his wife’s name. The Social Security Administration
reported that he had no earnings recorded from July 2007 through September 2008. On
August 24, 2009 the employing establishment requested a second-opinion evaluation. OWCP
responded on September 3, 2009 that the case was not in posture for a second opinion.
Appellant signed an EN1032 form on October 14, 2009, indicating that he did not work
for an employing establishment, was not self-employed and performed no volunteer work during
the previous 15 months.
On January 13, 2010 Dr. Predrag V. Gligorovic, a Board-certified psychiatrist, indicated
that appellant reported that he was being investigated by the Navy for disability fraud. Steven L.
Ater, Psy.D., a licensed psychologist and associate of Dr. Ehab Abdallah, saw appellant on a
weekly basis for behavioral therapy, beginning January 15, 2010.
On an EN1032 form, signed by appellant on November 25, 2010, he answered questions
regarding work, self-employment and volunteer work “yes and no.” In an attached 10-page
statement, he maintained that he did not fully understand or comprehend how the EN1032 forms
should be filled out due to his cognitive difficulties and impairments. Appellant indicated that
for the past 15 months he sporadically taught adults and school-age children how to play the
drums, including at a music store. He included a detailed explanation of creating a drum-line at
a high school, hosting a drum clinic and presenting a drum-line presentation and stated that he
performed occasionally as a drummer. Appellant provided an explanation of the fees he charged,
again indicating that because of his cognitive reasoning problems, he did not know how it should
be reported. He acquired a website for his drum instructor activities, which he paid for and
registered a business name with the state so that his drum instruction would comply with state
law. Appellant included a discussion of his business, including his conversations with his
accountant. He indicated that this was “painfully and cognitively an exhausting experience.”
Appellant attached scheduled of lessons given and performances he participated in from
June 2009 through December 2010.
In a May 4, 2011 report, Dr. Gligorovic noted appellant’s report of a head injury with
loss of consciousness, concussion and internal bleeds in 1990 and that he had since been

3

disabled. Due to the brain injury, appellant had a short attention span, an inability to
appropriately communicate and could not concentrate and was also under increased stress due to
a federal investigation. Dr. Gligorovic diagnosed traumatic brain injury induced anxiety disorder
and major depressive disorder. He advised that appellant could not work due to cognitive
problems, depression and anxiety.
In a May 27, 2011 neuropsychological evaluation report, Dr. Ater and Jennifer Stoll,
M.S., stated that appellant was evaluated by Ms. Stoll on July 20, August 4 and September 30,
2010 and March 16, 2011. It noted his work injury, his indication of current difficulties and
having more anxiety and severe daily migraines due to his injury. Appellant was oriented to
person, place and time but he did not orient well to testing procedures, indicating anxiety and
discomfort within the sessions. A test for possible signs of malingering was normal. The report
stated that the results indicated that appellant’s IQ was in the high average range for his age
group, that mental processing speed was average and that focused attention and immediate recall
of visually presented information was high average. A test to assess attention disorders and
neurological functioning reflected an individual who struggled to maintain attention or who
became inattentive over time. Performance on a deceptively complex task of cognitive
flexibility and on tests of verbal and design fluency were normal. Appellant showed average
performance on tests of working memory, recognition memory, inhibition, tasks requiring
abstract reasoning abilities and performance on making a copy of a complex figure. His verbal
comprehension, verbal reasoning and visual-spatial perception and reasoning skills were high
average. Appellant demonstrated an above average level of cognitive functioning and, while he
reported many difficulties, these were not corroborated by test scores. The report stated that he
underestimated his abilities and continued to struggle from psychological of changes in his
abilities and loss of function and recommended continued psychotherapy to address anxiety and
depression. It concluded that it would be beneficial to address the dissonance between
appellant’s perception of his abilities and his actual abilities.
On July 25, 2011 a special agent with the Department of Labor (DOL) Office of
Inspector General (OIG) informed OWCP that appellant had earnings in 2008 and 2009 as a
self-employed drum instructor and was also employed by a local school district where he
provided drum-line classes. In a July 26, 2011 memorandum, the agent informed OWCP that on
EN1032 forms signed by appellant on October 20, 2008 and October 14, 2009 he declared that
he had not worked for any employing establishment and was not self-employed during the
preceding 15-month period. However, appellant had actual earnings as a drum instructor during
these periods which he did not report. Therefore, the benefits he received during the 15 months
prior to each completed EN1032 forms would be subject to forfeiture.
Appellant submitted weekly behavioral therapy treatment notes from Dr. Ater dated
September 21, 2010 through January 25, 2012. On August 1, 2011 Dr. Ater noted that he went
over the neuropsychological evaluation in detail with appellant. On January 10, 2012 he
indicated that he and appellant had a long discussion about diagnostic issues related to his old
traumatic brain injury and he told appellant that his test results were not consistent with a
primary cognitive defect resulting from the injury but were more consistent with secondary
factors. Dr. Gligorovic submitted additional reports describing appellant’s condition, reiterating
his diagnoses and indicating that appellant was totally disabled due to cognitive impairment.

4

On an EN1032 form, signed by appellant on October 12, 2011, appellant answered
questions regarding work, self-employment and volunteer work “yes and no.” He again attached
an extensive explanation of his drum business.
Appellant hit his head on the hatchback of his car on March 21, 2012. He went to the
emergency room and was diagnosed by a physician’s assistant with minor head injury. A
computerized tomography (CT) scan of his head was negative.
The special agent provided a May 22, 2012 investigation report with supporting
documentation regarding appellant’s failure to report self-employment and income to OWCP
while in receipt of FECA wage-loss compensation. The investigation began in December 2009
when DOL was notified that appellant was operating a drumming business. The report detailed a
December 10, 2009 interview of him conducted by a DOL OIG agent and an investigator with
the Naval Criminal Investigative Service. The interview was conducted at appellant’s home and
he was accompanied by a nonattorney representative who did not participate in the interview.
Appellant’s father also participated in the interview by telephone. Appellant was shown copies
of five EN1032 forms and confirmed his signature on the forms. When questioned about his
drum lesson business, he indicated that the lessons were a sporadic hobby done on an
inconsistent basis, that he did not know how many students he had, that many did not pay him
and that payments were made to the Idaho Falls Drum Institute and not him. Appellant was
informed that the agents had information that he was paid $20.00 per half hour of instruction,
that he had 30 to 40 students and that he also worked for and was paid by the Idaho Falls High
School to instruct their drum line. Appellant’s father indicated that he and appellant had sent
three letters to DOL explaining that appellant taught drums sporadically as a hobby and the
agents informed him that appellant should have provided this information on the EN1032 forms
but instead indicated that he had zero income and no work activity of any kind. The interview
was then discontinued, at appellant’s request.
The report also included interview reports with two employees of Chesbro Music who
advised that for several years appellant had used space there to teach music for about four hours
weekly and that he also played in local bands. The band director and business director with
Idaho Falls High School were interviewed and stated that appellant was hired by the school
district as a private contractor for drum-line instructions in 2008 and 2009. The business director
noted that in 2007 appellant was entered into the accounting system by name, but in
February 2009 the name was changed to Idaho Falls Drum Institute, under which he received
payment. Several parents of appellant’s students were interviewed. Each indicated that
appellant taught his or her child. The superintendent of the Blackfoot Tribal High School was
interviewed and stated that appellant also attempted to obtain work there as a drum-line
instructor in October 2009 but the contract was not finalized due to funding issues.
Documentation regarding payments by the Idaho Falls School District to appellant and the Idaho
Falls Drum Institute was also included, including payments for drums and copies of five OWCP
EN1032 forms dating from October 2004 to October 2009.
In a June 22, 2012 decision, OWCP found that appellant forfeited his right to
compensation from June 20, 2007 through October 14, 2009, because he knowingly failed to
report employment activity and earnings on OWCP EN1032 forms. On June 22, 2012 it also
made a preliminary finding that he received a $75,038.89 overpayment of compensation for the

5

period July 20, 2007 through October 14, 2009, the period of the forfeiture. Appellant was found
at fault in creating the overpayment because he failed to provide information which he knew or
should have known was material, based on his failure to report earnings on OWCP EN1032
forms. An overpayment worksheet contained in the record indicates that he received
compensation of $75,038.89 for the period July 20, 2007 to October 14, 2009.
Appellant’s attorney requested a hearing that was held on October 3, 2012. Appellant
was not present at the hearing. Counsel argued that OWCP erred in not fully developing
appellant’s medical condition prior to forfeiture. He maintained that appellant had profound
mental and physical deficits and did not understand the complexity of completing the EN1032
forms because he lacked the capacity to complete the forms and followed the advice of his
father, who told him that his employment had been reported to OWCP.
On an EN1032 form, signed by appellant on November 1, 2012, he answered “yes” that
he was employed. He again attached an explanation of his drum business. On November 8,
2012 OWCP informed appellant that, before further payments for wage loss could be made, it
had to clarify his earnings and asked for specific information regarding his business and clients.3
Kimberly Davis, a paralegal with the employer’s Office of General Counsel, provided
comments on November 7, 2012. She maintained that, contrary to the attorney’s assertions at the
hearing, the evidence showed that appellant was a highly functioning individual who was
capable of employment and took steps to hide reportable income and activities, not only for the
period of the overpayment in question but back to 2003 and continuing. Ms. Davis provided
information and documentation regarding his website and businesses, including drum instruction
and playing in bands and indicated that he continued to underreport earnings. Certificates
regarding the businesses of appellant and his wife, a list of expenses from a school district from
November 2011 to January 2012 and documentation obtained from websites regarding appellant
were attached.
On December 3, 2012 OWCP again informed appellant that, before further payments for
wage loss could be made, he had to clarify his earnings.
Appellant’s attorney submitted a brief to OWCP’s Branch of Hearings and Review on
December 7, 2012. He asserted that the forfeiture and subsequent overpayment decisions were
in error because OWCP was aware of appellant’s earnings as early as 2005 and because OWCP
informed him that it considered such activity inconsequential, he did not willfully fail to report
earnings. Counsel argued that appellant’s traumatic brain injury led to diminished cognitive
functioning and precluded him from knowing the complexities of completing EN1032 forms. He
attached September 12 and October 24, 2012 reports from Dr. Gligorovic indicating that the
1990 work injury caused post-traumatic concussive syndrome with headaches, memory loss and
frontotemporal dementia. Appellant was totally disabled due to the work-related conditions.
Dr. Gligorovic also indicated that, due to appellant’s cognitive impairment and emotional
difficulties, he was not able to properly fill out the EN1032 forms. He recommended additional
neuropsychological testing and concluded that appellant could unintentionally, even with his best
3

In correspondence dated November 10, 2012, appellant’s attorney raised arguments concerning OWCP’s
posture regarding monetary compensation and submitted supportive documentation.

6

efforts, make errors of omission on the EN1032 forms. On December 6, 2012 Dr. Gligorovic
indicated that appellant was depressed because his wage-loss compensation was terminated. He
diagnosed traumatic brain injury-induced mood disorder; history of traumatic brain injury;
impulse control disorder, personality disorder; seizure disorder, narcolepsy; erectile dysfunction;
and marital, legal and financial problems. Dr. Gligorovic indicated that he was leaving the area
and recommended a new psychiatrist.
In a January 23, 2013 decision, an OWCP hearing representative found that appellant
forfeited compensation for the periods covered by OWCP EN1032 forms that he signed on
October 20, 2008 and October 14, 2009, as he knowingly failed to report earnings. She noted
that, as appellant reported on the EN1032 form completed on July 6, 2005, it was clear that he
understood what should be entered and the psychological testing done by Dr. Ater showed that,
while he had slight cognitive difficulties in some areas, he was a high functioning and intelligent
individual. The hearing representative finalized the preliminary overpayment determination,
finding appellant at fault because he failed to provide information which he knew or should have
known to be material. As appellant submitted no financial information, the full amount of the
overpayment of compensation, $75,038.39, was found due and payable.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA provides that the Secretary of Labor may require an partially
disabled employee to report his or her earnings from employment or self-employment, by
affidavit or otherwise, in the manner and at the times the Secretary specifies. It states that an
employee who:
“(1) fails to make an affidavit or report when required; or
“(2) knowingly omits or understates any part of his or her earnings forfeits his or
her right to compensation with respect to any period for which the affidavit or
report was required.”4
Section 10.5(g) of OWCP’s regulations defines earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”5
4

5 U.S.C. § 8106(b); see F.C., 59 ECAB 666 (2007).

5

20 C.F.R. § 10.5(g).

7

To determine whether a compensationer should forfeit the compensation received for the
periods covered by completed OWCP EN1032 forms, the evidence must establish that he or she
knowingly omitted or understated his or her employment and earnings.6 As forfeiture is a
penalty, it is not enough merely to establish that there were underreported earnings from
employment. The inquiry is whether appellant knowingly omitted or understated his earnings
from employment for the periods covered by the EN1032 forms. The term “knowingly” as
defined in OWCP’s implementing regulation and Board precedent means “with knowledge;
consciously; intelligently; willfully; intentionally.”7 The language on OWCP EN1032 forms is
clear and unambiguous in requiring a claimant to report earnings for the previous 15 months
from any employer, self-employment or a business enterprise in which he or she worked. The
forms further emphasize that severe penalties may be applied for failure to report all work
activities thoroughly and completely.8
ANALYSIS -- ISSUE 1
OWCP determined that appellant forfeited his entitlement to compensation for the period
July 20, 2007 to October 14, 2009. Appellant signed an OWCP EN1032 form on October 20,
2008 covering the period July 20, 2007 to October 20, 2008. He signed a second EN1032 form
on October 14, 2009 covering the period July 14, 2008 to October 14, 2009. Appellant certified
on the EN1032 forms that he had no employment, self-employment or involvement in a business
and did not perform any volunteer work. The July 26, 2011 OIG report and accompanying
documentation, however, establishes that he had earnings in 2008 and 2009 as a self-employed
drum instructor and employment with a local school district where he provided drum-line
classes. In a July 26, 2011 memorandum, the DOL OIG special agent informed OWCP that on
EN1032 forms signed by appellant on October 20, 2008 and October 14, 2009 he declared that
he had not worked for any employing establishment and was not self-employed during the
preceding 15-month period. As appellant had actual earnings, however, as a drum instructor
during these periods which he did not report, the benefits he received during the 15 months
pertaining to each completed EN1032 form is subject to forfeiture.
Appellant can be subject to the forfeiture provision of section 8106(b) only if he
“knowingly” failed to report earnings or employment. OWCP has the burden of proof to
establish that a claimant did, either with knowledge, consciously, willfully or intentionally, failed
to report earnings from employment.9
The fact that appellant’s father reported that appellant taught drums sporadically and that
he characterized teaching drums as a hobby, does not remove appellant’s responsibility to report
self-employment, employment or volunteer services on EN1032 forms.10 As noted, the language
6

Robert R. Holmes, 49 ECAB 161 (1997); id. at § 10.5(n).

7

Christine C. Burgess, 43 ECAB 449 (1992).

8

See J.J., 59 ECAB 542 (2008).

9

P.M., Docket No. 07-2169 (issued March 3, 2009).

10

J.S., 58 ECAB 515 (2007).

8

on OWCP EN1032 forms is clear and unambiguous in requiring a claimant to report earnings for
the previous 15 months from any employer, self-employment or a business enterprise in which
he or she worked. The forms further emphasize that severe penalties may be applied for failure
to report all work activities thoroughly and completely.11
Appellant contends on appeal that his cognitive difficulties rendered him incapable of
completing the forms. The 1991 neurological testing by Dr. Steingarten indicated that he had
average abilities and had not sustained any significant organic losses from the head injury.
Appellant also had neurophysiological testing in 2004. At that time, Dr. Schenkenberg stated
that an extensive battery of cognitive tests showed many inconsistencies. He specifically noted
that appellant’s performance on the Wechsler Memory Scale was extremely inconsistent and he
knew of no organic condition that could produce the combination of scores seen.
Dr. Schenkenberg further indicated that appellant performed flawlessly on a memory-for-designs
test, he showed no evidence of word finding problems and that his fine motor speed was
excellent. He opined that it would have been unlikely that the 1990 injury produced residual,
organically-based cognitive deficits, but it did appear that a number of psychological features
appeared after the accident or were worsened by it.
These findings are consistent with Dr. Ater’s testing in 2012, which noted that appellant
was oriented to person, place and time during the testing but had anxiety and discomfort within
the sessions. He advised that appellant’s IQ was in the high average range for his age group, that
mental processing speed was average and that focused attention and immediate recall of visually
presented information was high average. Performance on a deceptively complex task of
cognitive flexibility and on tests of verbal and design fluency were normal. Appellant had
average performance on tests of working memory, recognition memory, inhibition, abstract
reasoning abilities and making a copy of a complex figure. His verbal comprehension, verbal
reasoning and visual-spatial perception and reasoning skills were in the high average range.
Dr. Ater advised that appellant demonstrated an above average level of cognitive functioning and
that, while he reported many difficulties, these were not corroborated by test scores but instead
he underestimated his abilities and continued to struggle from psychological changes in his
abilities and loss of function.
While several treating physicians have indicated that appellant’s traumatic brain injury
led to cognitive deficits, the physicians did not adequately explain why he was so impaired as to
be unable to complete EN1032 forms. Appellant did not submit sufficient evidence to establish
that he was mentally incompetent to complete the EN1032 forms submitted to OWCP.12
Furthermore, appellant proved himself capable of self-employment and employment by a school
district for monetary gain. This is supported by the many interviews conducted by the OIG
agents and in a lengthy response attached to an EN1032 form submitted by appellant on
November 25, 2010, in which he went to great lengths answering questions regarding his
business enterprises, including describing discussions with his accountant in detail.

11

See J.J., supra note 8.

12

See J.J., Docket No 13-1635 (issued February 18, 2014); P.L. (G.L.), Docket No. 09-1488 (issued
March 2, 2010).

9

Consequently, there is insufficient medical evidence showing that appellant was not capable of
accurately completing OWCP EN1032 forms at issue
In this case, appellant completed OWCP EN1032 forms on October 20, 2008 and
October 14, 2009, which advised him that he must report all employment and all earnings from
employment, self-employment, involvement in a business enterprise and volunteer work. The
forms clearly stated that he could be subject to criminal prosecution for false or evasive answers
or omissions. The factual circumstances of record, including appellant’s signing of a strongly
worded certification clause on the EN1032 forms, provide persuasive evidence that he
“knowingly” understated employment information regarding his involvement in selfemployment teaching drums, employment by a school district and perhaps receiving
remuneration playing in bands.13 The Board therefore finds that OWCP properly found that he
forfeited his compensation for the period July 20, 2007 to October 14, 2009.
LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of OWCP’s implementing regulation provides as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, OWCP shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. § 8129
and other relevant statues.”14
ANALYSIS -- ISSUE 2
OWCP’s regulations provide that it may declare an overpayment of compensation for the
period of a given forfeiture of compensation. If a claimant has any employment, including selfemployment or involvement in a business enterprise, during a period covered by an EN1032
form which he or she fails to report, the claimant is not entitled to any compensation for any
portion of the period covered by the report, even though he or she may not have had earnings
during a portion of that period.15 The record supports that OWCP paid him compensation in the
amount of $75,038.89 for the period July 20, 2007 to October 14, 2009. As OWCP properly
found that appellant forfeited his entitlement to compensation during this period because he
failed to report earnings from employment on an OWCP EN1032 form, there exists an
overpayment of compensation in the amount of $75,038.89.

13

See Harold F. Franklin, 57 ECAB 387 (2006).

14

20 C.F.R. § 10.529.

15

Louis P. McKenna, Jr., 46 ECAB 428 (1994).

10

LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”16
Section 10.433(a) of OWCP’s regulations provides that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment-(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;
(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”17
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines 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.18
ANALYSIS -- ISSUE 3
OWCP properly determined that appellant was at fault in the creation of the
overpayment. Appellant failed to provide information which he knew or should have known to
be material on OWCP EN1032 forms covering the period July 20, 2007 to October 14, 2009.
The record establishes that he had unreported self-employment during the period and knowingly
failed to furnish this material information to OWCP. Appellant signed a certification clause on
the EN1032 forms, which advised him in explicit language that he might be subject to civil,
administrative or criminal penalties if he knowingly made a false statement or misrepresentation
or concealed a fact to obtain compensation. By signing the form, he is deemed to have
acknowledged his duty to fill out the form properly, including the duty to report any
16

5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

17

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

18

Id. at § 10.433(b); Duane C. Rawlings, 55 ECAB 366 (2004).

11

employment, self-employment or involvement in a business enterprise. Appellant failed to
furnish information which he knew or should have known to be material to OWCP. As he is not
without fault in creating the overpayment, it is not subject to waiver.19
CONCLUSION
The Board finds that appellant forfeited his entitlement to compensation for the period
July 20, 2007 to October 14, 2009. The Board further finds that he was at fault in the creation of
an overpayment of compensation in the amount of $75,038.89 and was therefore not entitled to
waiver.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

19

Harold F. Franklin, supra note 13. The Board notes that its jurisdiction is limited to reviewing those cases
where OWCP seeks recovery from continuing compensation benefits under FECA. Where, as here, a claimant is no
longer receiving wage-loss compensation benefits, the Board does not have jurisdiction with respect to OWCP’s
recovery of the overpayment under the Debt Collection Act. Albert Pineiro, 51 ECAB 310 (2000).

12