United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Granite City, IL, Employer
__________________________________________

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

Docket No. 07-547
Issued: June 1, 2007

Case Submitted on the Record

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

JURISDICTION
On December 20, 2006 appellant filed a timely appeal from the November 14, 2006
decision of the Office of Workers’ Compensation Programs terminating her wage-loss and
medical benefits. Pursuant to 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 the Office met its burden of proof to terminate appellant’s
compensation for wage-loss and medical benefits effective November 26, 2006.
FACTUAL HISTORY
On March 15, 2004 appellant, then a 39-year-old postal clerk, filed a traumatic injury
claim alleging that she hurt her back and right leg when she picked up a heavy box on
January 20, 2004.1 On January 29, 2004 a magnetic resonance imaging (MRI) scan conducted
1

The Board notes that this claim was initially filed as a recurrence of file number 102018220, which was
accepted for a dorsal strain occurring on January 3, 2003. The Office denied the recurrence claim on March 8, 2004.

on the lumbar spine revealed no protrusion, herniation or degeneration. Dr. Randall Rogalsky, a
Board-certified orthopedic surgeon, removed appellant from work on February 2, 2004.2 On
April 19, 2004 the Office accepted appellant’s claim for lumbar radiculopathy. The Office also
assigned, a registered nurse, Rita Darrough, to help in the recovery process.
On April 26, 2004 Dr. Rogalsky diagnosed pain in appellant’s low back and right buttock
and prescribed epidural blocks and physical therapy. In the final physical therapy report, dated
July 21, 2004, it was noted that appellant had an excellent response to the exercises and had no
remaining complaints of back pain. On July 29, 2004 Ms. Darrough reported that appellant had
completed the series of lumbar epidural injections with Dr. Thomas Brummett, a Board-certified
anesthesiologist. She stated, however, that appellant had cancelled a scheduled follow-up
appointment with Dr. Rogalsky on July 26, 2004 because she was having problems with her back
and wanted another injection from Dr. Brummett before meeting with him. In a report dated
August 27, 2004, Ms. Darrough stated that appellant had made an appointment with
Dr. Brummett for August 18, 2004, but that he had refused to see her because the visit was not
approved. She also reported that Dr. Rogalsky had refused to see appellant because he had not
received payment for treatment rendered for an unrelated workers’ compensation claim.
Ms. Darrough noted that appellant was off work without medical rationale and could not be
released to work unless she could be seen by Dr. Rogalsky.
On September 22, 2004 the Office referred appellant to Dr. Donald Brancato, a Boardcertified orthopedic surgeon, for a second opinion examination. Dr. Brancato examined
appellant on October 7, 2004 and found that her subjective complaints of pain were not linked to
any objective abnormalities. He noted that she had undergone physical therapy, but no work
hardening rehabilitation, which would prepare her to return to regular activities. Dr. Brancato
found no specific neural abnormalities other than a slightly decreased pinprick sensation on the
mid-calf of the right leg. He opined that appellant’s injury was based on a stretched muscle
because she felt pain over the sacroiliac joint, without bending or stretching, with the posterior
extension of the right leg. Dr. Brancato stated that there might be some nerve root irritation as a
result of the stretched muscle, but that there were no objective findings to support any of her
complaints. He recommended work hardening rehabilitation, but did not provide any work
restrictions because he noted no specific limitations physically or functionally.
By letter dated October 27, 2004, the Office informed appellant that an appointment with
an impartial medical examiner would be scheduled to resolve a conflict in medical opinion
between Dr. Rogalsky, who had not released her to work, and Dr. Brancato, the second opinion
specialist, who found no objective evidence of continued disability. On November 23, 2004
Dr. Lukasz Curylo, a Board-certified orthopedic surgeon, examined appellant and conducted a
review of the medical history related to her employment injury.3 On December 2, 2004 he
opined that the causal relationship between appellant’s current condition and the employment
injury was “questionable.” Based on MRI scans of her lumbar spine, Dr. Curylo stated that she
2

The record indicates that appellant may have been off work from the time of the accident on January 20, 2004.

3

The Office asked Dr. Curylo to determine whether appellant’s current condition could be linked to either her
January 20, 2004 work injury or her previous, January 3, 2003 work injury. As this case involves only the accepted
injury of lumbar radiculopathy, only the evidence related to that condition will be discussed.

2

“obviously has no significant lumbar spine pathology.” Dr. Curylo suspected that she might
have thoracic herniation related to a 2003 employment injury, but could not make this
determination without an MRI scan of her thoracic spine. He stated that, if the MRI scan came
back negative, he would find that appellant’s condition was “chronic lumbar sprain with
significant symptomatic magnification.”
On June 23, 2005 the Office sent a request to both appellant and Dr. Rogalsky asking for
an MRI scan of the thoracic spine. Dr. Rogalsky informed the Office on July 8, 2005 that he was
no longer appellant’s attending physician. Appellant did not respond. On November 18, 2005
the Office informed appellant of her need to provide updated medical information to justify her
claim of total disability and her responsibility for providing the requested MRI scan. On the
same date, it informed Dr. Curylo that it had been unable to obtain an MRI scan of appellant’s
thoracic spine and asked for a supplemental report explaining his opinion of whether appellant
could return to work, given the lack of objective evidence of a herniated disc in her thoracic
spine. Dr. Curylo did not respond to this request. Appellant contacted the Office on
December 6, 2005 and stated that she had been unable to find a doctor to treat her back or order
the MRI scan without a release from Dr. Rogalsky.
On March 3, 2006 the Office informed appellant that she had been referred to another
impartial medical examiner to resolve the conflict between Dr. Rogalsky and Dr. Brancato. On
March 29, 2006 Dr. Marvin Mishkin, a Board-certified orthopedic surgeon, examined appellant
and conducted a thorough evaluation of her medical history. On April 4, 2006 he reported that
appellant had complained of intermittent pain in the upper back and neck that included back
spasms and a “catching sensation” and, occasionally, pain down her back to her buttocks.
Appellant did not complain of pain in either leg. Dr. Mishkin’s examination of her lumbosacral
spine and legs revealed no sensory changes, motor weakness, pain, or diminished range of
motion when standing, sitting or lying supine. He found that deep tendon reflexes were equal
and active at both knees and both ankles and that the leg raising test was negative. Dr. Mishkin
noted that appellant changed positions easily and walked without a limp. He took x-rays of her
lumbar, thoracic and cervical spine, which were normal in spacing and alignment with the
exception of some mild degenerative changes in the cervical spine at C5-6 and C6-7.
Dr. Mishkin diagnosed subjective complaints of pain that were not supported by objective
evidence of injury. He opined that there was no evidence of injury related to the employment
injury of January 20, 2004. Dr. Mishkin noted that appellant’s subjective complaints were vague
and nonspecific and did not correlate with the lack of objective clinical or diagnostic findings.
He found that it would be advisable to obtain an MRI scan of appellant’s thoracic spine as it had
been recommended by two other physicians, but stated that, in the absence of such a study,
appellant was still capable of returning to her regular occupational duties without restrictions.
On October 13, 2006 the Office issued a notice of proposed termination of appellant’s
medical and wage-loss benefits. Based on the report of Dr. Mishkin, it found that appellant had
no residuals or disability from work arising from her accepted lumbar radiculopathy.
On October 25, 2006 appellant responded to the notice of proposed termination with a
letter alleging that her inability to properly document her condition, particularly her failure to
procure an MRI scan of her thoracic spine, was the result of the Office’s mismanagement of her
case.

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By decision dated November 14, 2006, the Office terminated appellant’s medical and
wage-loss benefits effective November 26, 2006. The Office found that appellant had not
presented any evidence or arguments sufficient to overcome the opinion of the impartial medical
examiner that she was able to return to work without restrictions regardless of whether a thoracic
MRI scan was conducted.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 The Office may not terminate compensation without
establishing that disability has ceased or that it is no longer related to the employment injury.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.6
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between a physician making an examination for the United States and the physician of the
employee, the Secretary must appoint a third physician to make an examination.7 Likewise, the
implementing regulation states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser or consultant, the Office must appoint a third physician to make an examination.
This is called a referee examination and the Office is required to select a physician who is
qualified in the appropriate specialty and who has had no prior connection with the case.8 It is
well established that, when a case is referred to an impartial medical specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on
proper factual and medical background, must be given special weight.9
In a situation where the Office secures an opinion from an impartial medical examiner for
the purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.10 If the
impartial medical specialist is unable to clarify or elaborate on his original report or if his
supplemental report is also vague, speculative or lacking in rationale, the Office must submit the
4

Elaine Sneed, 56 ECAB ___ (Docket No. 04-2039, issued March 7, 2005).

5

Mary A. Lowe, 52 ECAB 223, 224 (2001).

6

James F. Weikel, 54 ECAB 690 (2003).

7

5 U.S.C. §§ 8101-8193, 8123(a).

8

20 C.F.R. § 10.321.

9

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

10

Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

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case record and a detailed statement of accepted facts to a second impartial specialist for the
purpose of obtaining his rationalized medical opinion on the issue.11
ANALYSIS
The Office accepted appellant’s claim of traumatic injury on January 20, 2004 for lumbar
radiculopathy. Appellant’s treating physician, Dr. Rogalsky, a Board-certified orthopedic
surgeon, removed her from work on February 2, 2004 but did not release her to return to work
before terminating her as a patient in August 2004. Second opinion physician, Dr. Brancato, a
Board-certified orthopedic surgeon, found that there was no objective evidence to support any of
appellant’s complaints of pain. He recommended work-hardening physical therapy, but provided
no work restrictions, noting that she had no physical or functional limitations.
The Office properly found a conflict of the medical evidence regarding appellant’s
disability for work. Appellant was referred to an impartial medical examiner, Dr. Curylo, a
Board-certified orthopedic surgeon, who found on December 2, 2004 that the causal relationship
between appellant’s condition and her accepted employment injury was questionable. However,
he declined to make a final determination because he did not have diagnostic evidence of the
condition of appellant’s thoracic spine. On November 18, 2005 the Office properly requested
that Dr. Curylo supplement his previous report with an opinion about appellant’s ability to return
to work in the absence of objective evidence of thoracic injury. Dr. Curylo did not respond.
Because the first impartial medical examiner, Dr. Curylo, did not respond to the Office’s
request for a supplemental report, the Board finds that the Office properly referred appellant to
another impartial specialist to resolve the conflict between Dr. Rogalsky and Dr. Brancato. On
March 29, 2006 Dr. Mishkin, a Board-certified orthopedic surgeon, conducted a thorough
physical examination of appellant and made a review of her medical history. He found no
sensory changes, numbness, pain, weakness or diminished range of motion in her legs or lumbar
spine. The x-rays that Dr. Mishkin took revealed mild degenerative changes in appellant’s
cervical spine, but showed normal spacing and alignment in the lumbar and thoracic spine.
Dr. Mishkin found that there was no objective evidence to support appellant’s vague and
nonspecific complaints of pain. He stated that there was no physical or diagnostic evidence of
injury or residual symptoms related to the accepted employment injury of January 20, 2004.
Dr. Mishkin opined that work-hardening physical therapy would be beneficial in returning
appellant to work, but stated that she was capable of returning to work without restriction. The
Board finds that the opinion of Dr. Mishkin is entitled to the special weight of the medical
evidence because it is well rationalized and based on a thorough physical examination and
review of the medical history.
On the basis of Dr. Mishkin’s opinion, the Office proposed termination of appellant’s
compensation under the Act. The Board finds that the Office properly relied on the medical
opinion of Dr. Mishkin that appellant had no residual or disability related to her accepted
January 20, 2004 lumbar strain. Dr. Mishkin’s report constitutes the special weight of the

11

Harold Travis, 30 ECAB 1071, 1078 (1979).

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medical evidence afforded an impartial medical examiner. Thus, the Office met its burden of
proof to terminate appellant’s compensation benefits for wage-loss and medical benefits.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation for wage-loss and medical benefits effective November 26, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 14, 2006 is affirmed.
Issued: June 1, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Richmond, VA,
Employer
__________________________________________

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

Docket No. 18-0224
Issued: May 9, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 10, 2017 appellant, through counsel, filed a timely appeal from an
August 28, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established permanent impairment of her bilateral upper
extremities for schedule award purposes.
FACTUAL HISTORY
On September 26, 2000 appellant, then a 42-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she sustained tendinitis causally related to factors of her
federal employment. OWCP accepted the claim for bilateral tendinitis of the elbows and bilateral
other synovitis and tenosynovitis. Appellant performed limited-duty employment beginning
September 28, 2000.
By decision dated September 15, 2014, OWCP denied appellant’s request to expand
acceptance of her claim to include carpal tunnel syndrome. It found that the medical evidence of
record failed to show that the acceptance of her claim should be expanded to include a
consequential injury of carpal tunnel syndrome.
Appellant, on September 14, 2015, requested reconsideration of the September 15, 2014
decision.
On October 31, 2015 Dr. Michael Sheehan, who specializes in family medicine, indicated
that appellant had reached maximum medical improvement.
On March 1, 2016 appellant filed a claim for a schedule award (Form CA-7). OWCP, by
letter dated March 2, 2016, requested that she submit an impairment evaluation from her attending
physician addressing the extent of any permanent impairment due to her work injury in accordance
with the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).3 It advised that it had accepted appellant’s claim for other synovitis
and tenosynovitis, bilateral. Appellant did not respond within the time allotted.
By decision dated April 13, 2016, OWCP denied appellant’s schedule award claim. It
noted that she had not responded to its March 2, 2016 request that she submit evidence supporting
that she had a permanent impairment warranting a schedule award.
Appellant, through counsel, on April 22, 2016 requested a telephone hearing before an
OWCP hearing representative of the April 13, 2016 schedule award denial.
OWCP, by decision dated May 24, 2016, denied modification of its September 15, 2014
decision denying appellant’s request to expand the acceptance of her claim to include carpal tunnel
syndrome. It found that the medical evidence of record was insufficient to show that she sustained
carpal tunnel syndrome due to her accepted work injury.

3

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

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At the telephone hearing, held on December 7, 2016, counsel related that she was
submitting an impairment evaluation from Dr. Robert W. Macht, a surgeon.
In a December 6, 2016 impairment evaluation, Dr. Macht discussed appellant’s complaints
of pain and weakness of the hands and wrists and triggering of the thumbs bilaterally. He
diagnosed bilateral synovitis and tenosynovitis with bilateral thumb triggering and bilateral carpal
tunnel syndrome. Referencing the A.M.A., Guides, Dr. Macht found two percent impairment of
each upper extremity due to triggering of the thumbs according to Table 15-2 on page 392. He
further found one percent impairment of each upper extremity due to tendinitis of the wrists using
Table 15-3 on page 395 and six percent impairment of each upper extremity due to mild carpal
tunnel syndrome using Table 15-23 on page 449. Dr. Macht combined the impairment ratings to
find nine percent permanent impairment of each upper extremity.
By decision dated January 25, 2017, OWCP’s hearing representative affirmed the April 13,
2016 decision. She found that Dr. Macht did not rate the extent of any permanent impairment due
to the accepted condition of elbow tendinitis, but instead provided a rating for the conditions of
trigger finger and carpal tunnel syndrome, which were not accepted as employment related.
Dr. Macht, in a report dated February 24, 2017, attributed the diagnosed conditions of
bilateral carpal tunnel syndrome and triggering of the thumbs to factors of appellant’s federal
employment. He further asserted that the conditions were “part of the normal progression of
tenosynovitis.” Considering only the accepted condition of tenosynovitis of the elbows, wrists,
and hands, Dr. Macht found one percent permanent impairment of each upper extremity for wrist
tenosynovitis using Table 15-3 on page 395 and one percent impairment of each upper extremity
due to elbow tenosynovitis using Table 15-4 on page 398. He combined the impairment ratings to
find two percent permanent impairment of each upper extremity.
On April 6, 2017 appellant, through counsel, requested reconsideration of the January 25,
2017 OWCP representative’s decision.
An OWCP medical adviser reviewed the evidence on July 7, 2017 and found that it was
insufficient to determine the extent of any permanent impairment of the upper extremities as
Dr. Macht did not provide range of motion (ROM) measurements of the elbows. He opined that
appellant had one percent impairment of each upper extremity due to elbow tendinitis using Table
15-4 of the A.M.A., Guides.
OWCP, by letter dated July 27, 2017, requested that appellant submit a supplemental report
from Dr. Macht providing three independent measurements of ROM to evaluate the extent of any
permanent impairment due to her bilateral elbow tendinitis. It afforded her 30 days to submit the
requested evidence. Appellant did not respond within the time allotted.
By decision dated August 28, 2017, OWCP denied modification of its January 25, 2017
decision. It found that appellant failed to submit a supplemental report from her physician
containing measurements of each elbow as requested. OWCP thus determined that she had not
submitted evidence sufficient to establish a permanent impairment of the upper extremities.
On appeal counsel asserts that OWCP should have used the diagnosis-based impairment
(DBI) method to rate her permanent impairment.
3

LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.4 FECA, however,
does not specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its
implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.5 As of May 1, 2009, schedule awards are determined in accordance
with the sixth edition of the A.M.A., Guides (2009).6
The sixth edition requires identifying the impairment Class of Diagnosis (CDX) condition,
which is then adjusted by grade modifiers based on Functional History (GMFH), Physical
Examination (GMPE), and Clinical Studies (GMCS).7 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable.8 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
measured and added.9 Adjustments for functional history may be made if the evaluator determines
that the resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.10
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology basis for rating of upper extremity impairments.11 Regarding the
application of ROM or DBI impairment methodologies in rating permanent impairment of the
upper extremities, FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
4

5 U.S.C. § 8107(c).

5

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (March 2017).
7

A.M.A., Guides 401-19.

8

Id. at 461.

9

Id. at 473.

10

Id. at 474.

11

FECA Bulletin No. 17-06 (issued May 8, 2017).

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determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)12
The Bulletin further advises:
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available evidence.
“Upon receipt of such a report, and if the impairment evaluation was provided from
the claimant’s physician, the CE should write to the claimant advising of the
medical evidence necessary to complete the impairment assessment and provide 30
days for submission. Any evidence received in response should then be routed back
to the DMA for a final determination. Should no evidence be received within 30
days of the date of the CE’s letter, the CE should proceed with a referral for a second
opinion medical evaluation to obtain the medical evidence necessary to complete
the rating. After receipt of the second opinion physician’s evaluation, the CE
should route that report to the DMA for a final determination.”13
ANALYSIS
OWCP accepted that appellant sustained bilateral elbow tendinitis and bilateral
tenosynovitis and other synovitis causally related to factors of her federal employment.
Dr. Sheehan, her attending physician, found that she had obtained maximum medical improvement
on October 31, 2015.
Appellant, on March 1, 2016, filed a claim for a schedule award. In a December 6, 2016
impairment evaluation, Dr. Macht found that she had one percent permanent impairment of each
upper extremity due to wrist tendinitis, two percent permanent impairment of each upper extremity
due to thumb triggering, and six percent permanent impairment of each upper extremity due to
carpal tunnel syndrome. OWCP, however, has not accepted the rated conditions as employment
related. Its procedures provide that impairment ratings for schedule awards include those
conditions accepted by OWCP as work related, and any preexisting permanent impairment of the

12

Id.

13

Id.

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same member or function.14 Thus, Dr. Macht’s December 6, 2016 impairment evaluation is
insufficient to support entitlement to a schedule award.15
On February 24, 2017 Dr. Macht found that appellant had one percent permanent
impairment of each upper extremity due to wrist tenosynovitis using Table 15-3 on page 395 and
one percent impairment of each upper extremity due to elbow tenosynovitis using Table 15-4 on
page 398. An OWCP medical adviser reviewed Dr. Macht’s report on July 7, 2017 and determined
that appellant had one percent permanent impairment of each upper extremity due to elbow
tendinitis, noting that was the only impairment rating resulting from the accepted condition of
bilateral elbow tendinitis. He found that the evidence was insufficient to determine the extent of
any permanent impairment of the upper extremities due to reduced motion as Dr. Macht did not
provide ROM measurements.
In accordance with FECA Bulletin No. 17-06, OWCP requested that appellant provide a
supplemental report from Dr. Macht within 30 days containing ROM measurements in accordance
with the procedures set forth in the A.M.A., Guides. Appellant did not respond to OWCP’s request
and, on August 28, 2017, OWCP denied her claim as she had not submitted a report providing
ROM measurements of her elbows. As discussed, however, FECA Bulletin No. 17-06 provides
that if medical evidence sufficient to make a rating based on ROM is not received within 30 days
of the request, OWCP should refer the claimant for a second opinion examination to obtain the
necessary medical evidence.16 The Board will, therefore, remand the case for OWCP to refer
appellant for a second opinion examination to obtain the evidence necessary to complete the
rating.17 Additionally, OWCP initially accepted the claim for bilateral elbow tendinitis. However,
in its March 2, 2016 schedule award development letter, it indicated that it had it had accepted the
claim for bilateral other synovitis and tenosynovitis. On remand, OWCP should clarify the
accepted conditions. Following any necessary further development, it shall issue a de novo
decision with regard to appellant’s schedule award claim.
CONCLUSION
The Board finds that the case is not in posture for decision.

14
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(d) (March 2017).
15

See F.E., Docket No. 17-0584 (issued December 18, 2017).

16

See supra note 10.

17

See generally C.J., Docket No. 17-1570 (issued February 9, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the August 28, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: May 9, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.Y., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Drakesboro, KY,
Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1558
Issued: May 9, 2014

Case Submitted on the Record

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

JURISDICTION
On June 18, 2013 appellant, through his attorney, filed a timely appeal from an April 8,
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’s claim for a work-related hearing loss is barred by the
applicable time limitation provisions of FECA.
On appeal, appellant, through counsel, contends that the July 19, 2013 report of the
audiologist for the employing establishment should be stricken from the record. He also
contends that his claim was timely filed as he did not know that his hearing loss was related to

1

5 U.S.C. § 8122(a).

his federal employment until he reviewed the medical report of his otolaryngologist. Finally,
appellant contends that OWCP had actual knowledge of his hearing loss.
FACTUAL HISTORY
On August 8, 2012 appellant, then a 65-year-old former pipefitter (B-maker-AS), filed an
occupational disease claim alleging that he suffered from a hearing loss as a result of his federal
employment. He contended that he first became aware of his hearing loss on January 1, 1997
and related it to his federal employment on June 25, 2012 when he reviewed a medical report by
Dr. Uday Dave, a Board-certified otolaryngologist. The employing establishment controverted
the claim and argued that the claim was untimely filed. It noted that appellant’s date of last
exposure was May 2, 1989 and that he retired effective June 2, 1989. The employing
establishment advised that he was not in a hearing conservation program.
By decision dated September 21, 2012, OWCP denied appellant’s claim as it was not
timely filed. It found that he was aware or reasonably should have been aware of an
employment-related hearing loss on January 1, 1997.
On September 24, 2012 appellant submitted a May 17, 2012 report by Dr. Dave, wherein
he assessed appellant with chronic bilateral sensorineural hearing loss, not controlled. Dr. Dave
noted that appellant complained of difficulty hearing for the past 10 years. In discussing the
history of appellant’s illness, he briefly addressed appellant’s work at the employing
establishment. In a July 24, 2012 report, Dr. Dave indicated that he looked at appellant’s
audiological evaluation dated May 17, 2012 and calculated the hearing loss for binaural hearing
at 22.8 percent.
Appellant submitted a statement on September 24, 2012 wherein he indicated that he
worked for the employing establishment, where he was exposed to loud noises on a daily basis
that were produced by the turbines, large pumps, large fans and hammering. He indicated that he
worked as a pipefitter from 1976 to 1978, 1981, 1982, 1984 and 1989. Appellant stated that,
while he first noticed some hearing loss in approximately 1997, he did not learn that his hearing
loss was related to his employment until June 25, 2012 when he reviewed Dr. Dave’s report.
By letter dated October 3, 2012, appellant, through counsel, requested an oral hearing
before an OWCP hearing representative.
In an October 23, 2012 report, Dr. Whitney R. Mauldin, a Board-certified audiologist for
the employing establishment, reviewed appellant’s employment history and noise exposure. He
contended that appellant’s sole purpose for filing this claim is to knowingly and fraudulently
obtain compensation for a hearing loss that he knew existed prior to his federal employment.
Dr. Mauldin noted that appellant had no federal employment for the past 23 years. He stated that
appellant’s initial employment examination in October 14, 1976 showed mild-to-moderate
bilateral hearing loss in both ears, that upon rehire in 1989, after intermittent federal employment
from August 31, 1977 to July 15, 1985 and no federal employment for four years from July 15,
1985 to March 28, 1989, his reemployment hearing examination indicated decreased thresholds
compared to his 1976 examination indicating that his nonfederal employment had exacerbated
his hearing loss. Dr. Mauldin indicated that, while working for the employing establishment,

2

appellant was provided hearing protection and was not exposed to standard threshold shift of 10
decibels or greater at 2,000, 3,000 and 4,000 frequencies, so the employing establishment would
not have had any actual knowledge of the work relatedness of the hearing loss. He also disputed
appellant’s contention that he was not aware of the relationship of his hearing loss and its
relation to his federal employment until 2012. Dr. Mauldin argued that audiological tests
conducted on appellant when he was first hired already showed a hearing loss and that
subsequent tests by the employing establishment, which also showed hearing loss, would have
been discussed with appellant. Dr. Mauldin noted that, in a March 27, 1989 form, appellant
checked a box indicating that he was aware of preexisting hearing loss upon his rehire to his
federal employment. Attached to his opinion are various employee medical reports on appellant.
In the March 27, 1989 report, in the medical questionnaire portion, appellant indicates that he
suffers from hearing loss.
In a letter to the employing establishment dated June 25, 2012, appellant stated that he
has been advised by his physician for the first time that he has an occupational hearing loss
related to his employment with the employing establishment.
The record contains medical examination records of the employing establishment. In the
medical questionnaire section of the form appellant completed on October 14, 1976, he checked
a box indicating that he had no ear disease or injury or hearing loss. In the medical questionnaire
completed by appellant for the employing establishment on March 27, 1989 he checked the box
indicating that he had ear disease, injury or hearing loss and circled hearing loss.
In a January 29, 2013 letter, Dr. William A. Logan, a Board-certified otolaryngologist,
stated that he reviewed Dr. Yeiser’s audiogram and that appellant’s hearing loss was consistent
with hearing loss due to noise exposure and that he believed that appellant’s occupational noise
exposure at the employing establishment would have contributed to his hearing loss.
At the oral hearing, held before an OWCP hearing representative on February 12, 2013,
appellant discussed his federal employment and noted that he was exposed to noise from
turbines, boilers, pumps, fans, bail mills and conveyors. He noted that initially he did not wear
earplugs and that, although they were provided later, they did not keep the noise out. Appellant
testified that he first learned that his hearing loss was related to his employment when he got the
report from Dr. Dave. He testified that the employing establishment never gave him the results
of any hearing tests. Appellant stated that he knew that noise exposure could cause hearing loss,
but did not realize that the noise exposure at his employment had, in fact, caused a hearing loss.
By decision dated April 8, 2013, the hearing representative affirmed OWCP’s
September 21, 2012 decision.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.2 In case of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
2

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

3

for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
(1)
The immediate superior had actual knowledge of the injury or death
within 30 days. The knowledge must be such as to put the immediate superior
reasonably on notice of an on-the-job injury or death; or
(2)
Written notice of injury or death as specified in section 8119 was given in
30 days.3
Section 8119 of FECA provides that notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.4 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.5
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his or her condition and his or her employment. When an employee becomes aware or
reasonably should have been aware that he or she has a condition which has been adversely
affected by factors of his or her federal employment, such awareness is competent to start the
limitation period even though the employee does not know the precise nature of the impairment
or whether the ultimate result of such affect would be temporary or permanent.6 Where the
employee continues in the same employment after he or she reasonably should have been aware
that he or she has a condition which has been adversely affected by factors of federal
employment, the time limitation begins to run on the date of the last exposure to the implicated
factors.7 Section 8122(b) of FECA provides that the time for filing in latent disability cases does
not begin to run until the claimant is aware or by the exercise of reasonable diligence should
have been aware, of the causal relationship between the employment and the compensable
disability.8 The requirement to file a claim within three years is the claimant’s burden and not
that of the employing establishment.9
3

5 U.S.C. § 8122(a).

4

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

5

Laura L. Harrison, 52 ECAB 515 (2001); see also R.L., Docket No. 13-1177 (issued July 17, 2013).

6

Larry E. Young, supra note 4.

7

Id.

8

5 U.S.C. § 8112(b); see Luther Williams, Jr., 52 ECAB 360 (2001).

9

Debra Young Bruce, 52 ECAB 315 (2001).

4

ANALYSIS
On August 8, 2012 appellant filed an occupational disease claim alleging that he
sustained a hearing loss due to factors of his federal employment. His claim for an occupational
disease is considered timely filed if it is filed within three years after he became aware or should
have become aware of the relationship between his employment and this hearing loss.10 The
evidence establishes that appellant was last exposed to noise during his federal employment on
May 2, 1989. He contended that he first became aware that his hearing loss was connected to his
employment on June 25, 2012, when he reviewed the report of Dr. Dave and realized that he had
employment-related hearing loss. OWCP’s hearing representative determined that appellant first
became aware that he sustained a hearing loss and that it was related to his employment at least
by March 27, 1989, when he reapplied for employment at the employing establishment and
completed a medical questionnaire advising that he had hearing loss.
The Board finds that appellant has not shown that his claim for an employment-related
hearing loss was filed in a timely manner as the evidence does not support a finding that the
claim was filed within three years of the date of injury or that his immediate supervisor had
actual knowledge within 30 days of the date of injury. The date appellant listed for becoming
aware that he had hearing loss was January 1, 1997 and he indicated that he related his hearing
loss to his federal employment on June 25, 2012. However, he indicated that on March 27, 1989
on the medical examination record for the employing establishment that he had hearing loss.
Furthermore, appellant testified that he was exposed to noise from turbines, boilers, pumps, fans,
bail mills and conveyors and that he was not initially provided with noise protection. These
factors would indicate that he should have been aware of his hearing loss and its relationship to
his employment at least by March 27, 1989. The appropriate standard is that appellant knew or
should have known. The Board finds that he should reasonably have been expected to know by
March 27, 1989 of the causal relationship between his hearing loss and employment factors.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate superior had actual knowledge of the injury within 30 days or under section
8122(a)(2) or if written notice of injury was given to his immediate superior within 30 days as
specified in section 8119. There is no evidence that appellant satisfied either criteria. There is
no evidence of written notice pursuant to section 8119. There is no evidence that audiograms
from the time of appellant’s federal employment showed such a notable worsening of his hearing
during his federal employment such that the immediate superior would have gained actual
knowledge of the claimed injury.
Finally, appellant’s counsel alleges that the report of Dr. Mauldin must be stricken from
the record because no additional evidence submitted after the date of OWCP’s decision is to be
reviewed pursuant to 20 C.F.R. § 501.2(c)(1). This section of the regulations indicate that the
Board’s jurisdiction is limited to evidence in the case record that was before OWCP at the time
of its final decision and that evidence not before OWCP will not be considered by the Board for

10

N.N., Docket No. 13-1525 (issued December 13, 2013).

5

the first time on appeal.11 Dr. Mauldin’s report was submitted to OWCP prior to the issuance of
the April 8, 2013 decision. Accordingly, counsel’s argument is without merit.
For these reasons, the Board finds that appellant’s claim was untimely filed. Appellant
may submit new evidence or argument with a written request for reconsideration to OWCP
within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant’s claim for a work-related hearing loss is barred by the
applicable time limitation provisions of FECA.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11

20 C.F.R. § 501.2(c)(1).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

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Appearances:
James G. Noucas, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 14-1276
Issued: February 15, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 12, 2014 appellant, through counsel, filed a timely appeal from an April 4, 2014
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the April 4, 2014 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005).

ISSUE
The issue is whether appellant has established more than six percent permanent
impairment of her right upper extremity, for which she previously received a schedule award.
FACTUAL HISTORY
On December 9, 2009 appellant, then a 50-year-old part-time flexible rural carrier,
sustained a traumatic injury in the performance of duty when she slipped on snow and fell down
while loading her vehicle. OWCP accepted her claim for right shoulder rotator cuff tear, right
shoulder supraspinatus tendinitis, and bicipital tendinitis. It paid disability compensation
benefits. On April 21, 2010 appellant returned to full-time modified duty.
On March 5, 2012 appellant filed a claim for a schedule award (Form CA-7). She
provided a February 29, 2012 impairment rating by Dr. Davis W. Clark, a Board-certified
orthopedic surgeon. Dr. Clark referenced the December 9, 2009 employment injury and
reviewed appellant’s medical history. He related appellant’s complaints of limited range of
motion about her shoulder with pain at the extremes of motion. Upon examination of the right
shoulder, Dr. Clark observed mild tenderness over the rotator cuff, acromioclavicular (AC) joint,
and bicipital groove. Hawkin’s impingement test was negative. Neer’s impingement test was
mildly positive. Dr. Clark noted: “After an appropriate warm-up, range of motion testing of the
right shoulder was carried with three repetitions.” He reported flexion to 80 degrees, extension
to 40 degrees, abduction to 100 degrees, adduction to 30 degrees, external rotation (with arm
positioned at 90 degrees) to 50 degrees, and internal rotation (with arm position at 90 degrees) to
30 degrees. Dr. Clark diagnosed right shoulder rotator cuff tear with impingement.
Referring to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009) (A.M.A., Guides), Table 15-5, page 405, Dr. Clark reported that: “if
motion loss is present, this impairment may alternatively be assessed using section 15.71, range
of motion impairment.” He noted that the following upper extremity impairments were related
to the range of motion examination. Dr. Clark determined that according to Table 15-34, page
475, appellant had a total of 20 percent permanent impairment of the right upper extremity.4
Utilizing Table 15-35 and Table 15-37, he noted grade modifiers of 2 for range of motion and for
appellant’s QuickDASH score of 57. Because the range of motion and grade modifiers were
equal, Dr. Clark found no adjustment of the 20 percent upper extremity rating of permanent
impairment.
He reported a date of maximum medical improvement (MMI) of
November 29, 2011.
On April 5, 2012 Dr. David Krohn, an OWCP medical adviser, reviewed Dr. Clark’s
evaluation. Using the diagnosis-based impairment (DBI) method of evaluating permanent
impairment, he referred to Table 15-5, page 402, of the A.M.A., Guides and reported a default
impairment of one percent for a diagnosis of partial thickness tear. Dr. Krohn noted grade

4

Dr. Clark added the values of 9 percent impairment for flexion, 1 percent for extension, 3 percent for abduction,
1 percent for adduction, 2 percent for external rotation, and 4 percent for internal rotation for a total of 20 percent.

2

modifiers5 and adjusted the default impairment rating to two percent. He explained that he did
not use the range of motion method to determine impairment because there appeared to be
substantial deterioration in appellant’s right shoulder condition. Dr. Krohn pointed out that
appellant had excellent range of motion during a March 1, 2011 examination with Dr. Patrick
Casey, a Board-certified orthopedic surgeon, but Dr. Clark’s February 29, 2012 examination
findings were significantly less. Given this discrepancy, he concluded that he could not
determine the extent of her permanent impairment. Dr. Krohn recommended that appellant be
referred to a referee physician to evaluate the range of motion of the right and left shoulders.
On October 17, 2012 OWCP found a conflict in medical opinion between Dr. Clark,
appellant’s physician, and Dr. Krohn, OWCP’s referral physician. It referred appellant’s case to
Dr. Daniel O’Neill, a Board-certified orthopedic surgeon to resolve the conflict of appellant’s
impairment rating. In a November 13, 2012 report, he reviewed appellant’s history and noted
her complaints of decreased range of motion in her right shoulder. Upon examination,
Dr. O’Neill observed some tenderness to palpation in the left shoulder and uncomfortable biceps
tendon and bursa on the right shoulder. He reported decreased range of motion with flexion to
110 degrees on the right, 130 degrees on the left, abduction to 160 degrees bilaterally, and
external rotation to 30 degrees bilaterally. Dr. O’Neill noted that he was unable to evaluate her
range of motion or her strength at 90 degrees of horizontal abduction because appellant became
uncomfortable. He further reported that it was difficult to determine the range of motion of
appellant’s left upper extremity due to injury, but he felt that his calculations were accurate and
reproducible.
Referring to page 385 of the sixth edition of the A.M.A., Guides, Dr. O’Neill noted that
most impairment values for the upper extremity were calculated using the DBI method. He
noted that the range of motion method was used primarily as a physical examination adjustment
factor and only used to determine actual impairment value when it was not possible to otherwise
define impairment. Utilizing the shoulder regional grid, Table 15-5, Dr. O’Neill determined that
appellant had class 1 impairment for full-thickness tear. He found that appellant had a grade
modifier of 2 for functional history and physical examination and none for clinical studies.
Relying on the net adjustment formula, page 411, Dr. O’Neill concluded that appellant had six
percent upper extremity permanent impairment. He reported a date of MMI of March 1, 2011.
On February 7, 2013 Dr. Morley Slutsky, an OWCP medical adviser, reviewed
appellant’s medical records, including Dr. O’Neill’s November 13, 2012 evaluation. He noted
the examination date of November 13, 2012 as the date of MMI. Dr. Slutsky opined that the
DBI method was the preferred rating method for the upper extremities and that the range of
motion method should be a physical adjustment factor. He further opined that an impairment
rating based only on range of motion should be used when no other approach, such as the DBI
method, was available. Using the DBI method of evaluating impairment, Dr. Slutsky identified a
diagnosis of full-thickness tear with residual loss of function, which resulted in a class 1 default
rating. He reported grade modifiers of 2 for clinical studies and 1 for functional history and
physical examination. Dr. Slutsky pointed out that Dr. O’Neill documented one motion per joint
5

Dr. Krohn reported a grade modifier of -1 for Functional History (GMFH) for “no problem.” He noted a grade
modifier of +1 for Physical Examination (GMPE) due to appellant’s “history of trauma.” Dr. Krohn reported a
grade modifier of +3 for Clinical Studies (GMCS) for more than one of the following symptomatic diagnoses.

3

movement, but this was “not consistent with the validity criteria in section 15.7, page 464 … for
measuring [range of motion].” Accordingly, he concluded that Dr. O’Neill’s range of motion
measurements were invalid for impairment calculations. Utilizing the net adjustment formula,
Dr. Slutsky opined that appellant had six percent permanent impairment of the right upper
extremity.
In a decision dated April 18, 2013, OWCP issued a schedule award for six percent
permanent impairment of appellant’s right upper extremity.
On May 14, 2013 counsel requested a review of the written record. In a statement, he
contended that OWCP’s physicians failed to properly apply the A.M.A., Guides because they
rejected range of motion method. Counsel pointed out that section 15.2, page 387, allowed for
the use of the range of motion method when a grid permitted its use. He noted that Shoulder
Regional Grid, Table 15-5, specifically allowed that: “If motion loss is present, this impairment
may alternatively be assessed using section 15.7, Range of Motion Impairment.” Counsel also
noted that according to the “Fundamental Principles of the [A.M.A.], Guides,” if more than one
method may be used to rate a particular impairment, the method producing the higher rating must
be used.” Thus, he concluded that appellant should be granted an impairment rating of 20
percent as Dr. Clark properly applied the A.M.A., Guides and produced the higher impairment
rating. Counsel included copies of the various medical reports and sections of the A.M.A.,
Guides.
By decision dated July 29, 2013, an OWCP hearing representative affirmed the April 18,
2013 schedule award decision. He found that OWCP incorrectly determined that a conflict in
medical opinion existed regarding the percentage of impairment, and therefore, Dr. O’Neill’s
report should only be considered a second opinion evaluation and not be accorded the special
weight of a referee opinion. The hearing representative further determined that because
Dr. Clark did not explain why he did not use the DBI method and failed to provide findings of
appellant’s left upper extremity range of motion to compare with his right, his report lacked
probative value.
On October 7, 2013 OWCP received appellant’s request for reconsideration. Counsel
noted that an enclosed report from Dr. Clark responded to OWCP’s hearing representative’s
issues regarding his report. He alleged that Dr. Clark’s evaluation was the only evaluation of
appellant’s permanent impairment rating that complied with the A.M.A., Guides.
In a September 5, 2013 report, Dr. Clark noted that he used the range of motion method
as opposed to the DBI for impairment rating because both the “Fundamental Principles of the
A.M.A., Guides” and the “Clarifications and Corrections” Supplement to the A.M.A., Guides
allowed for that method to be used. He also explained that he did not compare the right shoulder
to the left because appellant’s left shoulder was previously injured and would not be part of a
valid examination.
In a decision dated April 4, 2014, OWCP denied modification of the July 29, 2013
hearing representative’s decision. It found that Dr. Slutsky’s report provided adequate reasoning
to explain that the DBI method of evaluation was preferable and that his finding of six percent
permanent impairment properly conformed to the A.M.A., Guides.

4

LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of the Office of Workers’
Compensation Programs.6 Section 8107 of FECA sets forth the number of weeks of
compensation to be paid for the permanent loss of use of specified members, functions, and
organs of the body.7 FECA, however, does not specify the manner by which the percentage loss
of a member, function, or organ shall be determined. To ensure consistent results and equal
justice under the law, good administrative practice requires the use of uniform standards
applicable to all claimants. Through its implementing regulations, OWCP adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.8
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).9 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.10
ANALYSIS
The issue on appeal is whether appellant has established more than six percent permanent
impairment of her right upper extremity, for which she previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the range of
motion methodology when assessing the extent of permanent impairment for schedule award

6

See 20 C.F.R. §§ 1.1-1.4.

7

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
8

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
10

Isidoro Rivera, 12 ECAB 348 (1961).

5

purposes.11 The purpose of the use of uniform standards is to ensure consistent results and to
ensure equal justice under the law to all claimants.12 In T.H., the Board concluded that OWCP
physicians are at odds over the proper methodology for rating upper extremity impairment,
having observed attending physicians, evaluating physicians, second opinion physicians,
impartial medical examiners, and district medical advisers use both DBI and range of motion
methodologies interchangeably without any consistent basis. Furthermore, the Board has
observed that physicians interchangeably cite to language in the first printing or the second
printing when justifying use of either range of motion or DBI methodology. Because OWCP’s
own physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that
OWCP can no longer ensure consistent results and equal justice under the law for all claimants.13
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside April 4, 2014 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

11

T.H., Docket No. 14-0943 (issued November 25, 2016).

12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

13

Supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the April 4, 2014 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.14
Issued: February 15, 2017
Washington, DC

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

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

14

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MINNEAPOLIS VA HEALTH CARE SYSTEM,
Minneapolis, MN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0687
Issued: June 25, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On March 27, 2021 appellant filed a timely appeal from a March 12, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0687.
In a letter dated May 18, 2021 and received May 25, 2021, appellant requested that the
appeal be dismissed.
The Board has duly considered the matter and concludes that appellant’s request for the
dismissal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-0687 is dismissed.
Issued: June 25, 2021
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Greensboro, NC, Employer
__________________________________________

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

Docket No. 13-124
Issued: March 5, 2013

Case Submitted on the Record

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

JURISDICTION
On October 22, 2012 appellant filed a timely appeal of the October 9, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing
pursuant to 5 U.S.C. § 8124(b)(1).

1
2

5 U.S.C. §§ 8101-8193.

With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On July 25, 2011 appellant, then a 60-year-old transportation security officer, filed a
traumatic injury claim alleging that on the same day she strained her back when she was
conducting a bag search and pulled a television out of some luggage. She worked intermittently
thereafter.
Appellant was initially treated on October 18, 2011 by a physician’s assistant for low
back pain which occurred on July 25, 2011 after lifting a television out of a bag. The physician’s
assistant diagnosed low back pain with bilateral leg pain and advised that appellant could return
to work with restrictions. On November 23, 2011 appellant was treated by Dr. Joseph D. Stern, a
Board-certified neurologist, for low back pain which started on July 29, 2011 after a lifting
incident at work. Dr. Stern noted an x-ray of the lumbar spine revealed scoliosis,
spondylolisthesis and degenerative disc disease at L1-2 and L4-5. He noted findings upon
physical examination and diagnosed low back and bilateral lower extremity pain. A magnetic
resonance imaging (MRI) scan dated December 2, 2011 revealed grade 1 spondylolisthesis at
L4-5, spinal and lateral recess stenosis at L4-5, L2-3 and bulging discs at T12-L1, L1-2 and
L2-3.
On December 21, 2011 appellant filed a CA-7, claim for compensation for total disability
for the period December 18 to 31, 2011.
By letter dated January 3, 2012, OWCP advised appellant that her claim was originally
received as a simple, uncontroverted case which resulted in minimal or no time loss from work.
It indicated that appellant’s claim was administratively handled to allow medical payments up to
$1,500.00; however, the merits of the claim had not been formally adjudicated. OWCP advised
that, because she filed a claim for wage loss, her claim would be formally adjudicated. It
requested that appellant submit additional information including a comprehensive medical report
from her treating physician which included a reasoned explanation as to how the specific work
factors or incidents identified by her had contributed to her claimed back injury.
Appellant submitted a January 22, 2012 statement and indicated that on July 25, 2011,
while examining a bag she lifted a television out of some luggage and had a pull in her back.
She noted that she continued to experience low back pain radiating into her legs and sought
medical treatment. On December 19, 2011 appellant was treated by Dr. Stern who noted her
continued complaints of back pain and recommended physical therapy and pain medicine. Also
submitted were physical therapy reports dated January 6, 2012.
In a decision dated February 7, 2012, OWCP denied appellant’s claim for compensation
on the grounds that the medical evidence failed to establish that the claimed medical condition
was related to the established work-related event.
In an appeal request form dated February 23, 2012 and postmarked May 29, 2012,
appellant requested an oral hearing. Appellant submitted a report from Dr. Stern dated
November 23, 2011 and a narrative statement dated January 22, 2012, all previously of record.
Also submitted were physical therapy reports dated December 22, 2011 to February 13, 2012.

2

In a decision dated October 9, 2012, OWCP denied appellant’s request for an oral
hearing. It found that the request was not timely filed. Appellant was informed that her case had
been considered in relation to the issues involved and that the request was further denied for the
reason that the issues in this case could be addressed by requesting reconsideration from OWCP
and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied
with a decision of the Secretary ... is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on his [or her] claim before a representative of the
Secretary.”3 Section 10.617 and 10.618 of the federal regulations implementing this section of
FECA provides that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.4 A claimant is entitled to a hearing or review
of the written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.5 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.6 Its procedures require that it exercise
its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).7
ANALYSIS
Appellant requested a hearing in an appeal form dated February 23, 2012 and postmarked
May 29, 2012. As the hearing request was made more than 30 days after issuance of the
February 7, 2012 OWCP decision, appellant’s request for an oral hearing was untimely filed and
she is not entitled to an oral hearing as a matter of right.8
OWCP also notified appellant that it had considered the matter in relation to the issue
involved and indicated that additional argument and evidence could be submitted with a request
for reconsideration. It has broad administrative discretion in choosing means to achieve its
general objective of ensuring that an employee recovers from his or her injury to the fullest
extent possible in the shortest amount of time. An abuse of discretion is generally shown
through proof of manifest error, a clearly unreasonable exercise of judgment, or actions taken
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. §§ 10.616, 10.617.

5

Id. at § 10.616(a).

6

Delmont L. Thompson, 51 ECAB 155 (1999); Eddie Franklin, 51 ECAB 223 (1999).

7

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
8

On appeal, appellant asserts that she mailed a hearing request on February 23, 2012. However, the record
contains no evidence of an earlier hearing request than the one that was postmarked May 29, 2012.

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which are contrary to both logic and probable deductions from established facts.9 There is no
indication that OWCP abused its discretion in this case in finding that appellant could further
pursue the matter through the reconsideration process.
Consequently, OWCP properly denied appellant’s request for an oral hearing.
On appeal, appellant asserted that she submitted sufficient medical evidence to support
that her diagnosed condition was work related. As explained, the Board does not have
jurisdiction to review the merits of the claim only whether appellant filed a timely request for an
oral hearing. As noted above, the hearing request was made more than 30 days after issuance of
the February 7, 2012 OWCP decision and was untimely and there was no indication that OWCP
abused its discretion in finding that appellant could further pursue the matter through the
reconsideration process.
CONCLUSION
The Board further finds that OWCP properly denied appellant’s request for an oral
hearing pursuant to 5 U.S.C. § 8124(b)(1).
ORDER
IT IS HEREBY ORDERED THAT the October 9, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9

Samuel R. Johnson, 51 ECAB 612 (2000).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF AGRICULTURE, U.S.
FOREST SERVICE, El Rito, NM, Employer
__________________________________________

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Appearances:
Jennifer D. Yoder, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0183
Issued: November 18, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 5, 2018 appellant, through counsel, filed a timely appeal from an
October 19, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the October 19, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $5,763.42 for the period December 25, 2016 through March 31, 2018, because OWCP
failed to deduct health benefit premiums, for which appellant was not at fault; (2) whether OWCP
properly denied waiver of recovery of the overpayment; and (3) whether it properly required
recovery of the overpayment by deducting $400.00 every 28 days from appellant’s continuing
compensation.
FACTUAL HISTORY
On November 8, 2016 appellant, then a 52-year-old customer service representative, filed
a traumatic injury claim (Form CA-1) alleging that on November 1, 2016, he struck two elk while
driving a government vehicle while in the performance of duty. He indicated that he suffered a
concussion and neck and back injuries from whiplash as a result of this collision. Appellant
stopped work on November 1, 2016. OWCP accepted the claim for concussion with loss of
consciousness of unspecified duration; contusion of left eyelid and periocular area; right shoulder
derangement; and low back strain. It paid appellant wage-loss compensation on the supplemental
rolls as of December 25, 2016, and on the periodic rolls as of April 2, 2017.
On January 11, 2017 appellant completed a claim for compensation (Form CA-7). On the
reverse side of the form, the employing establishment checked the box marked “no” in answer to
a question as to whether appellant was enrolled in a federal employee health plan (FEHP).
A February 1, 2017 telephone memorandum (Form CA-110) relates that OWCP contacted
the employing establishment to verify appellant’s pay rate information. The employing
establishment indicated that he received an annual salary of $34,472.00, and that his only benefit
was basic life insurance.
A Form CA-1049 dated April 6, 2017, issued by OWCP outlined appellant’s entitlement
to compensation benefits beginning March 19, 2017. It indicated that his wage-loss compensation
payments included deductions for basic life insurance; however, no deductions were being made
for health benefits. OWCP advised appellant to notify it immediately if he had optional life
insurance or health benefits coverage as no deduction was shown for these benefits and he would
be responsible for these premiums.
On April 11, 2018 the employing establishment provided OWCP with a FEHB notice of
change in health benefits enrollment (Form 2810), indicating that enrollment code 112, should be
transferred from the employing establishment to OWCP effective December 25, 2016.
In an April 20, 2018 telephone memorandum (Form CA-110), appellant informed OWCP
that his health insurance premiums had not been paid. OWCP explained that they had just received
his health benefits enrollment form and that appellant had been advised of his entitlement to
benefits in the April 6, 2017 Form CA-1049. Appellant indicated that he did not believe he should
be held responsible and he indicated that he had not read the form because of his medical condition.
In a June 4, 2018 fiscal file memorandum, OWCP calculated that, from December 25, 2016
through March 31, 2018, it had failed to deduct health benefit premiums, totaling $5,763.42.

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In a preliminary notice of overpayment dated June 4, 2018, OWCP advised appellant of its
determination that he had received an overpayment of compensation in the amount of $5,763.42,
because it failed to deduct health benefit premiums from his FECA benefits for the period
December 25, 2016 through March 31, 2018, for a total of 462 days. It provided a calculation of
the overpayment and indicated that appellant was at fault in its creation. OWCP requested that
appellant provide information regarding his income, assets, and expenses on an enclosed
overpayment recovery questionnaire (Form OWCP-20) within 30 days, if he contested that an
overpayment occurred.
On June 20, 2018 counsel requested a telephonic prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. He contended that OWCP should
waive recovery of the overpayment because appellant was hospitalized and treated for serious
injuries, including a traumatic brain injury, and “could not have been reasonably aware of the
alleged overpayment.”
In an August 6, 2018 telephone memorandum (Form CA-110), OWCP advised counsel
that the Form OWCP-20 must be completed prior to the telephonic prerecoupment hearing.
Appellant submitted an incomplete Form OWCP-20 on September 21, 2018. Appellant listed total
monthly income of $2,011.00 and total monthly expenses of $3,596.00 ($676.00, rent or mortgage;
$1,100.00, food; $200.00, clothing; $725.00, utilities; $695.00, other expenses to include car,
insurance and personal necessities; and $200.00, credit cards).
During the September 24, 2018 telephonic prerecoupment hearing, OWCP’s representative
indicated that the finding of fault should be changed to a finding of not at fault. She requested that
appellant provide documentation to support his expenses, his final divorce decree, and the award
letter from the Department of Veterans Affairs for post-traumatic stress disorder. OWCP received
a copy of a September 2018 credit report, but no other documentation of income or expenses.
By decision dated October 19, 2018, OWCP finalized the preliminary determination,
finding that appellant received a $5,763.42 overpayment of compensation for the period
December 25, 2016 through March 31, 2018, as OWCP failed to deduct health benefit premiums.
OWCP changed the preliminary at fault finding and found that appellant was not at fault as he was
not aware, nor could he have been reasonably aware that the health benefits were not being
deducted. However, it further found that the circumstances of his case did not warrant a waiver of
the recovery of the overpayment. OWCP explained that appellant had not provided the
documentation requested at the telephonic prerecoupment hearing and that it was unable to verify
the court ordered spousal support and the value of appellant’s assets. It found that, as appellant
received $1,658.94 in compensation payments every 28 days, he was able to repay the
overpayment at the rate of $400.00 a month, and that this rate of recovery would not defeat the
purpose of FECA or be against equity and good conscience.
LEGAL PRECEDENT -- ISSUE 1
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.4
When an overpayment has been made to an individual because of an error of fact or law,
4

5 U.S.C. § 8102(a); see T.G., Docket No. 17-1989 (issued June 5, 2018).

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adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.5
An employee entitled to disability compensation may continue his or her health benefits
under the FEHB program. OPM, which administers the FEHB program, by regulation provides
guidelines for the registration, enrollment, and continuation of enrollment for federal employees.
In this connection, 5 C.F.R. § 890.502(a)(1) provides:
“An employee or annuitant is responsible for payment of the employee’s share of
the cost of enrollment for every pay period during which the enrollment continues.
In each pay period for which health benefits withholdings or direct premium
payments are not made, but during which the enrollment of an employee or
annuitant continues, he or she incurs an indebtedness to the United States in the
amount of the proper employee withholding required for that pay period.”6
In addition, 5 C.F.R. § 890.502(c) provides:
“An establishment that withholds less than or none of the proper health benefits
contributions for an individual’s pay, annuity or compensation must submit an
amount equal to the sum of the uncollected deductions and any applicable
establishment contributions required under section 8906 of the title, 5 United States
Code, to OPM for deposit in the Employee’s Health Benefits Fund.”7
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.8 An establishment that withholds less than the
proper health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.9 The Board has recognized that, when an underwithholding of health benefit
premiums is discovered, the entire amount is deemed an overpayment of compensation because
OWCP must pay the full premium to OPM when the error is discovered.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $5,763.42 for the period December 25, 2016 through March 31,
2018, because OWCP failed to deduct health benefit premiums, for which appellant was not at
fault.

5

Id. at § 8129(a).

6

Id. at § 890.502(a)(1).

7

Id. at § 890.502(c).

8

Id. at § 890.502(b)(1).

9

Id. at § 890.502(d).

10

T.G., Docket No. 17-1989 (issued June 5 2018); James Lloyd Otte, 48 ECAB 334 (1997).

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As previously noted, an overpayment of compensation is made when an underwithholding
of health benefits occurs. A fiscal worksheet demonstrated that, from December 25, 2016 through
March 31, 2018, OWCP failed to deduct a total of $5,763.42 from appellant’s compensation
payments for health benefit premiums.
The Board has reviewed OWCP’s calculations and finds that it properly determined that
appellant received an overpayment of compensation in the amount of $5,763.42 for the time period
at issue.11
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that
rests within OWCP’s discretion pursuant to statutory guidelines.12 These statutory guidelines are
found in section 8129(b) of FECA which provides:
“Adjustment or recovery of an overpayment by the United States may not be made
when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of this subchapter or would
be against equity and good conscience.”13
Section 10.436 of the implementing regulations14 provides that recovery of an overpayment
will defeat the purpose of FECA if such recovery would cause hardship to a currently or formerly
entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or
ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified
amount as determined by OWCP from data furnished by the Bureau of Labor Statistics.15

11

An overpayment finding made in a final decision issued prior to September 2018 was subject to reversal if the
preliminary notice of overpayment was not issued within 30 days after the overpayment was identified. See P.H.,
Docket No. 18-1539 (issued August 2, 2019); P.H., Docket No. 18-1806 (issued October 10, 2019) (the Board
reversed the finding of overpayment as the preliminary overpayment determination was not issued within 30 days
after the overpayment was identified). The overpayment in this case was identified by OWCP on April 11, 2018,
OWCP did not issue a preliminary determination until June 4, 2018; however, the final decision did not issue until
October 19, 2018. While OWCP’s procedures previously required that a preliminary determination must be issued
within 30 days after an overpayment was identified, by the time the final decision issued in this case on October 19,
2018, OWCP had modified its procedures such that this provision was no longer mandatory, but rather the 30-day
period for issuance of a preliminary determination was advisory. See Federal (FECA) Procedure Manual, Part 6 -Debt Management, Debt Liquidation, Chapter 6.300.5 (September 2018).
12

See Robert Atchison, 41 ECAB 83, 87 (1989).

13

5 U.S.C. § 8129(b).

14

20 C.F.R. § 10.436.

15
20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet current and
ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. 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. See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final
Overpayment Determinations, Chapter 6.400(2), (3) (September 2018).

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Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his
or her position for the worse.16
Section 10.438 provides that the individual who received the overpayment is responsible
for providing information about income, expenses and assets as specified by OWCP. This
information is needed to determine whether or not recovery on an overpayment would defeat the
purpose of FECA or be against equity and good conscience. Failure to submit the requested
information within 30 days of the request shall result in denial of waiver.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
OWCP found appellant not at fault in the creation of the overpayment. However, the issue
is whether recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience. In the June 4, 2018 preliminary determination of overpayment, it requested
that he submit information regarding his assets, income, and expenses on an enclosed Form
OWCP-20 and notified him of the provisions of 20 C.F.R. § 10.438.
Appellant submitted an incomplete Form OWCP-20 on September 21, 2018. He listed
total monthly income and noted expenses, however, he did not provide requested information
regarding his income, assets, and expenses. Following the telephonic prerecoupment hearing,
OWCP received a credit report, but appellant still did not provide documentation of all his
expenses, including the amount paid for spousal support and the value of his assets.
The Board finds that OWCP properly determined that recovery of the overpayment would
not defeat the purpose of FECA or be against equity and good conscience.18 Appellant has the
responsibility to submit the necessary evidence.19 Pursuant to 20 C.F.R. § 10.438, OWCP must
deny waiver of the overpayment if financial information is not received.20 For this reason, it
properly denied waiver in conformance with the implementing federal regulations.

16

20 C.F.R. § 10.437.

17

Id. at § 10.438.

18

See D.I., Docket No. 13-0469 (issued July 1, 2013); N.R., Docket No. 12-1853 (issued June 10, 2013).

19

See supra note 17.

20

Id.

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LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.21 Section
10.441(a) of the regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”22
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment through
deduction of $400.00 from appellant’s continuing compensation payments.
OWCP found that appellant received FECA compensation benefits on the periodic rolls in
the amount of $1,658.94 every 28 days. While appellant had responded to the preliminary
overpayment determination and had submitted a summary of income and expenses, OWCP asked
him to provide documentation of his expenses and assets during the telephonic prerecoupment
hearing; however, he failed to provide the requested documentation. Therefore, OWCP’s hearing
representative found that appellant could repay the overpayment at a rate of $400.00 per month.
OWCP’s current procedures provide that if no response to the preliminary overpayment
determination is received, OWCP should set the rate of repayment at 25 percent of the 28-day net
compensation amount until the balance of the overpayment is paid in full. If a completed response
to the preliminary determination is received within one year, the financial information should be
thoroughly examined and if adjustment of the 25 percent is warranted, OWCP should set a
reasonable rate of repayment with intent to recover the overpayment within three years.23
Based on the evidence of record, OWCP gave due regard to the relevant factors noted
above and therefore did not abuse its discretion in setting the rate of recovery.24 The Board finds
that OWCP properly required recovery of the overpayment by deducting $400.00 from appellant’s
continuing compensation payments.

21

Lorenzo Rodriguez, 51 ECAB 295 (2000).

22

20 C.F.R. § 10.441(a).

23

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.500.8(c)(1) (September 2018).
24

See M.D., Docket No. 11-1751 (issued May 7, 2012).

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CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$5,763.42 and that he was not at fault in the creation of the overpayment. The Board further finds
that OWCP properly denied waiver of recovery of the overpayment and it properly required
recovery of the overpayment by deducting $400.00 every 28 days from appellant’s continuing
compensation.
ORDER
IT IS HEREBY ORDERED THAT the October 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2019
Washington, DC

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

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

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

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