United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Holtsville, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-401
Issued: January 8, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 20, 2007 appellant filed a timely appeal of an October 25, 2007 decision of
the Office of Workers’ Compensation Programs which denied his request for a review of the
written record. He also timely appealed the Office’s August 23, 2007 wage-earning capacity
determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of appellant’s claim.1
ISSUES
The issues are: (1) whether appellant’s actual earnings as a part-time, limited-duty tax
examining technician fairly and reasonably represent his wage-earning capacity; and (2) whether
the Branch of Hearings & Review properly denied his September 28, 2007 request for a review
of the written record.
1

The record on appeal contains evidence that was received after the Office issued its October 25, 2007 decision.
The Board may not consider evidence that was not in the case record when it rendered its final decision. 20 C.F.R.
§ 501.2 (2008).

FACTUAL HISTORY
Appellant, a 54-year-old tax examining technician, sustained multiple injuries on
August 18, 2005 when the chair he was attempting to sit on slid from beneath him causing
appellant to stumble backwards and fall. As he fell, his head struck a counter and his right knee
hit a computer desk. The computer began to fall and appellant caught it and fell to his knees.
The Office accepted the claim for neck sprain, cervicalgia, cervicobrachial syndrome, lumbago,
lumbar sprain and right knee sprain. Appellant received appropriate wage-loss compensation.
On November 6, 2006 appellant returned to work in a part-time, limited-duty capacity.
He worked four hours a day as a tax examiner and received wage-loss compensation for four
hours per day.2
Dr. David T. Zitner, a Board-certified orthopedic surgeon and impartial medical
examiner, saw appellant on November 14, 2006.3 He diagnosed cervical and lumbar strains and
right knee osteoarthritis. Dr. Zitner indicated that appellant was capable of performing limitedduty work, six hours a day. Appellant’s limitations were primarily due to his right knee
osteoarthritis, which Dr. Zitner found to be preexisting and only minimally aggravated by the
accepted August 18, 2005 employment injury.4 As to appellant’s work status, Dr. Zitner
explained that appellant was capable of sedentary work up to 6 hours per day, with breaks every
20 minutes to allow him to walk around. He further indicated that appellant was limited in
bending and lifting, but not significantly limited in sitting, working at a desk or keyboard. A
November 15, 2006 work capacity evaluation (Form OWCP-5c) provided a more detailed
account of appellant’s various limitations.5
On February 16, 2007 the employing establishment offered appellant a limited-duty
position as a tax examining technician working six hours per day. The offer was based on
Dr. Zitner’s November 15, 2006 work restrictions. Appellant accepted the position on
February 26, 2007 and began working a six-hour schedule.6 Thereafter, the Office paid appellant
two hours of wage-loss compensation per day.
2

The employing establishment extended an October 16, 2006 job offer was based on work restrictions imposed
by Dr. P. Leo Varriale, a Board-certified orthopedic surgeon and Office referral physician.
3

The Office had declared a conflict in medical opinion between Dr. Varriale and appellant’s then-treating
physician, Dr. George L. Colvin. In August 2006, both physicians imposed certain physical restrictions, but
Dr. Clovin found appellant capable of working full-time, limited-duty in contrast to Dr. Varriale’s recommended
four-hour workday.
4

The impartial medical examiner noted that appellant’s significant obesity also contributed to his symptoms and
disability.
5

Dr. Zitner reported that appellant had a “limited ability to sit for long periods.” Consistent with his narrative
report, he imposed a six-hour workday. Dr. Zitner also noted the following limitations: Sitting (six hours); walking
(three hours); standing (four hours); reaching (six hours); reaching above shoulder (six hours); twisting (four hours);
bending/stooping (two hours); operating a motor vehicle at work and to/from work (four hours); repetitive
wrists/elbow movements (four hours); pushing/pulling (4 hours/30 pounds); lifting (3 hours/20 pounds); squatting
and kneeling (one hour); climbing (two hours); and 20 minute breaks every 2 hours.
6

Although appellant was now working fewer hours, appellant retained his date-of-injury pay rate.

2

In a decision dated August 23, 2007, the Office found that appellant’s actual earnings of
$601.87 as a tax examining technician fairly and reasonably represented his wage-earning
capacity. It noted that the part-time position appellant held since February 2007 was consistent
with Dr. Zitner’s work restrictions. The Office further indicated that appellant had demonstrated
the ability to perform the duties of this job for two months or more. Although, appellant had
been working full-time prior to his employment injury, he currently was capable of working only
part time. The February 16, 2007 job offer was, therefore, suitable to his partially disabled
condition. The Office further advised that appellant’s wage-loss compensation was adjusted to
reflect his part-time weekly wages as a tax examining technician.
Appellant requested a review of the written record utilizing the appeal request form that
accompanied the August 23, 2007 decision.
He signed and dated the form on
September 20, 2007. However, appellant’s request was postmarked September 28, 2007, and it
was not received until October 15, 2007.
By decision dated October 25, 2007, the Branch of Hearings & Review denied
appellant’s request for a review of the written record. Appellant’s request was found untimely
and therefore, he was not entitled to a hearing as a matter of right. In denying a discretionary
hearing, the Branch of Hearings & Review advised appellant that he could pursue the issue by
requesting reconsideration before the district Office.
LEGAL PRECEDENT -- ISSUE 1
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on loss of wage-earning capacity.7 An
employee’s actual earned wages generally best reflect his or her wage-earning capacity.8 Absent
evidence that actual earnings do not fairly and reasonably represent the employee’s wage-earning
capacity, such earnings must be accepted as representative of the individual’s wage-earning
capacity.9
A determination of whether actual earnings fairly and reasonably represent wage-earning
capacity should be made only after an employee has worked in a given position for more than 60
days.10 Factors to be considered in determining if a position fairly and reasonably represents the
injured employee’s wage-earning capacity include: (1) whether the kind of appointment and tour
of duty are at least equivalent to those of the date-of-injury job; (2) whether the job is part time
or sporadic in nature; (3) whether the job is seasonal in an area where year-round employment is

7

20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

8

See 5 U.S.C. § 8115(a) (2000); Hayden C. Ross, 55 ECAB 455, 460 (2004).

9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (July 1997).

3

available; and (4) whether the job is temporary where the claimant’s previous job was
permanent.11
ANALYSIS -- ISSUE 1
Appellant’s part-time position as a limited-duty tax examining technician is in keeping
with the work restrictions identified by Dr. Zitner on November 15, 2006.12 Dr. Zitner’s
limitations were, in fact, more restrictive than the August 2, 2006 limitations imposed by
appellant’s then-treating physician, Dr. Colvin.
The most compelling measure of the
appropriateness of the current limited-duty assignment is the fact that appellant has performed
these duties for more than 60 days. Furthermore, he has offered no contemporaneous medical
evidence indicating an inability to perform some or all of his designated responsibilities. There
is also no evidence that the position is temporary, sporadic or seasonal. While the position is not
full time, that is merely a reflection of appellant’s physical limitations. Other than the number of
hours worked, there is no indication that his current appointment and tour of duty are
inconsistent with his date-of-injury job. Accordingly, the Board finds that appellant’s actual
earnings as a part-time, limited-duty tax examining technician fairly and reasonably represent his
wage-earning capacity.
LEGAL PRECEDENT -- ISSUE 2
Any claimant dissatisfied with a decision of the Office shall be afforded an opportunity
for an oral hearing or, in lieu thereof, a review of the written record.13 A request for either an
oral hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which a hearing is sought.14 If the request is not made within 30 days, a
claimant is not entitled to a hearing or a review of the written record as a matter of right. Office
regulations further provide that the “claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.”15 Although a
claimant may not be entitled to a hearing as a matter of right, the Office has discretionary
authority with respect to granting a hearing and the Office must exercise such discretion.16
ANALYSIS -- ISSUE 2
Appellant’s request for a review of the written record was postmarked
September 28, 2007, which is more than 30 days after the Office issued its August 23, 2007
decision. The regulations clearly specify that “[t]he hearing request must be sent within 30 days
11

Id. at Chapter 2.814.7(a).

12

The February 16, 2007 job offer mimics verbatim the limitations outlined in Dr. Zitner’s November 15, 2006
work capacity evaluation.
13

20 C.F.R. § 10.615.

14

20 C.F.R. § 10.616(a).

15

Id.

16

See Herbert C. Holley, 33 ECAB 140 (1981).

4

(as determined by postmark or other carrier’s date marking) of the date of the decision for which
a hearing is sought.”17 Appellant’s request was, therefore, untimely and as such, he was not
entitled to a review of the written record as a matter of right. In its October 25, 2007 decision,
the Branch of Hearings & Review also denied appellant’s request on the grounds that the
pertinent issue could be addressed by requesting reconsideration and submitting additional
evidence to the district Office. This is considered a proper exercise of the hearing
representative’s discretionary authority.18 Moreover, there is no evidence indicating that the
Branch of Hearings & Review otherwise abused its discretion in denying appellant’s request.
Accordingly, the Board finds that the Branch of Hearings & Review properly exercised its
discretion in denying appellant’s request for a review of the written record.
CONCLUSION
Appellant’s actual earnings as a part-time, limited-duty tax examining technician fairly
and reasonably represent his wage-earning capacity. The Board further finds that the Branch of
Hearings & Review properly denied appellant’s September 28, 2007 request for a review of the
written record.
ORDER
IT IS HEREBY ORDERED THAT the October 25 and August 23, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: January 8, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
17

20 C.F.R. § 10.616(a).

18

Mary B. Moss, 40 ECAB 640, 647 (1989).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Clair Shores, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-192
Issued: July 27, 2009

Case Submitted on the Record

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

JURISDICTION
On October 27, 2008 appellant, through her representative, filed a timely appeal from the
October 3, 2008 merit decision of the Office of Workers’ Compensation Programs, which denied
her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of the case.
ISSUE
The issue is whether appellant’s falls at work on February 19, 2008 caused an injury.
Appellant’s attorney argues that the Office’s decision is contrary to fact and law.
FACTUAL HISTORY
On February 21, 2008 appellant, then a 35-year-old letter carrier, filed a claim alleging
that she sustained an injury in the performance of duty on February 19, 2008: “I was walking
my route and fell on ice, that was underneath snow.” She fell on her knees and hands and fell
again on her back and buttocks. Dr. Varsha S. Revankar, a specialist in internal medicine,
reported that she was treating appellant for a fall and lower back pain. She stated that appellant

was being seen for backache due to injury. On March 6, 2008 Dr. Revankar diagnosed low back
pain.
On March 13, 2008 Dr. Revankar completed an attending physician’s form report. She
diagnosed “low back injury” and indicated with an affirmative mark that the condition found was
caused or aggravated by her fall on the ice.
On April 21, 2008 Dr. Revankar noted that appellant, who was pregnant, did not have
back pain from her pregnancy prior to the fall at work. “It is very hard to say how much of her
back pain is from the pregnancy and how much is due to injury. Given that the back pain was
not there prior to the fall I would say it is most likely due to the fall.”
On June 26, 2008 Dr. Revankar stated that appellant’s low back pain was not getting any
better, even after having her child. “This pain is most likely from her injury.” Dr. Revankar
added:
“The patient was also given a letter through the postal service stating that this is
not a workers’ compensation issue, but to notice the patient never had back pain
before she fell on ice in this winter while on job duty and she has had back pain
since then and now the back pain is not getting better even after she has delivered,
so that does indicate this is the back injury, which sustained at work.”
On July 9, 2008 Dr. Revankar diagnosed lumbar strain with functional limitations related
to poor posture and body mechanics, trunk and lower extremity weakness and soft tissue and
joint restrictions.
Appellant came under the care of Dr. Brian D. Titesworth, another internist. On
August 12, 2008 Dr. Titesworth reported that appellant had been diagnosed with lumbar
strain/low back strain. He stated: “It is of note that the patient did not have back pain prior to
this incident and her condition has not improved following the birth of her child 1½ months
ago.”
In a decision dated October 3, 2008, the Office denied appellant’s claim for
compensation. It found that the medical evidence was inadequate to establish a causal
relationship between the incident at work and appellant’s medical diagnosis.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.1 An
employee seeking benefits under the Act has the burden of proof to establish the essential
elements of her claim. When an employee claims that she sustained an injury in the performance
of duty, she must submit sufficient evidence to establish that she experienced a specific event,

1

5 U.S.C. § 8102(a).

2

incident or exposure occurring at the time, place and in the manner alleged. She must also
establish that such event, incident or exposure caused an injury.2
Causal relationship is a medical issue3 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,4 must be one of reasonable medical certainty5
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.6
When a physician’s opinion on causal relationship consists only of checking “yes” to a
form question, that opinion has little probative value and is insufficient to establish causal
relationship.7
When a physician concludes that a condition is causally related to an employment
because the employee was asymptomatic before the employment injury, the opinion is
insufficient, without supporting medical rationale, to establish causal relationship.8
ANALYSIS
The Office accepted that appellant twice slipped and fell on the ice while in the
performance of duty on February 19, 2008. She has established that she experienced a specific
incident occurring at the time, place and in the manner alleged. The only question that remains
is whether the incident that day caused or aggravated a diagnosed medical condition.
The Board notes that most of the medical evidence does not diagnose a specific medical
disease or pathology. The Board has held, generally, that low back pain or backache is a
symptom not a specific medical condition.9 It does not inform the Office what medical condition
is being treated or what medical condition is causing the employee’s complaint. Appellant’s
only diagnosis came on July 9, 2008, when Dr. Revankar, her internist, diagnosed lumbar strain,
which is a soft-tissue injury to a musculotendinous structure.
2

E.g., John J. Carlone, 41 ECAB 354 (1989).

3

Mary J. Briggs, 37 ECAB 578 (1986).

4

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

See Morris Scanlon, 11 ECAB 384, 385 (1960).

6

See William E. Enright, 31 ECAB 426, 430 (1980).

7

E.g., Lillian M. Jones, 34 ECAB 379 (1982).

8

Thomas D. Petrylak, 39 ECAB 276 (1987).

9

Robert Broome, 55 ECAB 339 (2004).

3

Dr. Revankar attributed appellant’s low back condition to her fall at work because, as
stated on April 21, 2008, appellant’s back pain “was not there prior to the fall.” Although a
temporal relationship may be consistent with causal relationship, it is not sufficient to establish
that causal relationship.10 It is not enough simply to state that a causal relationship exists.
Dr. Revankar must support her opinion with sound medical reasoning sufficient to convince a lay
adjudicator that her conclusion is rational and logical. She must clearly explain from a medical
perspective how the specific incident in question caused or aggravated appellant’s diagnosed
medical condition. It is for this reason that Dr. Revankar’s March 13, 2008 attending physician’s
form report carries little probative weight. Simply checking “yes” to a form question does not
provide the medical explanation required to establish a causal relationship between appellant’s
February 19, 2008 falls at work and her diagnosed lumbar strain.
Dr. Revankar’s June 26, 2008 report again pointed out that appellant was asymptomatic
before she fell on the ice, stating that her low back pain was not getting better after she delivered
her baby. Dr. Revankar’s conclusion rested in part on the exclusion of another possible cause.
She did not explain whether low back pain during pregnancy always or usually resolves once the
mother delivers or address how falling on ice, in the manner that appellant fell, would cause a
lumbar strain. Dr. Revankar’s July 9, 2008 report diagnosed lumbar strain with functional
limitations related to poor posture and body mechanics, trunk and lower extremity weakness, and
soft tissue and joint restrictions. This report did not appear to attribute appellant’s lumbar strain
to the falls at work on February 19, 2008. Dr. Titesworth, the internist who took over appellant’s
care, repeated Dr. Revankar’s June 26, 2008 observations. His August 12, 2008 report is
similarly deficient in addressing the issue of causal relation.
Because appellant did not submit a well-reasoned medical opinion explaining how the
incident at work on February 19, 2008 caused or aggravated a diagnosed lumbar strain, the
Board finds that she has not met her burden of proof to establish the critical element of causal
relationship. The Board will affirm the Office’s October 3, 2008 decision denying her claim for
compensation benefits.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on February 19, 2008. The medical opinion
evidence is insufficient to establish causal relationship.

10

See id.

4

ORDER
IT IS HEREBY ORDERED THAT the October 3, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 27, 2009
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE ARMY, MEDICAL
COMMAND, Fort Dix, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1083
Issued: March 3, 2011

Case Submitted on the Record

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

JURISDICTION
On March 8, 2010 appellant filed a timely appeal from an October 23, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration without a merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over this decision. Because more than 180 days elapsed between the most recent
Office merit decision dated August 17, 2009 to the filing of this appeal, the Board lacks
jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without a merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 29, 1982 appellant, then a 49-year-old medical clerk, filed a traumatic injury
claim alleging that she fell in a parking lot on that day and injured her left shoulder, right hip,
ribs and spine. Initial July 21, 1982 reports from Dr. Lynn K. Cook, an osteopath, diagnosed

torn intercostal and left shoulder cartilage, chronic lumbosacral strain and fracture of the greater
trochanter and found appellant to be totally disabled. The Office accepted the claim for
permanent aggravation to a preexisting total right hip replacement, cervical and lumbar strains,
intercostal tear and a left shoulder cartilage tear. Appellant worked intermittently until June 10,
1982 and did not return. She received compensation for total disability beginning June 11, 1982.
In a June 2, 1983 report, Dr. Robert N. Dunn, a Board-certified orthopedic surgeon, noted
that appellant related that she was involved in three car accidents and sustained neck and low
back injuries prior to the April 29, 1982 fall. He noted that she had Legg-Perthes disease of the
right hip since childhood and underwent an initial, unsuccessful Smith-Peterson arthroplasty in
1967 or 1968 and a subsequent total hip replacement. Hip x-rays showed the prosthesis in
satisfactory position with no discernable evidence of loosening while left shoulder x-rays showed
no bony pathology or rib fracture. Dr. Dunn stated that appellant was “guarded” during the
examination such that he was unable to record objective findings pertaining to her shoulder and
hip. He diagnosed right hip Legg-Perthes disease and contusion of the left scapula and soft
tissues around the posterior rhomboid area. Dr. Dunn opined that the April 29, 1982 fall
aggravated appellant’s underlying condition and necessitated total hip replacement. He added
that he was “unable to find any objective reason why [appellant] should be experiencing pain in
either her right hip or left shoulder” and she was “employable in any type of sedentary job or
jobs involving no heavy labor.”
In an October 14, 1988 report, Dr. William A. Taylor, a Board-certified orthopedic
surgeon, opined that appellant’s cup arthroplasty and August 1982 total hip replacement were
“simply and strictly directly related to her Legg-Perthes disease.”
An April 10, 1996 note from Dr. W. David Lindsay, an orthopedic surgeon and Office
referral physician, pointed out that previous diagnostic test results did not reveal any fracture or
acute evidence of trauma resulting from the April 29, 1982 incident. He noted that appellant’s
last orthopedic evaluation was in 1989. Dr. Lindsay examined her and observed stability of the
back and right hip, commenting that she did not exhibit any significant amount of pain and was
“comfortable.” He opined that appellant could return to sedentary, nonlifting work.
On October 8, 1996 appellant underwent a right total hip arthroplasty revision performed
by Dr. Stuart Stephenson, a Board-certified orthopedic surgeon.
The claim had no further medical development for several years. In a January 9, 2007
letter, the Office asked appellant to submit a physician’s medical report regarding her current
condition to determine whether she remained entitled to compensation benefits for continuing
disability. It did not receive a responsive report.
On September 13, 2007 the Office referred appellant for a second opinion examination to
Dr. Martin Pomphrey Jr., a Board-certified orthopedic surgeon. In Dr. Pomphrey’s October 25,
2007 report, appellant stated that she had a right shoulder injury and right hip fracture due to the
April 29, 1982 fall and underwent a repeat hip replacement in 1996. She complained of right toe
numbness, back pain and intermittent, postsurgical left knee crepitus, pain and buckling. An
x-ray did not indicate any loosening of the prosthesis or wear of the polyethylene liner.
Dr. Pomphrey noted examination findings that included antalgic gait, decreased sensation along

2

the lateral right thigh and dorsum of the right foot, shortening of the right leg, tenderness to
lumbosacral spine palpation and general decreased strength in both legs. He found excellent
range of motion (ROM) of both hips without pain. Dr. Pomphrey reviewed the medical reports
of Drs. Dunn, Taylor and Lindsey, noted the absence of medical treatment since 1996 and
diagnosed status post Legg-Perthes disease and left knee and low back pain. He attributed
appellant’s leg length discrepancy to her Legg-Perthes condition and opined that she “would
have required a total hip replacement prosthesis at some point in time regardless of her alleged
injury.” Dr. Pomphrey added that she could perform her primary employment duties and
“should have been able to return to work as a medical clerk within a reasonable time after her
total hip prosthesis in 1982.”
In January 10, 2008 and January 2, 2009 letters, the Office again asked appellant to
submit a physician’s medical report regarding her current condition to determine whether she
was entitled to continuing compensation benefits. It did not receive a response.
On June 3, 2009 the Office referred appellant for a second opinion examination to Dr. H.
Leslie Fowler, a Board-certified orthopedic surgeon. In a June 23, 2009 report, Dr. Fowler
detailed that she had preexisting Legg-Perthes disease and underwent a right hip arthroplasty in
1967, a total hip replacement in August 1982 and a revision total hip arthroplasty in
August 1996. He examined appellant and observed normal to “excellent” ROM of the hips,
knees and upper extremities, an antalgic gait secondary to a longstanding leg length discrepancy
and palpable arthritic changes in the lower extremities. Dr. Fowler concluded that objective
findings did not support the continued aggravation of Legg-Perthes disease, intercostal cartilage
tear or other residuals of the April 29, 1982 injury. He advised that appellant was capable of
performing the sedentary employment activities of her position.
On July 13, 2009 the Office proposed to terminate appellant’s compensation benefits on
the grounds that Dr. Fowler’s June 23, 2009 report established that she no longer had residuals of
her April 29, 1982 work injury. In a July 16, 2009 letter, appellant asserted that her accepted
conditions persisted and that the opinions of Drs. Fowler and Pomphrey were inadequate, based
on an inaccurate medical history and racially biased.
By decision dated August 17, 2009, the Office terminated appellant’s medical and
wage-loss benefits effective August 30, 2009.
Appellant requested reconsideration on October 5, 2009. She reasserted in July 20 and
October 5, 2009 statements that she had residuals of her April 29, 1982 injury, which worsened
over time, and that Drs. Fowler and Pomphrey were racially prejudiced against her. Appellant
also provided a September 9, 2009 letter from her congressional representative stating that she
was not physically able to hold a job due to an injury received in 1982, notifying the Office of
her intent to request reconsideration and asking that the termination of benefits be postponed in
the interim.
By decision dated October 23, 2009, the Office denied reconsideration, finding that
appellant did not submit any new and relevant medical information or legal argument warranting
review of the August 17, 2009 decision.

3

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,1 the Office’s regulations provide that the evidence or
argument submitted by a claimant must either: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.2 Where the request for reconsideration fails to meet at least one of
these standards, the Office will deny the application for reconsideration without reopening the
case for a review on the merits.3
ANALYSIS
Appellant requested reconsideration on October 5, 2009 and argued that she had residuals
of her April 29, 1982 injury and that Drs. Fowler and Pomphrey’s were racially biased. She did
not submit any evidence supporting her assertions of continued entitlement to benefits. The
underlying issue is medical in nature but appellant submitted no new medical evidence relevant
to whether she continued to have residuals of her 1982 work injury.4 Regarding her allegations
of bias, she submitted no evidence supporting her general allegations. While 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.5
Appellant also submitted a September 9, 2009 letter from her congressional
representative asserting that she had residuals of her 1982 injury and that her benefits should
continue until reconsideration proceedings concluded. While this letter was new, it is not
relevant. As noted, the underlying issue is medical in nature. This letter does not otherwise
show that the Office erroneously applied or interpreted a specific point of law or advance a
relevant legal argument not previously considered by the Office. The representative did not
provide any supporting evidence regarding the general contentions that residuals of the work
injury continued or that benefits should continue pending resolution of the reconsideration
process.
As appellant did not submit evidence or argument satisfying any of the three regulatory
criteria for reopening a claim, the Office properly denied her application for reconsideration
without reopening the claim for a review on the merits.
1

5 U.S.C. § 8128(a). See generally 5 U.S.C. §§ 8101-8193.

2

E.K., 61 ECAB ___ (Docket No. 09-1827, issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

3

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

4

See David E. Newman, 48 ECAB 305 (1997) (residual disability is a medical issue). See also Charley V.B.
Harley, 2 ECAB 208, 211 (1949) (medical opinion, in general, can only be given by a qualified physician).
5

L.G., 61 ECAB ___ (Docket No. 09-1517, issued March 3, 2010); Daniel O’Toole, 1 ECAB 107 (1948). The
Board has held that an employee may object to a physician conducting a second opinion examination if he or she has
reason to believe that the selected physician would be biased; however, he or she must submit evidence to support
the claim of bias. Edward Burton Lee, 53 ECAB 183, 187-88 (2001).

4

On appeal, appellant argues that the Drs. Fowler and Pomphrey opinions were biased and
that she has met every requirement of disability, continues to have residuals of the April 29, 1982
injury and has the support of her congressional representative.6 The Board only has jurisdiction
to consider whether the Office properly denied reconsideration without a merit review based on
the evidence of record at the time it issued its October 23, 2009 decision. As noted, appellant did
not submit any pertinent evidence or relevant legal argument in support of her reconsideration
request that warranted reopening of the August 17, 2009 decision.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

The Board notes that appellant submitted new medical evidence on appeal. As the Office has not considered
this evidence in reaching a decision, the Board may not consider it for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macon, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-613
Issued: September 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 7, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) August 30, 2010 nonmerit decision denying her request for
merit review. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit decision. The last merit
decision of OWCP was issued on July 6, 2010. The Board lacks jurisdiction to review the merits
of this claim.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

For final adverse decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19, 2008, a
claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
Appellant’s October 20, 2006 occupational disease claim was accepted for other
affections of the bilateral shoulders not elsewhere classified (impingement syndrome); bilateral
radial styloid tenosynovitis (de Quervain’s tenosynovotis); and bilateral carpal tunnel syndrome.
She was released by Dr. S. Mark Kamaleson, a treating physician, to return to light duty on
April 4, 2008.
On November 20, 2009 OWCP asked Dr. Kamaleson to provide an opinion as to whether
appellant had any permanent impairment of her upper extremities and to rate any such
impairment according to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).
In a report dated November 18, 2009, Dr. Kamaleson opined that appellant had a 34
percent permanent impairment of her right upper extremity and a 26 percent impairment of her
left upper extremity. He found that she had reached maximum medical improvement.
In a March 24, 2010 report, the district medical adviser applied the diagnosis-based index
approach referenced in the sixth edition of the A.M.A., Guides. He opined that appellant had a
five percent right shoulder impairment and a one percent right upper extremity impairment, for a
combined right upper extremity impairment of six percent. The medical adviser also concluded
that appellant had a four percent left shoulder impairment and a one percent left upper extremity
impairment, for a combined left upper extremity impairment of five percent.
In an April 19, 2010 decision, OWCP granted appellant schedule awards for six percent
for the right arm and five percent for the left arm. The date of maximum medical improvement
was determined to be November 18, 2009.
On May 26, 2010 appellant requested reconsideration.
In a May 5, 2010 report, Dr. Kamaleson revised his ratings referencing the sixth edition
of the A.M.A., Guides. He opined that appellant had a 6 percent left shoulder impairment and a
6 percent left hand impairment (CTS), for a combined left upper extremity impairment of 11
percent. Dr. Kamaleson further opined that appellant had a 5 percent right shoulder impairment,
a 2 percent right elbow impairment and a 6 percent right hand impairment (CTS), for a combined
right upper extremity impairment of 13 percent.
In a June 11, 2010 report, the district medical adviser stated that the medical evidence of
record provided no basis for an impairment rating for carpal tunnel syndrome. He noted that
there was no evaluation of a median nerve electrodiagnostic study, which was a requirement for
an impairment assessment under the A.M.A., Guides. The medical adviser reiterated his opinion
that appellant had a six percent permanent impairment of the right upper extremity and a five
percent permanent impairment of the left upper extremity.
In a July 6, 2010 decision, OWCP denied modification of its April 19, 2010 schedule
award decision, finding that the district medical adviser’s June 11, 2010 report conformed with
the requirements of the sixth edition of the A.M.A., Guides and constituted the weight of the
medical evidence.
2

On August 18, 2010 appellant submitted an appeal request form requesting
reconsideration. She submitted additional notes and reports from Dr. Kamaleson. On July 14,
2010 Dr. Kamaleson listed appellant’s complaint’s of chronic upper extremity pain. He stated
that she was overweight and had normal heel/toe gait. In an accompanying workers’
compensation report, Dr. Kamaleson indicated that appellant could return to work without
restrictions. The record also contains a prescription for a functional capacity evaluation.
Appellant submitted an August 10, 2010 functional capacity evaluation, signed by Cheryl
Armstrong, an occupational therapist. Appellant’s range of motion was within normal limits
except for shoulder flexion, which was from 0 to 130 degrees on the right and from 0 to 150
degrees on the left. Sensory evaluation indicated that bilateral upper and lower extremities were
intact to light touch. Muscle strength in all extremities was 5/5. Ms. Armstrong stated that
appellant demonstrated medium physical demand level based on her ability to lift, carry, push
and pull.
By decision dated August 30, 2010, OWCP denied appellant’s request for
reconsideration, finding that the evidence presented was insufficient to warrant further merit
review.
On appeal, appellant contends that her ratings should be higher because she experiences
throbbing pain and numbness in her hands and wrists.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP regulations provide that the evidence or argument submitted by a claimant must:
“(1) show that OWCP erroneously applied or interpreted a specific point of law;
“(2) advance a relevant legal argument not previously considered by OWCP; or
“(3) constitute relevant and pertinent new evidence not previously considered by
OWCP.”4
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant also must file his or her application for review within one year of the date of that
decision.5 When a claimant fails to meet one of the above standards, OWCP will deny the
application for reconsideration without reopening the case for review on the merits.6 The Board

3

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

3

has held that the submission of evidence which does not address the particular issue involved
does not constitute a basis for reopening a case.7
ANALYSIS
By decision dated July 6, 2010, OWCP denied modification of its April 19, 2010
schedule award decision, finding that the district medical adviser’s June 11, 2010 report
conformed to the requirements of the sixth edition of the A.M.A., Guides and constituted the
weight of the medical evidence. The issue is whether the evidence submitted in support of
appellant’s August 18, 2010 request for reconsideration is sufficient to warrant further merit
review pursuant to 20 C.F.R. § 10.606(b)(2). The Board finds that OWCP properly determined
that appellant was not entitled to a review of the merits of her claim.
In her application for reconsideration, appellant did not identify a specific point of law or
show that it was erroneously applied or interpreted. She did not advance a new and relevant
legal argument. A claimant may be entitled to a merit review by submitting new and relevant
evidence. Appellant did not, however, submit new and relevant medical evidence in this case.
Appellant submitted notes and reports from Dr. Kamaleson, who noted her complaint of
chronic upper extremity pain, provided minimal examination findings, and indicated that she
could return to work without restrictions. Dr. Kamaleson prescribed a functional capacity
evaluation. The issue for determination was whether appellant has more than six percent right
upper extremity impairment or five percent of the left arm. Dr. Kamaleson’s reports, which did
not address the degree of appellant’s permanent impairment, are irrelevant to this issue.
Appellant also submitted a functional capacity evaluation in which an occupational
therapist reported on appellant’s current work capacity. By definition, a functional capacity
evaluation is not relevant to the issue of permanent impairment. Additionally, the issue in this
case is medical in nature. As an occupational therapist is not considered a “physician” under
FECA, her report does not constitute probative medical evidence.8 Accordingly, OWCP
properly determined that this evidence did not constitute a basis for reopening the case for a
merit review.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.

7

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

8

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). 5 U.S.C. § 8101(2) of FECA
provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.” See
Merton J. Sills, 39 ECAB 572, 575 (1988).

4

On appeal, appellant contends that her ratings should be higher because she experiences
throbbing pain and numbness in her hands and wrists. As noted, the Board does not have
jurisdiction over the merits of this case. For reasons stated, the Board finds that the evidence
submitted in support of appellant’s request for reconsideration is insufficient to warrant further
merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 21, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

)
)
)
)
)
)
)
)

Appearances:
Manuel B. Madrid, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1000
Issued: March 25, 2022

Case Submitted on the Record

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

JURISDICTION
On June 21, 2021 appellant, through counsel, filed a timely appeal from an April 29, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

1

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

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of his oral argument request, appellant asserted that oral argument should be granted because it would provide
an opportunity to further explain his need for waiver of the overpayment. The Board, in exercising its discretion,
denies appellant’s request for oral argument because arguments on appeal can be adequately addressed in a decision
based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision
and not serve a useful purpose. As such, the oral argument request is denied and this decision is based on the case
record as submitted to the Board.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case. 4
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an overpayment
of compensation in the amount of $10,573.82 for the period October 28, 2019 through July 18,
2020 for which he was without fault because he concurrently received FECA wage -loss
compensation benefits and Social Security Administration (SSA) age-related retirement benefits
without appropriate offset; (2) whether it properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly found that appellant abandoned his request for a prerecoupment
hearing.
FACTUAL HISTORY
On December 7, 2017 appellant, then a 64-year-old maintenance mechanic, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral shoulder conditions
due to factors of his federal employment, including heavy lifting, and repetitive reaching and
pulling. He did not stop work. On May 10, 2019 OWCP accepted the claim for bilateral complete
rotator cuff tears or ruptures of the shoulders, calcific tendinitis of the right shoulder, and
impingement syndrome of the left shoulder.
On October 24, 2019 appellant filed a claim for compensation (Form CA-7) for disability
beginning October 28, 2019. He noted that he had applied for SSA age-related retirement benefits
at age 66 and received SSA benefits beginning on January 1, 2019 in the amount of $2,388.00 a
month. Appellant indicated that he was covered by the Federal Employees Retirement Sy stem
(FERS).
On October 28, 2019 appellant underwent a right shoulder arthroscopic rotator cuff repair,
biceps tenodesis, subacromial decompression, and extensive glenohumeral debridement.
On November 5, 2019 OWCP authorized wage-loss compensation on the supplemental
rolls effective October 28, 2019. It authorized wage-loss compensation on the periodic rolls
effective January 4, 2020.
On November 5, 2019 OWCP forwarded a FERS/SSA dual benefits calculation worksheet
to SSA. On February 19, 2020 the SSA provided OWCP with a February 14, 2020 FERS/SSA
dual benefit calculation form. The form indicated that appellant became entitled to retirement
benefits, effective November 2018, and that there were no federal earnings to offset.

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the April 29, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

In a March 3, 2020 letter, OWCP informed SSA that it was aware that appellant was
entitled to retirement benefits effective November 2018. It further noted that he was receiving
SSA retirement benefits and that he was covered under FERS. OWCP requested additional
confirmation from SSA that there was no offset necessary.
On July 20, 2020 OWCP received a completed FERS/SSA dual benefit calculation form
from SSA, which reported that appellant had been in receipt of SSA age -related retirement benefits
since November 2018. SSA reported that: beginning November 2018, appellant’s monthly SSA
rate with FERS was $2,285.90 and without FERS was $1,129.80; beginning December 2018,
appellant’s monthly SSA rate with FERS was $2,349.80 and without FERS was $1,161.40;
beginning January 2019, appellant’s monthly SSA rate with FERS was $2,355.00 and without
FERS was $1,161.40; and beginning December 2019, appellant’s monthly SSA rate with FERS
was $2,392.70 and without FERS was $1,179.90.
OWCP completed a FERS offset calculation f orm on August 12, 2020. It calculated the
amount that it should have offset from appellant’s wage-loss compensation from October 28, 2019
through July 18, 2020. OWCP found that for the period October 28 through November 30, 2019,
the daily offset was $39.35 or $1,337.88 for 34 days, and for the period December 1, 2019 through
July 18, 2020, the daily offset was $39.98, or $9,235.94 for 231 days. It added the amounts for
each period and determined that it should have offset a total of $ 10,573.81 from his wage-loss
compensation.
In an August 12, 2020 letter, OWCP informed appellant that it would begin deducting
$1,119.51, the portion of SSA age-related retirement benefits attributable to his federal service,
from his periodic compensation benefits.
On August 13, 2020 OWCP notified appellant of its preliminary overpayment
determination that he had received an overpayment of compensation in the amount of $10,573.82
because it had failed to reduce his wage-loss compensation benefits for the period October 28,
2019 through July 18, 2020 by the portion of his SSA age-related retirement benefits that were
attributable to federal service. It further advised him of its preliminary determination that he was
without fault in the creation of the overpayment. OWCP provided appellant with an overpayment
action request form and an overpayment recovery questionnaire (Form OWCP-20). Additionally,
it notified him that, within 30 days of the date of the letter, he could request a telephone conference,
a final decision based on the written evidence, or a prerecoupment hearing. 5
On September 11, 2020 appellant requested a prerecoupment hearing and completed an
overpayment action request form requesting waiver of recovery of the overpayment. He advised
that he had used the compensation on necessary expenditures that he would otherwise not have
been able to afford and could not repay the overpayment without financial hardship. On the Form
OWCP-20 appellant listed total monthly income of $7,497.00 and total monthly expenses of
$6,444.00. He listed real estate assets of $80,000.00 and $90,000.00, with mortgage balances of
$48,700.00 and $53,700.00, respectively, as well as a vacant lot worth $3,000.00. Appellant listed

5

By decision dated September 14, 2020, OWCP affirmed the August 13, 2020 preliminary overpayment findings.
On January 25, 2021 OWCP vacated a September 14, 2020 decision finalizing the preliminary overpayment
determination.

3

other assets totaling $5,200.00 including $500.00 in cash, $1,200.00 in checking, $500.00 in
savings, and stocks and bonds worth $3,000.00.
On March 5, 2021 OWCP’s hearing representative informed appellant of the time and
location of his prerecoupment hearing scheduled for April 15, 2021 at 2:45 p.m. Eastern Standard
Time (EST) regarding OWCP’s August 13, 2020 preliminary finding of the overpayment. It
mailed the notice to appellant’s last known address of record and provided instructions on how to
participate. Appellant did not appear at the hearing or request postponement of the hearing.
By decision dated April 29, 2021, OWCP’s hearing representative, after conducting a
review of the written record, found that appellant failed to attend the scheduled hearing and failed
to request postponement of the hearing. She, therefore, determined that appellant had abandoned
his hearing request. OWCP’s hearing representative further finalized the preliminary overpayment
determination, finding that appellant had received a $10,573.82 overpayment of compensation
from October 28, 2019 through July 18, 2020 because he had concurrently received FECA wageloss compensation and SSA age-related retirement benefits without the appropriate offset. She
also found that appellant was without fault in the creation of the overpayment, but denied waiver
of recovery of the overpayment as appellant’s monthly income of $7,497.00 exceeded his monthly
expenses of $6,444.14 by more than $50.00 and as he had assets of approximately $75,000.00
exceeding the base of $10,300.00 for an individual with a spouse. OWCP’s hearing representative
explained that, because he failed to meet both prongs of a two-prong test of whether recovery of
the overpayment would defeat the purpose of FECA, it was not necessary to consider waiver of
recovery on this basis. She further found appellant had not submitted evidence that he made any
financial decision that changed his position for the worse as a result of the receipt of the overpaid
benefits and, therefore, had not established that recovery of the debt would be against equity and
good conscience.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 6 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 7
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 8 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

4

benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $10,573.82 for the period October 28, 2019 through July 18, 2020
for which he was without fault, because he concurrently received FECA wage -loss compensation
benefits and SSA age-related retirement benefits without appropriate offset.
Appellant began receiving SSA age-related retirement benefits in November 2018. OWCP
paid appellant wage-loss compensation for total disability following his accepted employment
injury beginning October 28, 2019. As noted, a claimant cannot receive FECA compensation for
wage-loss and SSA age-related retirement benefits attributable to federal service for the same
period.10 Accordingly, the Board finds that fact of overpayment has been established.11
To determine the amount of the overpayment, the portion of SSA age-related retirement
benefits attributable to federal service must be calculated. OWCP received documentation from
SSA with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. SSA provided the SSA rates with FERS and without FERS for
specific periods from October 28, 2019 through July 18, 2020. OWCP set forth its calculations of
the amount that should have been offset during the relevant period based on informa tion provided
by SSA for the period October 28, 2019 through July 18, 2020.
The Board has reviewed OWCP’s calculation of dual benefits received by appellant for the
period October 28, 2019 through July 18, 2020 and finds that an overpayment of compensation in
the amount of $10,573.82 was created.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA 13 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. Thus, a
finding that appellant was without fault does not automatically result in waiver of the overpayment.
OWCP must exercise its discretion to determine whether recovery of th e overpayment would
defeat the purpose of FECA or would be against equity and good conscience. 14

9

FECA Bulletin No. 97-09 (February 3, 1997). See also N.B., Docket No. 18-0795 (issued January 4, 2019).

10

Supra note 8. See J.T., Docket No. 21-0010 (issued September 30, 2021); A.C., Docket No. 18-1550 (issued
February 21, 2019).
11

See S.H., Docket No. 20-1157 (issued December 23, 2020); K.H., Docket No. 18-0171 (issued August 2, 2018).

12

See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).

13

Supra note 3.

14

J.T., supra note 10; G.L., Docket No. 19-0297 (issued October 23, 2019).

5

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs sub stantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics. 15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant not at fault in the creation of the overpayment, waiver must be
considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 16 It considered his
financial information to determine if recovery of the overpayment would defeat the purpose of
FECA.
The Board finds that OWCP properly determined that appellant did not require
substantially all of his income to meet ordinary living expenses. OWCP found that, after its review
of appellant’s financial documents of record, he had total current monthly income of $7,497.00
and total monthly expenses of $6,444.14, which left more than $1,052.00 of disposable income
with which to repay the debt. As appellant’s monthly income exceeds his ordinary and necessary
living expenses by more than $50.00, the Board finds that he did not need substantially all of his
income for ordinary and necessary living expenses.
As appellant failed to establish that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery of the overpayment. 17
LEGAL PRECEDENT -- ISSUE 3
A claimant dissatisfied with a decision on his or her claim is entitled, upon timely request,
to a hearing before an OWCP representative. 18 Unless otherwise directed in writing by the
claimant, the hearing representative will mail a notice of the time, place, and method of the oral
15

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide that assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(2) and (3) (September 2018).
16

Id. at § 10.436.

17

Supra note 15. With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases
where OWCP seeks recovery from continuing compensation benefits. A.S., Docket No. 20-1314 (issued February 23,
2021); L.L., Docket No. 19-0097 (issued March 20, 2020); A.B., Docket No. 18-0915 (issued October 24, 2018). As
appellant was not in receipt of continuing wage-loss compensation at the time of OWCP’s final overpayment
determination, the Board does not have jurisdiction over the method of recovery of the overpayment in this case. See
id.; Miguel A. Muniz, 54 ECAB 217 (2002); Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.
18

Supra note 3 at § 8124(b).

6

hearing to the claimant and to any representative at least 30 days before the scheduled hearing
date.19
A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned
only under very limited circumstances. 20 With respect to abandonment of hearing requests,
Chapter 2.1601(g) of OWCP’s procedures21 and section 10.622(f) of its regulations 22 provide in
relevant part that failure of the claimant to appear at the scheduled hearing, failure to request a
postponement, and failure to request in writing within 10 days after the date set for the hearing that
another hearing be scheduled shall constitute abandonment of the request for a hearing. Under
these circumstances, the Branch of Hearings and Review will issue a formal decision finding that
the claimant has abandoned his or her request for a hearing and return the case to the district
office.23
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly determined that appellant abandoned his request for
a prerecoupment hearing.
OWCP’s Branch of Hearings and Review received appellant’s September 11, 2020 request
for a telephonic prerecoupment hearing. In a March 5, 2021 letter, OWCP provided appellant 30
days written notice of the hearing, which was scheduled for April 15, 2021 at 2:45 p.m. EST. It
mailed the March 5, 2021 notice of hearing to appellant’s last known address of record, and it was
not returned as undeliverable. Absent evidence to the contrary, a notice mailed in the ordinary
course of business is presumed to have been received by the intended recipie nt.24 The presumption
is commonly referred to as the “mailbox rule.”25 It arises when the record reflects that the notice
was properly addressed and duly mailed. 26 The current record is devoid of evidence to rebut the
presumption that appellant received OWCP’s March 5, 2021 notice of hearing.
The hearing notice was properly addressed to appellant’s last known address of record.27
Appellant did not call-in as instructed for the April 15, 2021 scheduled telephonic hearing and

19

Supra note 8 at § 10.617(b).

20

R.L., Docket No. 20-0186 (issued September 14, 2020); C.Y., Docket No. 18-0263 (issued September 14, 2018);
Claudia J. Whitten, 52 ECAB 483 (2001).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
22

Supra note 9 at § 10.622(f).

23

Id.

24

C.Y., supra note 20; Kenneth E. Harris, 54 ECAB 502 (2003).

25

Id.

26

Id.

27

Id.; K.F., Docket No. 17-1035 (issued August 24, 2017).

7

there is no indication that he requested postponement of the telephonic hearing. 28 Moreover, he
did not submit a written request within the 10 days after the date set for the telephonic hearing and
request that another telephonic hearing be scheduled. Under the circumstances, OWCP’s hearing
representative properly found that appellant abandoned his telephonic hearing request. 29
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$10,573.82 for the period October 28, 2019 through July 18, 2020 for which he was without fault,
because he concurrently received FECA wage-loss compensation benefits and SSA age-related
retirement benefits without appropriate offset. The Board further finds that OWCP properly
denied waiver of recovery of the overpayment and that OWCP properly determined that appellant
abandoned his request for a prerecoupment hearing.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 2022
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

28

20 C.F.R. § 10.622(c).

29

C.Y., supra note 20; M.V., Docket No. 17-1795 (issued March 1, 2018).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-274
Issued: September 3, 2010

Case Submitted on the Record

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

JURISDICTION
On November 9, 2009 appellant filed a timely appeal from the August 12, 2009 merit
decision of the Office of Workers’ Compensation Programs, which granted an increased
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.
ISSUE
The issue is whether appellant has more than a four percent increased impairment of his
left lower limb or any increased impairment of his right lower limb.
FACTUAL HISTORY
On September 18, 1997 appellant, then a 46-year-old distribution clerk, sustained a back
injury in the performance of duty while jerking on the lower gate of a postal container to open it.
The Office accepted his claim for lumbosacral strain, herniated disc at L5-S1 and spondylosis.
On July 8, 1999 appellant filed a claim alleging that he sustained a bilateral knee injury in
the performance of duty beginning in November 1991 from pushing full all-purpose containers

with bad wheels. He added that his daily routine of sweeping mail, dispatching mail and walking
to find equipment or retrieve mail downstairs aggravated both knees. The Office accepted his
claim for degenerative osteoarthrosis of bilateral knees.1
On May 14, 1999 the Office issued a schedule award for a nine percent impairment of the
right lower limb. On March 9, 2000 it issued a schedule award for an additional 18 percent
impairment of the right lower limb (total 27 percent) and a 20 percent impairment of the left
lower limb. On May 26, 2005 the Office issued a schedule award for an additional four percent
impairment of the right lower limb. On May 21, 2007 it issued a schedule award for an
additional three percent impairment of the right lower limb. Appellant therefore received
schedule awards totaling 34 percent for the right lower limb and 20 percent for the left.
On the prior appeal,2 the Board found that neither the May 26, 2005 nor the May 21,
2007 schedule awards accounted for lower limb impairment attributable to the accepted bilateral
knee condition. The Board remanded the case for a proper review of the evidence.
The Office referred appellant, together with the medical record and a statement of
accepted facts, to Dr. Christopher E. Cenac, a Board-certified orthopedic surgeon, who examined
appellant on June 15, 2009 and reported his findings. Dr. Cenac determined that appellant had a
30 percent impairment of the right lower limb and a 20 percent impairment of the left lower limb
based on the accepted osteoarthrosis. He also found a 12 percent impairment of the whole
person based on spondylolisthesis in the lumbar spine.
On July 16, 2009 an Office medical adviser reviewed Dr. Cenac’s findings and concluded
that appellant had a 31 percent impairment of the right lower limb based on severe osteoarthritis
of the knee and a mild S1 spinal nerve injury. He also determined that appellant had a 24 percent
impairment of the left lower limb based on moderate osteoarthritis of the knee.
On August 12, 2009 the Office issued a schedule award for an additional four percent
impairment of the left lower limb. Because appellant had already received schedule awards
totaling 34 percent for the right lower limb, he was entitled to no further award on the right.
However, because the impairment for his left lower limb had increased from 20 to 24 percent,
the Office paid compensation for the increase.
On appeal, appellant argues that the Office blatantly circumvented the process by
delaying long enough to require use of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2008), “which everybody knew
would change impairment calculations.” He also argues that Dr. Cenac’s report was fraudulently
written.

1

OWCP File No. xxxxxx470 (subsidiary file).

2

Docket No. 08-802 (issued December 8, 2008).

2

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act3 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.4
The Act does not authorize the payment of schedule awards for the permanent
impairment of “the whole person.”5 Payment is authorized only for the permanent impairment of
specified members, organs or functions of the body.
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the regulations.6 Because neither the Act nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back or spine,7 no claimant is
entitled to such an award.8
Amendments to the Act, however, modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member. As
the schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.9
ANALYSIS
Diagnosis-based impairment is the primary method of evaluation for the lower limb.10
Dr. Cenac, a Board-certified orthopedic surgeon and Office referral physician, reviewed the
statement of accepted facts and noted that the Office had accepted osteoarthritis of both knees.
He completed x-ray studies and indicated that appellant had severe arthritis on the right
characterized by a one-millimeter cartilage interval. Table 16-3, page 511 of the A.M.A., Guides
gives a default impairment value of 30 percent for severe primary knee joint arthritis. Following
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.0808.6.a (January 2010).
5

Ernest P. Govednick, 27 ECAB 77 (1975).

6

William Edwin Muir, 27 ECAB 579 (1976).

7

The Act itself specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

8

E.g., Timothy J. McGuire, 34 ECAB 189 (1982).

9

Rozella L. Skinner, 37 ECAB 398 (1986).

10

A.M.A., Guides 497.

3

the adjustment formula on page 521, the Office medical adviser decreased the default value to 28
percent for a moderate problem by functional history characterized by routine use of a single
cane for ambulation.11 No further modification was warranted for physical examination or
clinical studies.
Dr. Cenac reported a 12 percent impairment of the whole person based on
spondylolisthesis in the lumbar spine, but the Act does not authorize schedule awards for
permanent impairment of “the whole person.” The Act does permit an award for impairment to a
lower limb that originates in the spine. Dr. Cenac reported sensory deficits in the S1 distribution
on the right. The Office medical adviser characterized the deficits as mild, but even if they could
be characterized as severe, they would represent no more than a four percent impairment of the
right lower limb.12
Multiple lower limb impairments are combined using the Combined Values Chart on
page 604 of the A.M.A., Guides.13 Appellant’s 28 percent impairment for severe osteoarthritis in
the right knee combines with a maximum 4 percent impairment for sensory deficits in the S1
nerve root to give a 31 percent total impairment of the right lower limb, which is what the Office
medical adviser reported. Because he previously received schedule awards totaling 34 percent,
he has no increased impairment on the right. The Board will therefore affirm the Office’s
August 12, 2009 decision on the issue of right lower limb impairment.
On the left Dr. Cenac indicated that appellant had moderate arthritis in the knee
characterized by a two-millimeter cartilage interval. Table 16-3, page 511 gives a default
impairment value of 20 percent for moderate primary knee joint arthritis. Following the
adjustment formula on page 521, the Office medical adviser increased the default value to 24 for
a severe problem on physical examination and a severe problem on clinical studies. Because
Dr. Cenac used x-ray studies as the key factor to identify a Class 2 impairment, they may not be
used again as a nonkey factor to modify the grade within that class.14 The default impairment
rating should be increased to 22 percent, assuming appellant’s physical examination can be
regarded as having shown a “severe” problem.
Because appellant previously received a schedule award for a 20 percent impairment of
the left lower limb, he has an increased impairment of 2 percent, which is less than the Office
awarded. The Board will nonetheless affirm the Office’s August 12, 2009 decision on the issue
of left lower limb impairment on the grounds that the evidence does not support more than a four
percent increased impairment.
Appellant argues that the Office was blatant in circumventing the process and delaying
matters until the sixth edition of the A.M.A., Guides became effective. The implication is that
11

Id. at 516 (Table 16-6).

12

Christopher R. Brigham, M.D., Rating Spinal Nerve Extremity Impairment Using the Sixth Edition, The Guides
Newsletter (A.M.A., Chicago, Ill.), Jul./Aug. 2009 (Proposed Table 2).
13

Id. at 529.

14

Id. at 521 (Method, 2.b).

4

the Office knew impairment calculations would be significantly lower in the sixth edition. First,
appellant offered no proof that the Office acted with nefarious intent in adjudicating his claim
and second, with the exception of spine fusion cases, impairment values overall in the sixth
edition are similar to the values assigned in the fourth and fifth editions. The full impact of
changes in ratings will not be available until a large number of cases have been rated or
comparative studies are performed where cases are rated by both the fifth and sixth editions.15
As for the charge that Dr. Cenac committed fraud, appellant again submitted no proof.
Because diagnosis-based impairment is the method of choice for calculating impairment,
appellant should not assume fraudulent intent because Dr. Cenac did not use a goniometer to
measure range of motion or spent less time with him than other physicians. Because diagnosisbased sections are applicable, the Office may not use range of motion to determine appellant’s
lower limb impairment.16 Range of motion is only one of a number of findings on physical
examination that can be used to determine whether appellant’s problem can be generally
characterized as mild, moderate or severe. The Office medical adviser characterized Dr. Cenac’s
findings as severe, which was to appellant’s benefit because it prevented a slight reduction of his
rating for right knee arthritis and at the same time increased his rating slightly for left knee
arthritis.
CONCLUSION
The Board finds that appellant has no increased impairment of his right lower limb and
no more than a four percent increased impairment of his left lower limb.

15

“Rerating examples provided in the [s]ixth [e]dition for diagnosis-based impairments by criteria provided in the
[f]ifth [e]dition reveals there is minimal change in impairment values, with the exception of spine fusion cases.”
Brigham et al., A.M.A., Guides sixth edition: Perceptions, Myths and Insights (Brigham and Associates, 2008).
16

A.M.A., Guides at 543.

5

ORDER
IT IS HEREBY ORDERED THAT the August 12, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANPORTATION SECURITY
ADMINISTRATION, San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-420
Issued: October 5, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 28, 2008 appellant, through counsel, filed a timely appeal of the Office of
Workers’ Compensation Programs’ October 30, 2008 merit decision, finding that he received an
overpayment of compensation and that he was at fault in its creation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $24,018.08 because he received compensation for total disability from January 1,
2005 through February 29, 2008 while working intermittently; and (2) whether the Office
properly found that he was at fault in the creation of the overpayment and thus not entitled to
waiver of the recovery of the overpayment.

FACTUAL HISTORY
On February 11, 2003 appellant, then a 43-year-old transportation security screener, filed
a traumatic injury claim alleging that on that date he injured his back after lifting a large bag.
The Office accepted the claim for lumbar strain.
By letter dated August 2, 2004, the Office advised appellant that he was being placed on
the periodic rolls and noted his responsibility to return to work.
Appellant submitted completed EN1032-0494 forms for entitlement to compensation
dated October 10, 2005, December 5, 2006 and July 27, 2007.1 He noted that he worked for
Computer Merchant Ltd. for the period July 29 to August 1, 2005, for Impact Solutions for the
period September 5, 2006 to March 5, 2007 and Skill Storm for the period April 7, 2007 to
February 8, 2008. Appellant also submitted W2 forms which indicated he earned $2,188.22
during 2005; he earned $282.09 for the Computer Merchant, Ltd. during 2005; he earned
$4,292.25 during 2006 for Impact Solutions; he earned $2,152.15 during 2007 for Navy
Exchange Service Command; and he earned $20,109.59 during 2007 for Skillstorm, Inc.
On August 26, 2008 the Office notified appellant of its preliminary determination that he
received an overpayment of $24,018.08 for the period January 1, 2005 to February 29, 2008
because he returned to intermittent employment during the period January 1, 2005 through
February 29, 2008 but continued to receive compensation for total disability. It calculated that
he had gross earnings of $32,504.24 which was divided by 165 weeks to find an average weekly
salary of $197.00. Next, the Office stated that appellant was paid $75,082.55 when he was only
entitled to compensation in the amount of $51,064.40 which resulted in an overpayment of
$24,018.08. It informed appellant of its preliminary determination that he was at fault in the
creation of the overpayment because he accepted a payment that he knew or should have known
to be incorrect. The Office requested that he complete an overpayment recovery questionnaire.
It advised appellant that, within 30 days of the letter, he could request a telephone conference, a
final decision based on the written evidence or a prerecoupment hearing.
In a letter dated September 26, 2008, appellant requested an extension on the
overpayment issue. He noted that he had informed the Office when he had returned to work and
believed that his actual earnings had been deducted from the direct deposits.
By decision dated October 30, 2008, the Office finalized its finding that appellant
received a $24,018.08 overpayment because he received compensation for total disability after
he resumed intermittent employment. It found that he was at fault in the creation of the
overpayment and therefore not entitled to wavier of the recovery.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act2 provide that the United
States shall pay compensation as specified for the disability or death of an employee resulting
1

Appellant did not indicate the date he signed the July 27, 2007 form.

2

5 U.S.C. §§ 8106-8193, 8102(a).

2

from personal injury sustained while in the performance of his duty. A claimant, however, is not
entitled to receive temporary total disability and actual earnings for the same period.3 Office
procedures provide that an overpayment in compensation is created when a claimant returns to
work but continues to receive wage-loss compensation.4
ANALYSIS -- ISSUE 1
The Office determined that appellant received an overpayment of compensation in the
amount of $24,018.08 for the period January 1, 2005 to February 29, 2008 because he received
compensation for total disability after he returned to intermittent employment. In order to
confirm the continuing compensation payments, the record should establish the specific
payments that were made, the date issued and the compensation period covered by the specific
payments. The Board finds that the record is devoid of any evidence that compensation was paid
for the period in question. The Office’s statements and calculations are not enough; proof of
payment must be in the record. Otherwise, the Board does not have sufficient evidence to review
whether the Office properly determined the amount of the overpayment. There is no evidence
such as a computer printout establishing the payment of compensation from January 1, 2005 to
February 29, 2008. Accordingly, the Office has failed to establish that an overpayment occurred
in this case.5
CONCLUSION
The Board finds that the Office failed to establish the existence of an overpayment.6

3

Id. at § 8116(a).

4

Danny E. Haley, 56 ECAB 393, 400 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).
5

See F.A., Docket No. 07-1520 (issued October 23, 2007) (the Board found that the Office failed to establish that
an overpayment existed as the record was devoid of any evidence that the specific payments were made); J.C.,
Docket No. 06-1229 (issued September 14, 2006) (the Board found that the Office failed to establish an
overpayment when there was no evidence with respect to individual payments issued during the relevant time
period); Salvator A. Schembari, Docket No. 05-1309 (issued December 6, 2005) (the Board found that the Office
failed to establish that an overpayment existed as the record was devoid of any evidence that specific payments were
made, the date issued and the period covered by the specific payments).
6

In view of the Board’s disposition of the first issue, the issue of fault is moot.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 30, 2008 is reversed.
Issued: October 5, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1917
Issued: February 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 19, 2013 appellant filed a timely appeal from a July 30, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an employment-related hearing loss.
FACTUAL HISTORY
On April 26, 2013 appellant, then a 59-year-old aircraft production controller, filed an
occupational disease or illness claim (Form CA-2) alleging that he sustained hearing loss as a
result of his federal employment. He stated that he was exposed to noise from rivet guns,

1

5 U.S.C. § 8101 et seq.

hammers, aircraft engines and other equipment. The reverse of the claim form indicated that
appellant was last exposed to noise on April 9, 2013 and currently worked in an office area.
The evidence submitted included a job description for an aircraft production controller,
which did not discuss noise exposure. The job description stated that the employee may work in
an office setting part of the time and may be required to visit production areas with exposure to
fumes from chemicals. On May 9, 2013 appellant submitted audiograms performed on
December 6, 2011 and April 3, 2013. The April 3, 2013 audiogram results are reported on a
Department of Defense form and the December 6, 2011 audiographic results were from “Hearing
Associates, Inc.” Appellant also submitted an Occupational Safety and Health Authority Form
301 (incident report) dated April 9, 2013. On the form, an employing establishment physician,
Dr. Marvin Taylor, diagnosed hearing loss and stated, “recommend further testing.”
In a letter dated May 10, 2013, OWCP requested that appellant complete a questionnaire
regarding his claim for compensation and respond within 30 days. Appellant was asked to
provide his employment history, with a description of the sources of any noise exposure and
information as to any noise protection devices. OWCP also issued a May 10, 2013 letter to the
employing establishment requesting additional information as to noise exposure.
By decision dated July 30, 2013, OWCP denied the claim for compensation. It found that
the factual and medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing 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 injury was sustained in the performance of duty as alleged
and that any disability or specific condition for which compensation is claimed is causally related
to the employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4 Appellant has the burden of establishing by the
weight of the reliable, probative and substantial evidence that his hearing loss condition was
causally related to noise exposure in his federal employment.5 Neither the condition becoming
apparent during a period of employment nor the belief of the employee that the hearing loss was
2

5 U.S.C. §§ 8101-8193.

3

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

Stanley K. Takahaski, 35 ECAB 1065 (1984).

2

causally related to noise exposure in federal employment, is sufficient to establish causal
relationship.6
ANALYSIS
Appellant filed a claim for an employment-related hearing loss. As noted, his burden
includes the submission of both factual and medical evidence. As to the factual element of the
claim, appellant alleged that he was exposed to noise while working as an aircraft production
controller. The only evidence submitted to the record was a job description that did not discuss
his noise exposure. The job description listed that some job duties would be performed in an
office area, with some visits to production areas. The purpose of the May 10, 2013 letter to
appellant was to provide him an opportunity to clarify the nature and extent of his occupational
noise exposure. Appellant was provided an opportunity to describe in more detail the sources of
noise exposure, the period of exposure and other relevant detail. Based on his description, the
employing establishment may submit evidence confirming or clarifying the nature and extent of
the noise exposure and the factual background for the claim may be established.7 Once the
relevant factual background is established, the medical evidence is considered on the issue of
causal relationship between any hearing loss and the established noise exposure in federal
employment.
Appellant did not meet his burden of proof in this case. He did not submit sufficient
factual evidence with respect to his alleged noise exposure or probative medical evidence from a
physician under FECA with respect to an employment-related hearing loss.8
The Board notes that appellant may submit new and relevant evidence with respect to his
employment-related noise loss exposure to OWCP.
CONCLUSION
The Board finds that appellant has not established an employment-related hearing loss.

6

See John W. Butler, 39 ECAB 852, 858 (1988).

7

See M.H., Docket No. 12-733 (issued September 5, 2012) (appellant had submitted a detailed factual statement
regarding noise exposure and OWCP should have secured available information from the employing establishment).
8

See 5 U.S.C. § 8101(2). An audiologist is not a physician under FECA. J.H., Docket No. 12-366 (issued
July 19, 2012). An audiogram prepared by an audiologist must be certified by a physician before it can be used to
determine hearing loss and only a physician can provide a probative medical opinion on causal relationship between
hearing loss and federal employment. See Joshua A. Holmes, 42 ECAB 231 (1990).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 30, 2013 is affirmed.
Issued: February 12, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4