United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Fort Dix, NJ, Employer
__________________________________________

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Appearances:
Jason S Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-458
Issued: May 2, 2013

Case Submitted on the Record

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

JURISDICTION
On December 31, 2012 appellant, through her attorney, filed a timely appeal from a
July 11, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits
effective November 30, 2011.
FACTUAL HISTORY
On March 18, 2011 appellant, then a 37-year-old secretary, filed a traumatic injury claim
alleging that she injured her left wrist, hand and arm on March 17, 2011 during the employing
establishment’s annual self-defense and firearms training. OWCP accepted the claim for a left
1

5 U.S.C. §§ 8101-8193.

wrist sprain and paid appropriate benefits.2 Appellant returned to full-time limited duty on
May 23, 2011.
In a June 15, 2011 report, Dr. Scott F. Garberman, a general surgeon, noted the history of
injury and appellant’s complaints of ulnar wrist pain with clicking. He stated that a magnetic
resonance imaging (MRI) scan at the end of March revealed a small triangular fibrocartilage
complex (TFCC) tear and cyst. On examination, Dr. Garberman found modest ulnar wrist pain,
but no specific clicking. Range of motion was mildly limited with no tenderness or subluxation
of the extensor carpi ulnaris. Grip strength was not tested. An impression of improving left
TFCC tear was provided. Dr. Garberman recommended continued conservative care and limited
duty until appellant returned to his office in approximately one month.
In reports dated June 24, July 18 and August 8, 2011, Dr. Garberman reported that the
left TFCC tear was improving. In the August 8, 2011 report, he found trace edema, but no
element of crepitus, clicking or locking with full range of motion of the wrist and true forearm
pronation and supination to the extreme. Grip strength was improved and there was no tendon
subluxation.
Dr. Garberman concluded that appellant had some residual deficit and
recommended an additional three weeks of therapy, after which he expected to release her from
care. He noted that she continued care through Laura E. Ross-Adams, D.O., an orthopedic
surgeon, for proximal arm difficulties.
In reports of July 11 and August 16, 2011, Dr. Ross-Adams, noted the history of injury
and diagnosed wrist sprain/strain, ulnar neuropathy, which she opined was causally related to the
employment injury based on appellant’s account of events. She opined that appellant could work
with restrictions.
On August 23, 2011 the employing establishment requested a second opinion
examination, noting that appellant had undergone a long period of physical therapy without
apparent improvement. It was noted that she had not been returned to her full duties and her
secretarial job had very limited physical demands.
In an August 29, 2011 report, Dr. Garberman reported normal physical findings with
regard to appellant’s wrist. He released her from his care, but stated that limited-duty restrictions
would continue.
In a September 23, 2011 report, Dr. Stanley Askin, a Board-certified orthopedic surgeon
and second opinion physician, noted the history of appellant’s February 23, 2011 injury as well
as her March 17, 2011 injury, and the accepted diagnosis of left wrist sprain. He indicated that
he reviewed her position description. Dr. Askin reported an essentially normal physical
evaluation of appellant’s left wrist and opined that there was no basis for disability from her
doing her secretarial job or the need for ongoing medical treatment. Regarding appellant’s
objective findings, he noted that she had a slight pop at the extensor carpi ulnaris, but such did
not appear to correspond with the area of her complaint. Dr. Askin noted that his disagreement
that appellant’s left wrist MRI scan demonstrated a TFCC tear, indicating that it was not
2

Under case File No. xxxxxx116, appellant filed a claim for injury to the left wrist on February 23, 2011. The
claim was administratively closed and she returned to full duty.

2

necessarily secondary to the reported occurrence, was not explanatory of her complaints and did
not appear to require any specific intervention. He stated that the sorts of imperfections that
were defined on her MRI scan report would be likely present if her nonsymptomatic right upper
extremity were similarly studied. Dr. Askin explained that a TFCC tear was a normal finding for
a person of appellant’s age and that such tears were present in approximately 50 percent of the
persons her age with no actual injury event or need for treatment. He explained that while a
triangular fibrocartilage complex could be clinically significant if its function as the prime
stabilizer of the distal radial ulnar joint was lost, but she did not present with lost stability of the
distal radial ulnar joint. Dr. Askin opined that appellant’s subjective complaints were out of
proportion with her objective findings. If in fact appellant had joint imperfection she should
have evidence of inflammatory reaction, or synovitis, but she did not. Dr. Askin also noted that
the cyst in her left wrist would not have been caused by a work injury and was not located in the
area where she reported discomfort. He concluded that appellant had no objective findings of
disability and that she did not require further medical care.
On October 13, 2011 OWCP issued a notice of proposed termination of compensation to
appellant. It found that the weight of the medical evidence, as represented by Dr. Askin’s second
opinion report, established that she no longer had any residuals as a result of the work injury.
Following the notice of proposed termination, OWCP received a statement from
appellant disagreeing with OWCP’s proposal to terminate her compensation benefits. Appellant
indicated that Dr. Garberman provided minimal evaluation of her wrist. She indicated that she
was uncomfortable with Dr. Askin as he did not appear to have a real medical office. Appellant
indicated that her new physician, Dr. David Fuller, Board-certified in hand surgery, whom she
saw for a second opinion, advised her that she needed more time to heal.
In September 30, 2011 CA-20 and OWCP-5c forms and in a November 7, 2011 note,
Dr. Ross-Adams opined that the March 17, 2011 work injury was the direct cause of appellant’s
wrist sprain. She further opined that appellant was able to work light duty with restrictions.
In a November 7, 2011 note, Dr. Fuller noted that appellant’s physical examination was
normal and he could not appreciate any popping on the dorsum of the left wrist. An impression
of left wrist pain with TFCC tear by MRI scan and tendinosis was provided. Dr. Fuller
recommended that appellant work through this in a nonsurgical fashion and that he would see her
on an as needed basis.
A November 3, 2011 x-ray of the left wrist was reported as being normal.
By decision dated November 30, 2011, OWCP terminated appellant’s benefits, effective
November 30, 2011, finding that Dr. Askin’s opinion represented the weight of the medical
evidence.
On December 19, 2011 appellant requested a review of the written record before an
OWCP representative. In a December 19, 2011 statement, she indicated that Dr. Askin and
Dr. Ross-Adams had indicated that she needed a functional capacity evaluation.
Dr. Ross-Adams continued to submit OWCP-5c forms and CA-20 forms indicating that
appellant could only work light duty. In a December 6, 2011 report, she noted the history of
3

injury and appellant’s medical course. Dr. Ross-Adams indicated that, upon examination of
appellant’s left wrist on November 7, 2011, she found a continued limited range of motion as
well as tenderness over the TFCC region. She stated that she recommended that appellant refrain
from any activities that could aggravate the wrist and also recommended a continued light-duty
status, as appellant had continued pain and swelling in her wrist.
In a January 3, 2012 report, Dr. Ross-Adams noted that appellant was still having a lot of
weakness and pain. Appellant indicated that she saw a hand surgeon, who recommended the
possibility of surgery. Physical examination revealed weakness and limited mobility of the left
wrist. Appellant was tender to palpation on the volar surface in the mid carpus, tender over the
TFCC of the left wrist and had limited mobility. Watson maneuver was negative. An
impression of TFCC tear of the left wrist extensor tendinitis and volar ganglion cyst was
provided. Dr. Ross-Adams stated that appellant’s prognosis was poor for her to return to any job
that required skilled use of her left hand and wrist, including use of a firearm. She recommended
that appellant undergo a therapeutic evaluation to determine what type of position she was
capable of doing with regards to her left wrist and hand.
By decision dated July 11, 2012, OWCP’s hearing representative affirmed the
termination of appellant’s compensation benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her employment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.3 The right to medical
benefits for an accepted condition is not limited to the period of entitlement to compensation for
disability. To terminate authorization for medical treatment, OWCP must establish that appellant
no longer has residuals of an employment-related condition, which require further medical
treatment.4
OWCP’s burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5 In addition to a proper
factual and medical background, a rationalized medical opinion is one of reasonable medical
certainty and supported by medical rationale explaining the opinion.6

3

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

4

Furman G. Peake, 41 ECAB 361 (1990).

5

J.M., 58 ECAB 478 (2007).

6

Furman G. Peake, 41 ECAB 361 (1990).

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ANALYSIS
OWCP accepted that on March 17, 2011 appellant sustained a left wrist strain and paid
appropriate benefits. It terminated her benefits effective November 30, 2011 finding that she no
longer had any residuals or disability due to her work injury.
Appellant’s treating physician, Dr. Garberman, initially reported that appellant’s
March 2011 MRI scan revealed TFCC tear and a cyst. However, he did not provide a
rationalized opinion as to how these conditions were causally related to her accepted March 17,
2011 injury. By August 29, 2011, Dr. Garberman reported essentially normal physical findings
with regards to appellant’s wrist. He released her from his care, but stated that limited-duty
restrictions would continue, Dr. Garberman offered no explanation as to why appellant should
continue with limited-duty restrictions, given her examination findings.
Appellant was thereafter examined by Dr. Askin, a second opinion physician. In
terminating her compensation benefits, weight was accorded to his second opinion report, which
found that she had no further employment-related residuals or disability. The Board finds that
OWCP properly terminated appellant’s compensation benefits.
The weight of the medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.7 In his September 23, 2011 report, Dr. Askin noted
appellant’s history of two employment injuries to her left wrist, occurring on February 23 and
March 17, 2011, and reviewed her current complaints. He thereafter reported findings from a
thorough physical examination, concluding that she had an essentially normal left wrist, with no
swelling or edema and full range of motion. Dr. Askin related that appellant did have a light pop
at the extensor carpi ulnaris, but he also explained that this finding did not correspond to her
complaints. He opined that she had no current findings or symptoms that could be explained or
caused by the injury. Dr. Askin explained the MRI scan finding of a TFCC tear was a normal
finding for persons of appellant’s age and that such tears were present in 50 percent of persons
her age with no actual injury event or need for treatment. He also explained that her cyst in the
left wrist would not have been caused by the work injury and was not located in the area where
she reported discomfort. Dr. Askin concluded that appellant had no disability and did not require
further medical care.
The Board finds that Dr. Askin provided a comprehensive, well-rationalized opinion in
which he clearly advised that any residuals of appellant’s accepted condition had resolved and
that she could return to work without restrictions and no further medical treatment was
necessary. Dr. Askin further explained how the findings on MRI scan of TFCC tear and cyst
were not caused by appellant’s work injuries and were not disabling. His opinion therefore
constitutes the weight of the medical evidence. The Board notes, that contrary to appellant’s
assertion, Dr. Askin did not indicated that a functional capacity evaluation was necessary.
Following Dr. Askin’s evaluation, appellant submitted additional medical evidence in
support of her claim. In his November 7, 2011 report, Dr. Fuller provided an impression of left
7

C.B., Docket No. 08-1583 (issued December 9, 2008).

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wrist pain with TFFC tear by MRI scan and tendinosis and recommended nonsurgical care.
However, he did not provide any rationale to explain whether and how the findings on MRI scan
would be disabling or caused by appellant’s work injuries. As such Dr. Fuller’s opinion is of
limited probative value.
Dr. Ross-Adams, in her July 11, 2011 report, noted a diagnosis of left wrist sprain and
ulnar neuropathy, which she stated were related to appellant’s employment injury, according to
appellant’s recitation of events. She did not explain her diagnois of ulnar neuropathy, based
upon objective medical findings. In her November 7, 2011 report, Dr. Ross-Adams opined that
the March 17, 2011 injury was the direct cause of appellant’s wrist sprain. However, she offered
no opinion or findings related to any ongoing disability or medical treatment with regards to the
accepted sprain. In her subsequent reports of December 6, 2011 and January 3, 2012,
Dr. Ross-Adams focused on the nonaccepted condition of TFCC tear and volar ganglion cyst.
She found continued limited range of motion and tenderness over the TFCC region and
recommended a continued light-duty status due to appellant’s continued pain and swelling in her
wrist. However, Dr. Ross-Adams failed to offer an opinion or provide any medical rationale
how the nonaccepted TFCC condition and volar ganglion cyst would be due to the accepted
work injury.8 Furthermore, her examination findings are contradicted by the findings of both
Dr. Askin and Dr. Fuller, who both reported a full range of motion of the wrist and described a
normal physical examination of the wrist.
The Board therefore concludes that Dr. Askin’s opinion that appellant had recovered
from the employment injury represents the weight of the medical evidence. The additional
medical evidence submitted is insufficient to create a conflict in opinion regarding whether she
had residuals or disability related to the accepted injury. OWCP therefore properly terminated
her compensation benefits effective November 30, 2011.
While counsel argues that the decision is contrary to fact and law, the medical evidence
fails to support any remaining residuals or disability due to the accepted condition. 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 OWCP properly terminated appellant’s compensation benefits
effective November 30, 2011.

8

See Jaja K. Asaramo, 55 ECAB 200 (2004) (for conditions not accepted by OWCP, the claimant bears the
burden of proof to establish that the condition is causally related to the employment injury through the submission of
rationalized medical evidence); T.M., Docket No. 08-975 (issued February 6, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the July 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS
VETERANS ADMINISTRATION MEDICAL
CENTER, Miami, FL, Employer
__________________________________________

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

Docket No. 09-2159
Issued: May 20, 2010

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 August 21, 2009 appellant filed a timely appeal of a July 9, 2009 Office of Workers’
Compensation Programs’ decision denying reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board does not have merit jurisdiction of her claim.1
ISSUE
The issue is whether the Office properly declined to reopen appellant’s claim for
consideration of the merits in accordance with 5 U.S.C. § 8128.

1

The Board does not have jurisdiction to review the merits of appellant’s claim as the last merit decision from the
Office was issued on March 14, 2008. The Board previously reviewed the March 14, 2008 decision of the Office in
its June 1, 2009 decision in Docket No. 08-1891 (issued June 1, 2009). This decision became final within 30 days or
by July 1, 2009. 20 C.F.R. § 501.7.

FACTUAL HISTORY
This case has previously been before the Board. Appellant’s September 19, 2005
occupational disease claim was accepted for aggravation of cervical spinal stenosis and
displacement of cervical intervertebral discs at C3-7. The Office denied appellant’s claim for a
schedule award on March 14, 2008 on the grounds that she had not established any impairment
to a scheduled member. Appellant submitted an untimely request for an oral hearing which was
denied by the Branch of Hearings and Review on May 29, 2008. In a June 1, 2009 decision, the
Board affirmed both decisions of the Office, finding that appellant did not have any permanent
impairment to a scheduled member entitling her to a schedule award.2 The facts of the case, as
set forth in the prior decision, are incorporated herein by reference.
Appellant requested reconsideration before the Office on June 25, 2009. She requested
that it authorize an additional impartial examination contending that Dr. Crowley was prejudiced
and incorrect. Appellant alleged that an impairment rating for her cervical headaches should
have been included and that she would submit additional medical evidence.
Appellant submitted a note from the Veterans Administration printed on June 3, 2009
diagnosing chronic intractable pain syndrome, cervical stenosis, myofascial pain syndrome or
fibromyalgia, carpal tunnel syndrome and shoulder impingement syndrome.
By decision dated July 9, 2009, the Office denied reopening appellant’s claim for further
consideration of the merits. It found that the evidence submitted in support of her request for
reconsideration was repetitive and cumulative and insufficient to warrant review of the prior
decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides in section 8128(a) that the Office
may review an award for or against payment of compensation at any time on its own motion or
on application by the claimant.3 Section 10.606(b) of the Code of Federal Regulations provides
that a claimant may obtain review of the merits of the claim by submitting in writing an
application for reconsideration which sets forth arguments or evidence and shows that the Office
erroneously applied or interpreted a specific point of law; or advances a relevant legal argument
not previously considered by the Office; or includes relevant and pertinent new evidence not
previously considered by the Office.4 Section 10.608 of the Office’s regulations provide that
when a request for reconsideration is timely, but does meet at least one of these three
requirements, the Office will deny the application for review without reopening the case for a
review on the merits.5
2

On appeal to the Board appellant submitted new evidence. As the Office did not consider this evidence in
reaching a final decision, the Board may not consider it for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
3

5 U.S.C. §§ 8101-8193, 8128(a).

4

20 C.F.R. § 10.606.

5

Id. at § 10.608.

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ANALYSIS
Appellant requested reconsideration of the merits of her claim on June 25, 2009. In
support of her request, she submitted a note from the Veterans Administration printed on
June 3, 2009. It diagnosed chronic pain syndrome, cervical stenosis and myofascial pain
syndrome or fibromyalgia. The note did not include any information regarding appellant’s claim
of permanent impairment and therefore is not relevant to the issue on which her claim was
denied. The submission of evidence that does not address the particular issue involved does not
constitute a basis for reopening a claim.6
Appellant also disagreed with Dr. Crowley’s selection as the impartial medical examiner
and stated her opinion that he was prejudiced and incorrect. Appellant did not submit any factual
or medical evidence to support her assertions regarding Dr. Crowley. While the reopening of a
case may be predicated solely on a legal premise not previously considered, such reopening is
not required where the legal contention does not have a reasonable color of validity.7 There is no
evidence supporting appellant’s claims of bias by the physician or error in his reported findings.
Appellant’s unsupported allegation does not have a reasonable color of validity and is not
sufficient to require the Office to reopen her claim for consideration of the merits.
CONCLUSION
The Board finds that the Office properly declined to reopen appellant’s claim for further
reconsideration.

6

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

M.E., 58 ECAB 694 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the July 9, 2009 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: May 20, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF THE AIR FORCE,
AIR EDUCATION & TRAINING COMMAND,
LACKLAND AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 18-1460
Issued: March 23, 2021

Case Submitted on the Record

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

JURISDICTION
On July 23, 2018 appellant filed a timely appeal from a January 31, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $7,094.17 for the period January 20, 2012 through
April 29, 2017 because postretirement life insurance premiums were not properly deducted, for
with appellant was without fault; (2) whether it properly denied appellant’s request for waiver of
recovery of the overpayment; and (3) whether OWCP properly required recovery of the

1

5 U.S.C. § 8101 et seq.

overpayment by deducting $300.00 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
On October 14, 2010 appellant, then a 58-year-old boiler plant equipment mechanic, filed
a traumatic injury claim (Form CA-1) alleging that on September 28, 2010 he injured his back and
lost feeling from the waist down after moving tanks while in the performance of duty. OWCP
accepted appellant’s claim for displacement of lumbar intervertebral disc without myelopathy, and
thoracic or lumbosacral neuritis/radiculitis. Appellant stopped work on January 19, 2011, and
OWCP paid him wage-loss compensation benefits on the supplemental and periodic rolls
commencing January 19, 2011.
In a payment memorandum dated October 4, 2011, OWCP indicated that appellant elected
basic life insurance (BLI) and optional life insurance (OLI) under code N5. A Notification of
Personnel Action form (Standard Form 50-B) indicates that appellant was removed from the
employing establishment effective July 20, 2012 and also notes that he had elected BLI and OLI
in the form of Option A, Option B (2x), and Option C (5x) under code N5. In a Continuation of
Life Insurance Coverage form, signed on December 28, 2012, appellant elected to continue BLI
coverage in “retirement/compensation” with no reduction.
In a September 22, 2016 letter, OWCP informed appellant that he had the option of
continuing his Option B and Option C life insurance beyond age 65 as a “Post-65 Reduction
Election.” It requested that appellant complete an attached form and submit it to the Office of
Personnel Management (OPM) if he was interested in continuing his OLI coverage.
On December 2, 2016 OWCP received a November 6, 2016 letter in which OPM advised
that, as a compensationer, appellant was eligible to continue Federal Employees’ Group Life
Insurance (FEGLI) coverage for BLI with no reduction and OLI in the form of Option A, Option
B (2x – no reduction), and Option C (5x -- no reduction). It further advised that appellant’s
postretirement election was “no reduction” and requested that OWCP make deductions (under
code N5) for the delineated BLI and OLI effective the “commencing date” of January 20, 2012.
In its November 17, 2016 letter, OPM also requested that, effective January 1, 2017, OWCP freeze
appellant’s OLI coverage in the form of Option B (2x -- no reduction) and Option C (5x -- no
reduction) at its value as of age 65. On December 2, 2016 OWCP also received election forms,
signed on November 8, 2016, in which appellant requested such a freeze of these types of OLI.
On May 17, 2017 OWCP payment records showed the nondeduction of postretirement life
insurance premiums from January 20, 2012 through April 29, 2017 and worksheets explaining the
calculation of the overpayment amount were added to the case record. On May 23, 2017 an OWCP
payment record indicating that postretirement life insurance premiums were being deducted from
compensation commencing April 30, 2017 was also added to the case record.
In a May 26, 2017 letter, OWCP advised appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $7,094.17 for the period January 20,
2012 through April 29, 2017 because postretirement life insurance premiums were not properly
deducted from his compensation benefits for this period. It also made a preliminary determination
that appellant was without fault in the creation of the overpayment. OWCP advised appellant of
2

his right to request a telephone conference with the district office, a final decision based on the
written evidence, or a prerecoupment hearing before a representative of OWCP’s Branch of
Hearings and Review, and requested that he complete and submit an overpayment recovery
questionnaire form (OWCP Form-20) regarding his finances. OWCP afforded him 30 days to
respond.
On June 12, 2017 appellant requested a prerecoupment hearing and, on June 20, 2017,
OWCP received an OWCP Form-20 which he had completed on June 16, 2017. During the
prerecoupment hearing held on November 16, 2017, he testified that he had not been aware that
postretirement life insurance premiums had to be deducted commencing January 20, 2012.
Appellant provided additional information about his monthly income and expenses. In a
November 20, 2017 letter, he further discussed his financial circumstances.
By decision dated January 31, 2018, OWCP’s hearing representative finalized the
preliminary determination that appellant had received an overpayment of compensation in the
amount of $7,094.17 for the period January 20, 2012 through April 29, 2017 because
postretirement life insurance premiums were not properly deducted from his compensation
benefits for this period. She further found appellant without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment because his monthly income
exceeded his monthly expenses by more than $50.00. The hearing representative required
recovery of the overpayment by deducting $300.00 from appellant’s continuing compensation
payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI Program, most civilian employees of the federal government are eligible
to participate in BLI and one or more forms of OLI.2 The coverage for BLI is effective unless
waived,3 and premiums for BLI coverage are withheld from the employee’s pay.4 Upon retirement
or upon separation from the employing establishment or being placed on the FECA periodic
compensation rolls, an employee may choose to continue BLI and OLI coverage, in which case
the schedule of deductions made will be used to withhold premiums from his or her annuity or
compensation payments.5 BLI coverage shall be continued without cost to an employee who
retired or began receiving compensation on or before December 31, 1989,6 but the employee is

2

Supra note 1 at § 8702(a).

3

Id. at § 8702(b).

4

Id. at § 8707.

5

Id. at § 8706.

6

Id. at § 8707(b)(2).

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responsible for payment of premiums for OLI coverage which is accomplished by authorizing
withholdings from his or her compensation.7
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).8
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remains in effect.9 An employee who does
not file a Life Insurance Election with his or her employing office, in a manner designated by
OPM, specifically electing a type of optional insurance, is considered to have waived it and does
not have that type of optional insurance.10 When an under-withholding of life insurance premiums
occurs, the entire amount is deemed an overpayment of compensation because OWCP must pay
the full premium to OPM upon discovery of the error.11
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of duty.12 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.13
OWCP’s procedures provide that, once an overpayment is identified, it is responsible for
determining whether the claimant was with fault or without fault, issuing a preliminary finding,
7

Id. at § 8706(b)(3)(B). See B.B., Docket No. 17-1733 (issued March 26, 2018); S.B., Docket No. 16-1795 (issued
March 2, 2017).
8

See C.A., Docket No. 18-1284 (issued April 15, 2019); James J. Conway, Docket No. 04-2047 (issued
May 20, 2005).
9

5 C.F.R. § 870.504(a)(1).

10

Id. at § 870.504(b).

11

Supra note 1 at § 8707(d); see also B.B., supra note 7.

12

Supra note 1 at § 8102(a).

13

Id. at § 8129(a).

4

and unless a hearing is requested, OWCP is responsible for issuing a final decision.14 These
procedures note that, if the claimant is determined to be without fault, a preliminary overpayment
determination must be released along with a Form OWCP-20 within 30 days of the date the
overpayment is identified. Both the reason that the overpayment occurred and the reason for the
finding of without fault must be clearly stated. A preliminary overpayment determination informs
the claimant of the right to submit evidence and the right to a prerecoupment hearing on the issues
of: (a) fact and amount of overpayment; and (b) waiver of recovery of the overpayment. Along
with the preliminary overpayment determination, OWCP should provide a clearly written
statement explaining how the overpayment was created.15
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment in the amount of $7,094.17 for the period January 20, 2012 through April 29, 2017.
As noted, when an under-withholding of life insurance premiums occurs, the entire amount
is deemed an overpayment of compensation because OWCP must pay the full premium to OPM
upon discovery of the error.16 On December 2, 2016 an overpayment of compensation was
identified in connection with OWCP’s failure to deduct postretirement life insurance premiums
from appellant’s compensation benefits commencing effective January 20, 2012. On December 2,
2016 OWCP had received a document from OPM advising it that premium deductions for life
insurance, including postretirement life insurance, needed to be made commencing effective
January 20, 2012.17 It was not until May 26, 2017, however, that OWCP issued a preliminary
determination finding an overpayment in the amount of $7,094.17 had been created for the period
January 20, 2012 through April 29, 2017, i.e., the period of nondeduction of postretirement life
insurance. By decision dated January 31, 2018, OWCP’s hearing representative finalized the
preliminary overpayment determination and found appellant without fault in the creation of the
$7,094.17 overpayment, but denied waiver of recovery of the overpayment. The hearing
representative required recovery of the overpayment by deducting $300.00 from appellant’s
continuing compensation payments every 28 days.
The Board finds that OWCP failed to follow its procedures in issuing the January 31, 2018
overpayment decision. As noted, OWCP’s procedures provide that a preliminary overpayment
determination must be released along with a Form OWCP-20 within 30 days of the date the
overpayment is identified.18 In this case, OWCP first identified the overpayment of compensation
14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a)(2) (May 2004).
15

Id.; see also L.P., Docket No. 18-0095 (issued March 12, 2020).

16

See supra note 13.

17

See generally P.D., Docket No. 18-0557 (issued January 22, 2020); J.N., Docket No. 17-1890 (issued
November 26, 2019); M.L., Docket No. 19-0035 (issued November 4, 2019).
18

See supra note 15.

5

on December 2, 2016, but it did not, however, issue a preliminary notice regarding the
overpayment until May 26, 2017, i.e., more than 30 days later.
The Board thus finds that OWCP failed to follow its established procedures in determining
that appellant received an overpayment of compensation in the amount of $7,094.17 for the period
January 20, 2012 through April 29, 2017.19
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $7,094.17 for the period January 20, 2012 through
April 29, 2017.
ORDER
IT IS HEREBY ORDERED THAT the January 31, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 23, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

19
Based on the Board’s disposition of whether an overpayment of compensation was created, the issues of waiver
and recovery are moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
DEFENSE HEALTH AGENCY, NATIONAL
CAPITAL REGION MEDICAL
DIRECTORATE, Bethesda, MD, Employer
__________________________________________

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

Docket No. 16-1352
Issued: August 28, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On June 14, 2016 appellant filed a timely appeal from an April 13, 2016 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 appellant submitted additional evidence on appeal and to OWCP after the April 13, 2016
decision was issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the
time of its final decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish left wrist and upper
extremity conditions causally related to a July 21, 2015 employment incident.
FACTUAL HISTORY
On September 29, 2015 appellant, then a 46-year-old medical technologist, filed a
traumatic injury claim (Form CA-1) for a left wrist injury that allegedly occurred in the
performance of duty on July 21, 2015. She explained that she had been performing microscopic
work and using a manual counter with her left hand when she experienced pain in her left wrist.
In a July 30, 2015 narrative statement, appellant indicated that she had severe pain in her
left wrist and cervical spine due to repetitive motion at work over the past two months. She
noted that OWCP had previously accepted a cervical condition under File No. xxxxxx345 and
she believed that her condition had been aggravated by constant use of a microscope while
digitally counting cells, using a computer to enter results, constant standing, and bending her
head down to assist doctors with bone marrow procedures.
On July 21, 2015 Dr. Sharda Katyal, a Board-certified occupational medicine specialist,
diagnosed neck pain and left wrist pain and asserted that appellant had sustained a work-related
injury that day. He reported that appellant’s federal duties required working in the department of
pathology in laboratory services, which included bone marrow duties and manual differential
counts. Dr. Katyal found that appellant was developing symptoms in her left hand and forearm
and noted that she also had a preexisting cervical condition that had been aggravated by her
manual count of bone marrow. He described her duties as assisting physicians and prepping
patients by holding them still during procedures, which put strain on her cervical spine.
Dr. Katyal also reported that appellant was asked to perform manual differential counts that
required repeatedly looking under a microscope and manually using her left hand which caused
pain in her left wrist and forearm.
In a July 22, 2015 referral form, Dr. Katyal reiterated that appellant had sustained an
occupational injury and advised that she work under the following restrictions for the period
July 21 through September 1, 2015: no use of left arm, no use of left hand, no fine manipulation,
no lifting or carrying over 10 pounds, and no pulling or pushing over 10 pounds. Appellant also
advised appellant to avoid bone marrow duties and manual differential counts.
A July 23, 2015 electromyography (EMG) report was normal and showed no evidence of
an entrapment neuropathy at the wrist or elbow bilaterally, nor was there evidence of a cervical
radiculopathy, brachial plexopathy, or a generalized polyneuropathy. A September 3, 2015
magnetic resonance imaging (MRI) scan of the left wrist revealed tendinosis and a tendon tear.
In an August 20, 2015 report, Dr. Solomon Rojhani, a physiatrist, asserted that appellant
presented with left wrist pain radiating to the left hand and lower arm. He opined that this was a
chronic condition which had worsened in the past couple of months and was “aggravated by
activity.” Dr. Rojhani also asserted that appellant had a chronic neck problem and diagnosed
cervicalgia status post C5-7 fusion.

2

In an August 27, 2015 report, Dr. Akhil Chhatre, a Board-certified physiatrist, stated that
appellant was receiving treatment for her cervicalgia status post C5-7 fusion and left wrist
tendinitis. He asserted that appellant had a history of cervical radicular pain that was treated
with a C5-7 fusion and “continue[d] to have residual radicular pain that radiate[d] to her left
arm.” Dr. Chhatre reported that appellant presented with left wrist pain on July 21, 2015. A
clinical examination demonstrated a negative Tinel’s sign, an EMG showed no chronic nerve
damage in her left upper extremity, and an x-ray of the left wrist revealed no fracture,
dislocation, or soft tissue swelling. Dr. Chhatre reiterated his diagnosis of left wrist tendinitis
and advised her to avoid certain activities in her job, which required repetitive motion, including
manual differential counts and bone marrow duties.
On September 28, 2015 Dr. Chhatre diagnosed cervicalgia, left wrist pain, left wrist
tendinitis, and upper extremity tendon tear, left, sequela.
On October 21, 2015 appellant, through counsel, requested authorization for surgery of
her left wrist condition.
In a November 9, 2015 letter, OWCP indicated that when appellant’s claim was received
it appeared to be a minor injury that resulted in minimal or no lost time from work and, based on
these criteria and because the employing establishment had not controverted continuation of pay
or challenged the case, payment of a limited amount of medical expenses was administratively
approved. It stated that it had reopened the claim for consideration because appellant requested
authorization for surgery. OWCP requested additional evidence and afforded appellant 30 days
to respond to its inquiries.
In response, appellant submitted a November 13, 2015 narrative statement claiming that
she had been experiencing discomfort while performing manual differential counts since the end
of June 2015. On July 21, 2015 while performing manual cell differential counts, which she had
been doing “nonstop since May,” she suddenly experienced excruciating pain, weakness,
inability to grip anything, tenderness, warmth, burning, and stiffness in her left wrist and little
finger, which stopped her from continuing counting cells. Appellant stated that a bone marrow
procedure was also scheduled for that day and she went to a room to prepare a patient and had a
lot of pain and difficulty while trying to move her left wrist. She also experienced sharp pain
when entering data into the computer at work. Appellant stated that her left wrist tendon tear
injury occurred on July 21, 2015 due to the repetitive motion tasks she had performed at work
during the two and a half months prior. She also submitted a November 20, 2015 MRI scan of
the cervical spine which showed a normal evaluation of the spinal cord and no significant canal
or foraminal narrowing in the cervical spine.
In progress reports dated October 22 through November 17, 2015, Dr. Chhatre reiterated
his diagnoses. On December 3, 2015 he opined that appellant should remain off work until
cleared by an orthopedic surgeon for the tendon tear in her left wrist. On December 8, 2015
Dr. Chhatre reiterated his diagnoses and asserted that appellant had some minor discomfort in
her left wrist for a couple of months prior to July 21, 2015. On the date of injury, appellant was
performing manual cell differential counts with her left hand at work, using a digital cell counter.
While she was doing this, she had her head on a microscope and was entering data into the
computer while typing with her right hand. Appellant suddenly had an intolerable pain in her

3

left hand that prevented her from continuing to count the cells. She stated that as the day
progressed she could not even use her left hand, even to type on the computer.
By decision dated December 22, 2015, OWCP denied the claim on the basis that the
medical evidence failed to establish a causal relationship between appellant’s diagnosed
conditions and the July 21, 2015 employment incident.
On January 29, 2016 appellant, through counsel, requested reconsideration and submitted
a January 14, 2015 report from Dr. Chhatre who opined that appellant incurred the diagnosed
conditions of tendinitis and/or tendinosis of the left wrist and a left upper extremity tendon tear
as a result of doing a microscopic cell count on July 21, 2015.4 In a February 18, 2016 report,
Dr. Chhatre advised that appellant should remain off work for three months until cleared by an
orthopedic surgeon.
By decision dated April 13, 2016, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA, that an injury6 was sustained in the performance of
duty, as alleged, and that any disability or medical condition for which compensation is claimed
is causally related to the employment injury.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred, as alleged,
but fail to show that his or her condition relates to the employment incident.8

4

The report was most likely dated January 14, 2016; otherwise it would have been more than 6 months prior to
the July 21, 2015 employment incident.
5

Supra note 1.

6

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
7

See T.H., 59 ECAB 388 (2008).

8

Id.

4

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.9
ANALYSIS
OWCP has accepted that the employment incident of July 21, 2015 occurred at the time,
place, and in the manner alleged. The issue is whether appellant’s left wrist and upper extremity
conditions resulted from the July 21, 2015 employment incident. The Board finds that appellant
failed to meet her burden of proof to establish causal relationship between the conditions for
which compensation is claimed and the accepted employment incident.
In his reports, Dr. Chhatre diagnosed left wrist tendinitis and upper extremity tendon tear,
left, sequela. He opined that appellant incurred the diagnosed conditions as a result of doing a
microscopic cell count on July 21, 2015. Dr. Chhatre asserted that on the date of injury appellant
was performing manual cell differential counts with her left hand at work, using a digital cell
counter. While she was doing this, appellant had her head on a microscope and was entering
data into the computer while typing with her right hand when she suddenly felt an intolerable
pain in her left hand. A clinical examination demonstrated a negative Tinel’s sign, an EMG
showed no chronic nerve damage in her left upper extremity, and an x-ray of the left wrist
revealed no fracture, dislocation, or soft tissue swelling. The Board finds that Dr. Chhatre failed
to provide sufficient medical rationale as to how performing microscopic work and using a
manual counter at work on July 21, 2015 caused or aggravated appellant’s left wrist and upper
extremity conditions. Dr. Chhatre noted that appellant’s conditions occurred while she was at
work, but such generalized statements do not establish causal relationship because they merely
repeat appellant’s allegations and are unsupported by adequate medical rationale explaining how
her physical activity at work actually caused or aggravated the diagnosed conditions.10 He did
not otherwise sufficiently explain how diagnostic testing and examination findings led him to
conclude that the July 21, 2015 incident at work caused or contributed to the diagnosed
conditions. As such, the Board finds that the reports from Dr. Chhatre are insufficient to
establish left wrist and upper extremity conditions causally related to the July 21, 2015
employment incident.
Dr. Rojhani diagnosed radiating left wrist pain and opined that appellant had a chronic
condition which had worsened in the past couple of months and was “aggravated by activity.”
Dr. Katyal diagnosed left wrist pain and asserted that appellant had sustained a work-related
injury on July 21, 2015 as a result of her bone marrow duties and manual differential counts.
The Board finds that Drs. Rojhani’s and Katyal’s diagnosis of left wrist pain is a description of a

9

Id.

10

See K.W., Docket No. 10-98 (issued September 10, 2010).

5

symptom rather than a clear diagnosis of a medical condition.11 Moreover, appellant’s doctors
did not provide sufficient medical rationale explaining how her left wrist pain was caused or
aggravated by performing microscopic work and using a manual counter at work on
July 21, 2015. For these reasons, the Board finds that the reports from Drs. Rojhani and Katyal
are insufficient to establish that appellant sustained an employment-related injury.
Other medical evidence of record, including diagnostic test reports, are of limited
probative value as they do not specifically address whether appellant’s diagnosed conditions are
causally related to the July 21, 2015 work incident.12
The Board finds that appellant failed to submit rationalized medical evidence sufficient to
support her allegation or warrant further development that she sustained left wrist and upper
extremity conditions causally related to the accepted July 21, 2015 employment incident.
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 10.607.13
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish left wrist and
upper extremity conditions causally related to the July 21, 2015 employment incident.

11

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S.,
Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
12

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship).
13

The Board notes that appellant may separately file a new occupational disease claim or a claim for a recurrence
under File No. xxxxxx345.

6

ORDER
IT IS HEREBY ORDERED THAT the April 13, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 28, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, CORONADO
STATION, Santa Fe, NM, Employer
__________________________________________

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

Docket No. 13-968
Issued: September 11, 2013

Case Submitted on the Record

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

JURISDICTION
On March 18, 2013 appellant filed a timely appeal from a February 22, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) suspending his
compensation benefits. 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 OWCP properly suspended appellant’s compensation benefits
effective January 31, 2013 due to his failure to attend a scheduled medical examination.
On appeal, appellant contends, among other things, that Dr. Hendrick Arnold, a Boardcertified orthopedic surgeon, was not properly selected as the impartial medical examiner. He
states that OWCP did not conduct a search under the Physicians Directory System (PDS) for a
physician located in his geographical area.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board with respect to the termination of
appellant’s compensation.2 In a February 14, 2013 decision, the Board reversed an OWCP
hearing representative’s August 31, 2012 decision which terminated appellant’s wage-loss
compensation and medical benefits effective February 21, 2012 on the grounds that he no longer
had any residuals or disability causally related to his accepted December 4, 1996 employmentrelated injuries. The Board found an unresolved conflict in the medical opinion evidence
between Dr. Melburn K. Huebner, an OWCP referral physician, and Dr. Phillip A. Wong,
appellant’s attending physician, as to whether appellant had any continuing residuals and
disability causally related to his accepted employment-related injuries and whether the accepted
injuries caused consequential headaches and cervical and lumbar conditions. The facts and
history as set forth in the Board’s prior decision are incorporated by reference.3
Based on OWCP’s hearing representative’s August 31, 2012 decision, OWCP, by letter
dated October 5, 2012, referred appellant, together with a statement of accepted facts and the
medical record, to Dr. Arnold for an impartial medical examination. The examination was
scheduled for October 24, 2012 at 11:30 a.m. in Colorado Springs, Colorado. A referee medical
referral form listed physicians who could not be used to perform the impartial medical
examination because they were already involved in appellant’s case.
By letter dated October 9, 2012, appellant requested that OWCP provide a copy of the
statement of accepted facts and questions to be answered by Dr. Arnold. Citing, Board
precedent, he also requested a printout of the bypass pages for physicians who were not selected
as impartial medical examiners from the PDS.
By letter dated October 17, 2012, OWCP provided appellant with a copy of the statement
of accepted facts. It advised him that his request for copies of the bypass pages and his other
concerns regarding the referee selection would be addressed under separate cover.
On October 23, 2012 OWCP cancelled the October 24, 2012 appointment with
Dr. Arnold as the medical evidence established that appellant was unable to travel due to his
physical limitations. On December 13, 2012 it rescheduled the appointment with him. The
examination was now scheduled for January 30, 2013 at 11:30 a.m. in Colorado Springs,
Colorado. Appellant was advised that if he failed to keep the scheduled appointment he was to
inform OWCP in writing within seven days. He was also informed that his compensation could
be suspended for failure to attend the examination or for obstruction of the examination under 5
U.S.C. § 8123(d).
In letters dated December 28, 2012 through January 18 2013, appellant challenged
OWCP’s handling of his claim, including the selection of Dr. Arnold to conduct the impartial
2

Docket No. 13-47 (issued February 14, 2013).

3

OWCP accepted that on December 4, 1996 appellant, then a 49-year-old custodial laborer, sustained cervical
and lumbar sprains, myalgias and myositis while in the performance of duty. Appellant stopped work on
December 9, 1996 and resigned from the employing establishment in August 1997.

2

medical examination in Colorado Springs. He contended that he was physically unable to drive
long distance or travel by airplane. Appellant submitted a January 17, 2013 medical report from
Dr. Wong, who advised that appellant was neither physically nor emotionally capable of
traveling to the scheduled appointment. He could not drive long distance or fly due to his
diminished physical strength which varied from hour to hour and day to day, and stress from
being forced into small and confining areas, such as an airplane.
In a January 4, 2013 letter, OWCP advised appellant that it was difficult to find a
physician in New Mexico since its Denver District Office had recently taken over cases in New
Mexico. It was dismayed that so few physicians were in the national directory for selection.
Since appellant had been previously referred several times to various physicians, none of these
physicians could be used a second time. Therefore, OWCP stated that it was forced to search for
a physician nearest to him. Every effort had been made to select the closest physician. OWCP
authorized travel reimbursement for appellant.
On January 30, 2013 Dr. Arnold advised OWCP that appellant did not attend the
scheduled appointment.4
On January 31, 2013 OWCP proposed to suspend appellant’s compensation benefits
pursuant to section 8123(d) of FECA for failure to attend the January 30, 2013 examination with
Dr. Arnold. Appellant was advised to provide a written explanation of his reasons, with
substantive corroborating evidence, within 14 days for failing to attend the scheduled
examination.
In letters dated January 24 and February 6 and 8, 2013, appellant continued to object to
the selection of Dr. Arnold as the impartial medical examiner.
In a February 22, 2013 decision, OWCP finalized its proposed suspension, effective
January 31, 2013. It found that the weight of the medical evidence established that appellant had
no physical limitations for travel and that he was capable of gainful employment. OWCP
informed him that his compensation would be reinstated after he attended and fully cooperated
with an examination.
LEGAL PRECEDENT
Section 8123 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.5 The Board has noted that the
appointment of a referee physician under this section is mandatory in cases where there is such

4

Although appellant did not appear at the scheduled examination, Dr. Arnold prepared and submitted a report
dated January 30, 2013 based on his review of appellant’s medical records. He opined that appellant no longer had
any residuals or disability related to his December 4, 1997 employment injuries. Appellant did not require any
further medical treatment. He could perform his regular work duties, eight hours a day with no restrictions.
5

5 U.S.C § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

3

disagreement and that failure of OWCP to properly appoint a medical referee may constitute
reversible error.6
In cases arising under section 8123(a), the Board has long recognized the discretion of
the Director to appoint physicians to examine claimants under FECA in the adjudication of
claims.7 FECA does not specify how the appointment of a medical referee is to be
accomplished. Moreover, it is silent as to the qualifications of the physicians to be considered.8
The implementing federal regulations, citing to the Board’s decision in James P. Roberts,
provide that development of the claim is appropriate when a conflict arises between medical
opinions of virtually equal weight.9 The regulations state:
“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’s medical
adviser or consultant, OWCP shall appoint a third physician to make an
examination (see § 10.502). This is called a referee examination. OWCP will
select a physician who is qualified in the appropriate specialty and who has had
no prior connection with the case.”10
Congress did not address the manner by which an impartial medical referee is to be
selected.11 Rather, this was left to the expertise of the Director in administering the
compensation program created under FECA.12 It is an established principle, however, that
FECA is a remedial statute and should be broadly construed in favor of the employee to
effectuate its purpose and not in derogation of an employee’s rights.13 The primary rule of
statutory construction is to give effect to legislative intent and, in arriving at intent; it is well
settled that the words in a statute should be construed according to their common usage.14 The

6

See Tony F. Chilefone, 3 ECAB 67 (1949).

7

See William C. Gregory, 4 ECAB 6 (1950).

8

The legislative history on the enactment of FECA in 1916 and on the subsequent amendments contains no
discussion and thus no guidance on the meaning or intended operation of the medical referee provision. See Melvina
Jackson, 38 ECAB 443 (1987).
9

20 C.F.R. § 10.321(a); James P. Roberts, 31 ECAB 1010 (1980).

10

Id. at § 10.321(b). OWCP will pay for second opinion and referee medical examinations, reimbursing the
employee all necessary and reasonable expenses incidental to such examination. 20 C.F.R. § 10.322.
11

The Board has noted that the terms of section 8123(a) are not clear and unambiguous. Melvina Jackson, supra
note 8. The Board found that the definition of the term examination under FECA was sufficiently broad in scope as
to encompass the interpretation of an examination by OWCP’s medical adviser. Id. at 448. To effectuate the
purpose of the medical referee provision, the Board found that a medical adviser who did not physically examine the
employee may, in appropriate circumstances, create a conflict in medical opinion. Id. at 449.
12

See, e.g., Harry D. Butler, 43 ECAB 859, 866 (1992) (the Director delegated discretion in determining the
manner by which permanent impairment is evaluated for schedule award purposes).
13

See Stephen R. Lubin, 43 ECAB 564, 569 (1992); Samuel Berlin, 4 ECAB 39 (1950).

14

See Erin J. Belue, 13 ECAB 88 (1961). See also Sutherland Stat. Const. § 65.03, 239-40 (4th ed. 1986).

4

Board notes that the Director of OWCP has been delegated authority under FECA in the
selection of a medical referee physician through section 8123(a).
Under FECA, the Director has exercised discretion to implement practices pertaining to
the selection of the impartial medical referee. Unlike second opinion physicians, the selection of
referee physicians is made from a strict rotational system.15 OWCP will select a physician who
is qualified in the appropriate medical specialty and who has no prior connection with the case.16
Physicians who may not serve as impartial specialists include those employed by, under contract
to or regularly associated with federal agencies;17 physicians previously connected with the claim
or claimant or physicians in partnership with those already so connected18 and physicians who
have acted as a medical consultant to OWCP.19 The fact that a physician has conducted second
opinion examinations in connection with FECA claims does not eliminate that individual from
serving as an impartial referee in a case in which he or she has no prior involvement.20
In turn, the Director has delegated authority to each district Office for selection of the
referee physician by use of the Medical Management Application (MMA) within Integrated
Federal Employee’s Compensation System (iFECS).21 This application contains the names of
physicians who are Board-certified in over 30 medical specialties for use as referees within
appropriate geographical areas.22 MMA in iFECS replaces the prior PDS method of
appointment.23 It provides for a rotation among physicians from the American Board of Medical
Specialties, including the medical boards of the American Medical Association, Guides to the
Evaluation of Permanent Impairment and those physicians Board-certified with the American
Osteopathic Association.24
Selection of the referee physician is made through use of the application by a medical
scheduler. The claims examiner may not dictate the physician to serve as the referee examiner.25
The medical scheduler inputs the claim number into the application, from which the claimant’s
home zip code is loaded.26 The scheduler chooses the type of examination to be performed
15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

16

Id. at Chapter 3.500.4(b)(1).

17

Id. at Chapter 3.500.4(b)(3)(a).

18

Id. at Chapter 3.500.4(b)(3)(b).

19

Id. at Chapter 3.500.4(b)(3)(c).

20

Id.

21

Id. at Chapter 3.500.4(b)(6) (July 2011).

22

Id. at Chapter 3.500.4(b)(6)(a).

23

Id. at Chapter 3.500.5.

24

Id. at Chapter 3.500.5(a).

25

Id. at Chapter 3.500.5(b).

26

Id. at Chapter 3.500.5(c).

5

(second opinion or impartial referee) and the applicable medical specialty. The next physician in
the roster appears on the screen and remains until an appointment is scheduled or the physician is
bypassed.27 If the physician agrees to the appointment, the date and time are entered into the
application. Upon entry of the appointment information, the application prompts the medical
scheduler to prepare a Form ME023, appointment notification report for imaging into the case
file.28 Once an appointment with a medical referee is scheduled the claimant and any authorized
representative is to be notified.29
Under the procedure manual, a claimant may request to participate in the selection of the
referee physician or may object to the physician selected under the MMA. In such instances, the
claimant must provide valid reasons for any request or objection to the claims examiner.30 The
right of the claimant to participate in the selection of the medical referee is not unqualified. He
or she must provide a valid reason, not limited to: (a) documented bias by the selected
physician; (b) documented unprofessional conduct by the selected physician; (c) a female
claimant who requests a female physician when gynecological examination is required; or (d) a
claimant with a medically documented inability to travel to the arranged appointment when an
appropriate specialist may be located closer.31 When the reasons are considered acceptable, the
claimant will be provided with a list of three specialists available through the MMA.32 If the
reason offered is determined to be invalid, a formal denial will issue if requested.33
ANALYSIS
The Board finds that this case is not in posture for decision and agrees with the argument
on appeal that OWCP has not established that Dr. Arnold was properly selected as the impartial
medical specialist.
It is well established that OWCP has an obligation to verify that it selected Dr. Arnold in
a fair and unbiased manner.34 It maintains records for this very purpose.35 The current record
27

Id. The roster of physicians is not made visible to the medical scheduler under the application. The medical
scheduler may update information pertaining to whether the selected physician can schedule an appointment in a
timely manner and, if not, will enter an appropriate bypass code. Id. at Chapter 3.500.5(e-f). Upon entry of a
bypass code, the MMA will present the next physician based on specialty and zip code.
28

Id. at Chapter 3.500.5(g). The Form ME023 serves as documentary evidence that the referee appointment was
scheduled through the MMA may be reproduced and copied for the case record.
29

Id. at Chapter 3.500.4(d). Notice should include the existence of a conflict in the medical evidence under
section 8123; the name and address of the referee physician with date and time of appointment; a warning of
suspension of benefits under section 8123(d) and information on how to claim travel expenses.
30

Id. at Chapter 3.500.4(f).

31

Id. at Chapter 3.500.4(f)(1).

32

Id. at Chapter 3.500.4(f)(1)(e)(2).

33

Id. at Chapter 3.500.4(f)(1)(e)(3).

34

J.W., Docket No. 12-331 (issued January 14, 2013).

35

M.A., Docket No. 07-1344 (issued February 19, 2008).

6

only includes an OWCP referral form which lists physicians who could not be selected as a
referee physician as they were already involved in appellant’s case. Although OWCP noted that
not many physicians were available to choose from and appellant had already been treated by
most, the record does not contain iFECS screen shots substantiating the selection of Dr. Arnold.
The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist. OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures.36
The Board will remand the case to OWCP for proper selection of a referee physician.
After such further development as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether OWCP properly
suspended appellant’s compensation benefits effective January 31, 2013 due to his failure to
attend a scheduled medical examination.

36

C.P., Docket No. 10-1247 (issued September 28, 2011).

7

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: September 11, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Akron, OH, Employer
__________________________________________

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

Docket No. 07-1188
Issued: November 16, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 23, 2007 appellant filed a timely appeal from a merit decision of an Office of
Workers’ Compensation Programs’ hearing representative dated March 1, 2007. Under
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 sustained any permanent impairment to a schedule
member of her body causally related to her accepted right shoulder condition, thereby entitling
her to a schedule award under 5 U.S.C. § 8107.
FACTUAL HISTORY
Appellant, a 54-year-old mail processor, filed a Form CA-2 claim for benefits on
March 12, 2003, alleging that she developed a right shoulder condition causally related to factors

of her federal employment. The Office accepted the claim for right supraspinatous tendon tear1
and rotator cuff syndrome of the right shoulder.
Dr. Marcy L. Dickey, an osteopath and appellant’s treating physician, performed
ameliorative surgery for right shoulder rotator cuff tear, impingement syndrome and
acromioclavicular osteoarthritis on September 8, 2003.
On November 18, 2004 appellant filed a Form CA-7 claim for a schedule award based on
a partial loss of use of her right upper extremity.
In order to determine appellant’s current condition, the Office referred appellant for an
examination with Dr. Michael J. Jurenevich, an osteopath. In an August 24, 2005 report,
Dr. Jurenevich noted no signs of impingement in the right shoulder and found that appellant had
fairly good range of motion with abduction and adduction of the shoulder. He stated that internal
and external motions were essentially normal as well. Dr. Jurenevich advised that appellant had
no residuals from her accepted right shoulder condition, with an essentially unremarkable
examination. He recommended that she be released to full duty.
In a report dated November 10, 2005, Dr. Dickey stated that she agreed with
Dr. Jurenevich’s opinion, finding that appellant could return to her full level of activity with no
restrictions. She stated that appellant had full range of motion in both shoulders with no
evidence of instability, focal weakness or impingement syndrome. Dr. Dickey recommended a
gradual return to full activity; she noted that, although she had previously recommended full duty
for four hours per day, including use of the OCR-BCS machine, appellant had not yet returned to
using that equipment. She stated:
“I do recommend that [appellant] return to full duty four hours a day times two
weeks to include work with the OCR-BCS machine. She then would return six
hours a day times two weeks to full duty including the OCR-BCS machine.
During these periods of some limitations of her activities, the remainder of the
day should include less aggressive activity. After gradual return to full activity, I
recommend that she work full duty with no restrictions.
“I believe that her gradual return to her full work activity with no limitations
would provide the safest means to full time full-duty gainful employment. I
believe with this type of schedule [appellant] will be considered at maximum
medical improvement with her level of maximum medical improvement reached
with this gradual return to activities.”
In a letter dated November 29, 2005, the Office found that there was a conflict in the
medical evidence between Dr. Dickey and Dr. Jurenevich regarding whether appellant had

1

The Office initially stated that the claim was accepted for left shoulder supraspinatous tendon tear. The Office
acknowledged and corrected this mistake on April 14, 2003, when it approved right shoulder decompression
surgery.

2

recovered from her work injury and whether she was able to return to work with restrictions.2
The Office referred appellant to Dr. Paul A. Steurer, a Board-certified orthopedic surgeon, for an
impartial medical examination. In a report dated January 9, 2006, Dr. Steurer reviewed the
medical history and statement of accepted facts and stated findings on examination. He noted
some tenderness and soreness in the right shoulder and stated that appellant had full range of
motion in the shoulder with pain at the extremes of motion. Dr. Steurer also advised that he
could not detect any gross motor weakness to manual muscle testing of the right shoulder. He
found based on his examination and reasonable medical probability that appellant continued to
have symptoms related to her work injury and accepted conditions. Dr. Steurer stated that these
conditions had not completely resolved. He concluded:
“Currently, her condition does preclude her to perform her normal duties as a mail
processor. She is capable of working and in fact is currently working at this time.
Her only limitations would be ... doing repetitive overhead use more than two
hours per day. I would certainly keep her weight limitations at 30 [to] 40 pounds,
which she currently is at. I believe these restrictions are in all probability going to
be permanent in nature. Other than routine follow-up I do not think any other,
medical treatment is needed at this time.”
In a supplemental report dated January 26, 2006, Dr. Steurer stated:
“On my examination [appellant] had a normal range of motion and normal
strength in [her right upper extremity]. As a result of this, her impairment rating
would be zero percent. [Appellant] has reached maximum medical improvement
for this condition, the exact date I cannot determine.”
By decision dated March 8, 2006, the Office denied appellant’s schedule award claim.
The Office found that Dr. Steurer’s opinion represented the weight of the medical evidence.
By letter dated March 27, 2006, appellant’s attorney requested an oral hearing, which was
held on January 23, 2007. She submitted an April 18, 2006 report from Dr. Timothy Morley, an
osteopath, who found that appellant had 13 percent permanent impairment of the right upper
extremity pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (fifth edition) (the A.M.A., Guides). Dr. Morley stated:
“Examination of the right shoulder reveals some well-healed scars over the right
shoulder. There is some tenderness to the acromioclavicular joint as well as
superior shoulder joint on the right. Flexion is limited to 120 degrees and
abduction is at 110 degrees. Internal rotation is limited to 40 degrees and external
rotation is at 50 degrees. Extension is to 30 degrees as is adduction. Referring to
Figures 16-40, 16-43 and 16-46, there is a four percent upper extremity
impairment for limitation in flexion, one percent impairment upper extremity
impairment for extension, three percent upper extremity impairment for
2

The Board notes that the Office found a conflict regarding these issues despite the fact that Dr. Dickey stated her
agreement with Dr. Jurenevich’s findings and irrespective of the fact that appellant had filed a claim for a schedule
award.

3

abduction, one percent upper extremity impairment for adduction, three percent
upper extremity impairment for internal rotation and one percent for external
rotation. There is decreased strength with resistance to abduction which is 4/5.
Distal pulses are maintained. There is no atrophy. There is no sensory deficit.”
By decision dated March 1, 2007, an Office hearing representative affirmed the March 8,
2006 Office decision. The hearing representative stated in a footnote that it was unclear how the
Office determined that there was a conflict between Drs. Dickey and Jurenevich given the fact
that Dr. Dickey stated her agreement with Dr. Jurenevich’s findings. He found, however, that
Dr. Steurer’s opinion that appellant had a zero percent impairment stemming from her accepted
right shoulder condition was entitled to the special weight of an impartial medical examiner and
represented the weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.4 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule
losses.5
ANALYSIS
The Board finds that the case is not in posture for decision.
The Board initially finds that the Office erred in finding a conflict in the medical
evidence, regarding the issue of permanent impairment, prior to its March 8, 2006 decision. The
Board notes that, in his March 1, 2007 decision, the hearing representative expressed
disagreement with the Office’s finding that a conflict existed between Drs. Jurenevich and
Dickey. The hearing representative correctly stated in a footnote that Dr. Dickey had agreed
with Dr. Jurenevich’s findings. Both physicians agreed that appellant could return to full duty
without restrictions; they differed in their opinions only to the extent that Dr. Dickey
recommended a gradual return to full duty. Further, although appellant had filed a claim for a
schedule award, neither Dr. Dickey nor Dr. Jurenevich submitted an impairment evaluation
pursuant to the A.M.A., Guides to determine whether appellant has any permanent impairment
stemming from her accepted right shoulder condition. Therefore, the hearing representative
erred in finding that Dr. Steurer’s opinion merited the special weight of an impartial examiner

3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

5 U.S.C. § 8107(c)(19).

5

20 C.F.R. § 10.404.

4

regarding the issue of permanent impairment.6 Nevertheless, as Dr. Steurer’s finding that
appellant had a zero percent impairment was the only medical opinion in the record bearing on
the issue of whether appellant has any permanent impairment stemming from her accepted right
shoulder condition, the Office’s March 8, 2006 decision was proper and based on the medical
evidence of record.
Following the March 8, 2006 decision, appellant requested an oral hearing and submitted
Dr. Morley’s April 18, 2006 report. Dr. Morley had appellant undergo an impairment evaluation
and applied the applicable standards, figures and tables of the A.M.A., Guides. Based on this
evaluation, he determined that appellant had a 13 percent permanent impairment of the right
upper extremity. The Board finds that Dr. Morley’s report created a conflict in the medical
evidence. When such conflicts in medical opinion arise, 5 U.S.C. § 8123(a) requires the Office
to appoint a third or “referee” physician, also known as an “impartial medical examiner.”7
Accordingly, the Board will set aside the Office’s March 1, 2007 decision and remand the case to
the Office for referral to an impartial medical specialist to resolve the conflict in medical
evidence regarding whether appellant has any permanent impairment stemming from her
accepted right shoulder condition. After such development as it deems necessary, the Office
shall issue a de novo decision.
The Board finds that the Office’s decision must be set aside and remanded to resolve the
conflict in medical evidence.
CONCLUSION
The Board finds that the case is not in posture for decision.

6

The Board notes that Dr. Steurer did not render any findings with any of the tables or figures in accordance with
the fifth edition of the A.M.A., Guides, which is the current, applicable standard for rating impairments on which
schedule awards are based.
7

Section 8123(a) of the Act provides in pertinent part, “(i)f 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 an examination.” See Dallas E. Mopps, 44 ECAB 454 (1993).

5

ORDER
IT IS HEREBY ORDERED THAT the March 1, 2007 decision of the Office of
Workers’ Compensation Programs be set aside consistent with this decision.
Issued: November 16, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant (widower of A.O.)
and
U.S. DEPARTMENT OF STATE, FOREIGN
SERVICE, Washington, DC, Employer
__________________________________________
Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0938
Issued: December 3, 2020

Case Submitted on the Record

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

On March 26, 2020 appellant, through counsel, filed a timely appeal from a September 30,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards docketed the appeal as Docket No. 20-0938.2
On August 7, 1998 appellant (then 45 years old), the employee’s widower, filed a claim
for survivor’s benefits (Form CA-5), alleging that on that date the employee (then 36 years old)
died of a massive cranial injury caused by a terrorist bombing attack at the American Embassy in
Nairobi, Kenya. He listed their daughter, M.O., then 2 years old, their daughter, T.O., then 4 years
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

The Board notes that, following the September 30, 2019 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
evidence for the first time on appeal. Id.

old, and stepdaughter, J.O., then 14 years old, as the children from his marriage with the employee
appellant. Appellant provided their marriage certificate, the employee’s death certificate, and the
birth certificates of the minor children. The record indicates that OWCP initially paid survivor
benefits for appellant and the minor children M.O. and T.O. on August 16, 1998.3
On September 1, 1998 OWCP advised appellant that he would receive continuing
compensation every 28 days in the amount of $3,022.79 for survivor benefits as a spouse and on
behalf of daughters M.O. and T.O.
In a preliminary overpayment determination dated April 8, 2019, OWCP informed
appellant that he had received an overpayment of compensation in the amount of $464,629.10 for
the period August 7, 1998 through August 1, 2014 because it failed to offset his compensation
payments by the portion of his Social Security Administration (SSA) survivors benefits that were
attributable to the employee’s federal service. It determined that he was without fault in the
creation of the overpayment because he relied on information given by OWCP as to the
interpretation of a pertinent provision of FECA or its regulations. OWCP requested that appellant
complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documentation. Additionally, it notified him that within 30 days of the date
of the letter he could request a telephonic conference, a final decision based on the written
evidence, or a prerecoupment hearing.
On May 7, 2019 appellant requested a prerecoupment hearing. He indicated that he
disagreed that both the overpayment occurred and the amount of the overpayment. Appellant also
requested a waiver because he was found to be without fault in the creation of the overpayment.
On August 29, 2019 an OWCP hearing representative conducted a prerecoupment hearing.
By decision dated September 30, 2019, an OWCP hearing representative finalized OWCP’s
preliminary determination that appellant had received an overpayment of compensation in the
amount of $464,629.10 for the period August 7, 1998 through August 1, 2014 because a portion
of his SSA survivors benefits were based on credits the employee earned in federal service,
resulting in a prohibited dual benefit. It further found that he was without fault in the creation of
the overpayment because he could not have reasonably known his FECA survivor benefits did not
include a FERS offset. However, OWCP denied waiver of recovery of the overpayment because
the evidence of record was insufficient to establish that recovery would defeat the purpose of
FECA or would be against equity and good conscience. It required recovery of the overpayment
by deducting $5,000.00 every 28 days from appellant’s continuing wage-loss compensation
payments.
The Board has duly considered the matter and finds that the case is not in posture for
decision.

3
The Board notes that significant financial documentation of appellant’s alleged receipt of Federal Employees’
Compensation Act (FECA) benefits is not present in the record.

2

FECA survivor’s benefits attributable to an employee’s federal service constitute a
prohibited dual benefit if paid concurrently with SSA survivors benefits, based upon the
employee’s federal service.4
The case record as transmitted to the Board is missing substantial portions of documents
related to the employee’s federal service, most documents related to appellant’s alleged receipt of
FECA survivor’s benefits prior to 2002, and documents related to appellant’s receipt of SSA
survivors benefits. The Board is therefore unable to determine whether OWCP properly
determined fact and amount of the overpayment. For example, the record does not document by
Standard Form (SF)-50 or other evidence that the employee was covered by a Federal Employees
Retirement System (FERS) retirement plan. The Board is therefore unable to determine whether
appellant received a FECA death benefit, which was subject to the SSA FERS survivors offset.
Also, while the evidence of record establishes that the employee had three minor daughters at the
time of her death, the record indicates that appellant received FECA survivor’s benefits on behalf
of himself, and two minor daughters. There is no documentation of record as to whether the SSA
survivor’s benefits, which are the subject of the overpayment offset, were, however, paid on behalf
of appellant and all three of the employee’s minor daughters.
Because the record as transmitted to the Board is incomplete and would not permit an
informed adjudication of the case,5 the Board is unable to properly consider and determine fact
and amount of the overpayment. The case, therefore, is remanded to OWCP for reconstruction
and proper assemblage of the record.6 After such further development as deemed necessary,
OWCP shall issue a de novo decision on appellant’s alleged overpayment.

4
5 U.S.C. § 8116(d)(2) of FECA provides for limitations on the right to receive compensation and states in pertinent
part: “(d) Notwithstanding the other provisions of this section, an individual receiving benefits for disability or death
under this subchapter who is also receiving benefits under [S]ubchapter [3] of [C]hapter 84 of this title or benefits
under [T]itle [2] of the [SSA] shall be entitled to all such benefits, except that –”...(2) in the case of benefits received
on account of age or death under [T]itle [2] of the [SSA,] compensation payable under this subchapter based on the
[f]ederal service of an employee shall be reduced by the amount of any such social security benefits payable that are
attributable to [f]ederal service of that employee covered by [C]hapter 84 of this title.” See M.M., Docket No. 17-0560
(issued August 23, 2017).
5

See D.H., Docket No. 17-0224 (issued August 16, 2018).

6

Id.

3

IT IS HEREBY ORDERED THAT the September 30, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 3, 2020
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

4