United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JESSE BROWN VETERANS
ADMINISTRATION MEDICAL CENTER,
Chicago, IL, Employer
__________________________________________

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

Docket No. 17-1439
Issued: February 15, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 19, 2017 appellant filed a timely appeal from a January 12, 2017 merit decision
and a March 2, 2017 nonmerit 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 to consider the merits of this case
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish greater than
eight percent right upper extremity permanent impairment, for which she previously received a
schedule award; and (2) whether OWCP properly denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 24, 2014 appellant, then a 35-year-old medical instrument technician, filed
a traumatic injury claim (Form CA-1) alleging that, on that date, she aggravated or pulled
muscles/tendons from her right hand up to her neck while she was repositioning and resetting a
hemodialysis unit. She stopped work on the date of injury. OWCP assigned this claim File No.
xxxxxx471. The employing establishment controverted the claim, noting that the circumstances
surrounding the claim were suspicious since appellant had just returned to work that day after
being off work due to a prior work injury.
OWCP initially denied appellant’s claim by decision dated November 13, 2014 finding
that she had not established causal relationship between the employment incident and her
diagnosed medical conditions.2 By decision dated November 18, 2015, it accepted her claim for
unspecified right shoulder joint sprain.3
The record reflects that appellant had a prior accepted occupational disease claim which
had been accepted for bilateral carpal tunnel syndrome and right wrist sprain. OWCP assigned
the claim File No. xxxxxx866. Appellant received compensation benefits on the supplemental
rolls under this claim from November 19, 2012 until April 6, 2013, and on the periodic rolls from
April 7, 2013 until September 20, 2014.
Appellant received a schedule award under OWCP File No. xxxxxx866 for bilateral
carpal tunnel syndrome on September 21, 2014. OWCP found that she had eight percent
permanent impairment of the right upper extremity, and eight percent permanent impairment of
the left upper extremity due to the accepted bilateral carpal tunnel syndrome.
On September 29, 2015 OWCP referred appellant’s claim to a district medical adviser
(DMA). The DMA was instructed to review the medical file to determine whether appellant was
entitled to a schedule award for more than eight percent right upper extremity and eight percent
left upper extremity schedule award for her right upper extremity.
In an October 1, 2015 report, Dr. David H. Garelick, a Board-certified orthopedic
surgeon serving as a DMA, reviewed the evidence OWCP provided and noted that appellant’s
claim had been accepted for bilateral carpal tunnel syndrome and right wrist sprain under OWCP
File No xxxxxx866. He opined that appellant was not entitled to a schedule award greater than
the eight percent right upper extremity and eight percent left upper extremity, she had previously
been granted.
In a report dated November 5, 2016, Dr. Anatoly M. Rozman, an examining Boardcertified physiatrist, advised that appellant had been under his care since sustaining the right
shoulder sprain on September 24, 2014. He indicated that she reached maximum medical
2
On December 2, 2014 appellant filed an appeal with the Board. By order dated May 13, 2015, the Board
granted her request to dismiss her appeal from a November 13, 2014 decision which denied her traumatic injury
claim. Order Dismissing Appeal, Docket No. 15-0326 (issued May 13, 2015).
3
In an internal memorandum dated January 28, 2016, OWCP combined OWCP File Nos. xxxxxx866, and
xxxxxx471 with OWCP File No. xxxxxx866 listed as the master File No.

2

improvement (MMI) on November 5, 2016. Dr. Rozman advised that appellant had right
shoulder residual pain as well as weakness and pain on movement and overhead work residuals.
He reported no significant right shoulder range of movement changes; weakness on forward
flexion and internal rotation; negative Adson’s maneuver, Hawkins’ test, drop arm test, and
empty can test; and right shoulder pain on palpation with no swelling. Dr. Rozman provided an
impairment rating using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).4 Based on a diagnosis of right shoulder
tendinitis, Dr. Rozman found that, under Table 15-5, p. 402, Shoulder Regional Grid, appellant
had a class 1 impairment with a default value of three percent. He assigned a grade modifier of 1
for functional history due to mild problems using Table 15-7, p. 406. Using Table 15-8, p. 408,
Dr. Rozman assigned a grade modifier of 2 for physical examination findings due to moderate
palpatory findings. No grade modifier was assigned for clinical studies. Dr. Rozman then
applied the net adjustment formula, concluding that appellant had four percent permanent
impairment due to right shoulder tendinitis.
On November 26, 2016 appellant filed a claim for a schedule award (Form CA-7) in the
present claim.
On December 5, 2016 OWCP provided a statement of accepted facts (SOAF) and a copy
of the medical record to the DMA for review. The DMA was instructed to determine whether
appellant was at MMI, and if so, to provide a rating of permanent functional impairment of her
right upper extremity due to the accepted right shoulder joint sprain pursuant to the A.M.A.
Guides.
The SOAF indicated that, under OWCP File No. xxxxxx866, OWCP had accepted
appellant’s claim for bilateral carpal tunnel syndrome and right wrist sprain. It was also noted
that under OWCP File No. xxxxxx471 appellant’s claim was accepted for right shoulder joint
sprain.
In a report dated December 6, 2016, Dr. Arthur S. Harris, Board-certified in orthopedic
surgery, acting as OWCP’s DMA, reviewed the SOAF and medical evidence and noted that
appellant’s claim had been accepted for right shoulder sprain. He noted that appellant had a
permanent impairment due to a right partial rotator cuff tear, rotator cuff tendinitis, and
impingement syndrome. Dr. Harris used the diagnosis-based impairment (DBI) method and for
the diagnosis of partial rotator cuff tear and impingement syndrome assigned a class 1 with a
default position C as per Table 15-5, p. 402 of the A.M.A., Guides. He concurred with
Dr. Rozman’s finding of four percent permanent impairment right upper extremity.
By decision dated January 12, 2017, OWCP denied appellant’s schedule award claim as
it found that the medical evidence of record did not warrant an increase beyond the prior
schedule award. It noted that she had four percent right upper extremity impairment according to
the December 5, 2016 report by Dr. Harris and November 5, 2016 report by Dr. Rozman due to
her accepted right shoulder sprain. OWCP noted that appellant had previously been paid a
schedule award for eight percent right upper extremity permanent impairment and eight percent
left upper extremity permanent impairment under OWCP File No. xxxxxx866. It found the
4

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

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medical evidence submitted did not support entitlement to an additional schedule award under
the sixth edition of the A.M.A., Guides as the impairment rating for her right-sided carpal tunnel
syndrome was higher than the current impairment rating for her right shoulder condition.5
On February 19, 2017 appellant requested reconsideration of the January 12, 2017
decision denying her request for a schedule award. She stated that she had been granted a
schedule award for bilateral carpal tunnel syndrome under OWCP File No. xxxxxx866. Under
the current claim, appellant contended that she was entitled to a schedule award for her accepted
right shoulder condition.
By decision dated March 2, 2017, OWCP denied appellant’s request for reconsideration.6
It found that she had failed to submit relevant and pertinent new evidence or raise a substantive
legal argument warranting further merit review.
LEGAL PRECEDENT -- ISSUE 1
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 OWCP.7 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.8 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.9
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).10 The Board has approved the use by OWCP of the A.M.A.,

5
In the decision denying appellant’s request for an additional schedule award, OWCP did not explain how
appellant’s previous award for permanent impairment of her bilateral carpal tunnel syndrome and right wrist sprain
would be duplicated by an award for unspecified right shoulder sprain. See M.P., Docket No. 17-0150 (issued
June 21, 2017).
6
In a letter dated June 12, 2017, OWCP advised appellant that it had combined OWCP File Nos. xxxxxx866,
xxxxxx471, and xxxxxx895, with OWCP File No. xxxxxx866 listed as the master File No.
7

See 20 C.F.R. §§ 1.1-1.4.

8

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
9

5 U.S.C.

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

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5(a) (February 2013).

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Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.11
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. In addressing impairment for the upper extremities, the
sixth edition of the A.M.A., Guides requires identifying the impairment class for the diagnosed
condition, which is then adjusted by grade modifiers based on Functional History, Physical
Examination, and Clinical Studies.12 The net adjustment formula is (GMFH-CDX) + (GMPECDX) + (GMCS-CDX).13 Evaluators are directed to provide reasons for their impairment rating
choices, including the choices of diagnosis from regional grid and calculations of modifier
scores.14
ANALYSIS -- ISSUE 1
The issue on appeal is whether appellant met her burden of proof to establish greater than
eight percent right upper extremity permanent impairment, 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 had been followed regarding the proper use of the diagnosis-based
impairment (DBI) or the range of motion (ROM) methodology when assessing the extent of
permanent impairment for schedule award purposes.15 The purpose of the use of uniform
standards is to ensure consistent results and to ensure equal justice under the law to all
claimants.16 In T.H., the Board concluded that OWCP physicians were 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 ROM methodologies interchangeably without any consistent
basis. Furthermore, the Board observed that physicians interchangeably cited to language in the
first printing or the second printing when justifying use of either ROM or DBI methodology.
Because OWCP’s own physicians were inconsistent in the application of the A.M.A., Guides, the
11

Isidoro Rivera, 12 ECAB 348 (1961).

12

A.M.A., Guides 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014).

13

Id. at 411.

14

See R.V., Docket No. 10-1827 (issued April 1, 2011).

15

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

16

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

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Board found that OWCP could no longer ensure consistent results and equal justice under the
law for all claimants.17
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the March 2, 201718 and January 12, 2017
decisions. Utilizing a consistent method for calculating permanent impairment for upper
extremities applied uniformly, and after 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.19
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 2 and January 12, 2017 are set aside and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: February 15, 2018
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
17

Supra note 12.

18

In light of the Board’s findings, the second issue is moot and will not be addressed on this appeal.

19

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO & FIREARMS,
Fairview Heights, IL, Employer
__________________________________________

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

Docket No. 11-195
Issued: October 27, 2011

Case Submitted on the Record

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

JURISDICTION
On November 2, 2010 appellant filed a timely appeal from an October 15, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim for an additional
schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has greater than a total 48 percent impairment to his left
upper extremity for which he received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. In an August 18, 2010 decision, the
Board set aside a July 22, 2009 OWCP decision denying appellant’s request for an additional
1

5 U.S.C. § 8101 et seq.

schedule award.2 The Board found that Dr. Daniel D. Zimmerman, an OWCP medical adviser
Board-certified in internal medicine, had not specifically addressed whether the diagnosis-based
impairment (DBI) estimates in this particular case had adequately encompassed any nerve
impairment. On remand, OWCP’s medical adviser was instructed to provide clarification,
specifically with respect to that issue. The facts and the circumstances of the case as set out in
the Board’s prior decision are incorporated herein by reference.3
The relevant medical evidence from the prior appeal is the June 21, 2009 report from
Dr. Zimmerman, who had reviewed appellant’s impairment claim using the sixth edition of the
A.M.A., Guides following instructions from OWCP. Dr. Zimmerman noted that the sixth edition
was diagnosis based and only one diagnosis was appropriate. Using Table 15-5, page 404, he
found the default impairment value for a labral tear was three percent. Next, Dr. Zimmerman
stated that, using Table 15-5, page 403, appellant’s dislocated shoulder would be a class 3 and
noted that the default impairment value permits a 46 percent impairment. Using the Table 15-21,
page 436, OWCP’s medical adviser noted that appellant had a severe motor deficit, but explained
that, even if appellant had a very severe motor impairment, the highest range he could receive
was 35 percent, less than that already awarded. Dr. Zimmerman stated that, based on the range
of motion values reported on November 6, 2008 by Dr. David T. Volarich, an examining
osteopath, which limited appellant’s activities of daily living (ADL) and applying Table 15-34,
page 475, appellant’s range of motion deficits would result in a total 25 percent left upper
extremity. In concluding, he stated that using the sixth edition of the A.M.A., Guides does not
establish that appellant is entitled to a schedule award for more than 48 percent left upper
extremity impairment.
On return of the case record, OWCP requested clarification from its medical adviser as to
whether the peripheral nerve impairment had been adequately considered under the DBI
evaluation.
On September 12, 2010 Dr. Zimmerman provided findings based on the
November 6, 2008 report from Dr. Volarich. He had found a 25 percent permanent impairment
for left shoulder multidirectional instability. Using Table 15-5, page 404, Dr. Zimmerman
identified the impairment class as multidirectional shoulder instability with a class 2 impairment
based on the history of acute trauma and grade 3 or 4 instability with consistent relationship of
symptoms and activities. Next, he determined a grade 2 modifier was appropriate using Table
15-7, page 406, for Functional History (GMFH) adjustment based on pain symptoms and ability
to perform activities with modification and unassisted. Using Table 15-8, page 408,
2

Docket No. 09-2371 (issued August 18, 2010).

3

On June 22, 2000 appellant, then a 37-year-old special agent, filed a traumatic injury claim alleging that on
June 2, 2000 he dislocated his left shoulder while performing pull-ups for his physical certification. OWCP
accepted the claim for left shoulder labral tear and authorized left shoulder arthroscopy with anterior shoulder
reconstruction, which was performed on July 26, 2000. It accepted a recurrence of disability beginning February 10,
2003 and authorized shoulder surgery, which occurred on April 22, 2003. On April 25, 2006 OWCP accepted
appellant’s claim for a recurrence of disability beginning March 23, 2006 and authorized left arthroscopic surgery,
which was performed on May 15, 2006. It expanded the acceptance of appellant’s claim to include hemorrhage of
the gastrointestinal tract and injury to the left axillary nerve. By decision dated April 9, 2002, OWCP issued a
schedule award for 27 percent permanent impairment of the left upper extremity. On September 2, 2005 it granted
appellant a schedule award for an additional 21 percent impairment of the left upper extremity, resulting in a total 48
percent left upper extremity impairment.

2

Dr. Zimmerman concluded that appellant’s atrophy represented a grade 3 modifier under
Physical Examination (GMPE) and adjustment for the proximal arm. He next found that using
Table 15-9, page 410, Clinical Studies (GMCS) adjustment, and Table 15-34, page 475, a grade
modifier 4 was appropriate for appellant’s range of motion and shoulder pathology. In order to
determine the final impairment under the sixth edition, Dr. Zimmerman applied the net
adjustment formula (NAF): GMFH (2) minus Class of Diagnosis (CDX) (2) plus GMPE
(4) minus CDX (2) plus GMCS (4) minus CDX (2). Based on the formula, he determined that
the net adjustment modifier was four. Dr. Zimmerman advised that the plus 4 net adjustment
modifier for the multidirectional instability bilateral shoulder allowed for adjustment to be
processed at a grade E which represented 25 percent impairment of the left upper extremity.
With respect to the axillary nerve impairment, he found the axillary nerve deficit with weakness
represented a class 2 for severe motor deficit with weakness rated at 1-2/5. Dr. Zimmerman
concluded that there was no extra rating for pain in the distribution of the axillary nerve as pain
was “processed” using the grade modifiers. Using Table 15-21, page 436 he noted a class 2
impairment permitted “a rating of 18 to 25 percent with the default value being 22 percent.”4
Using the Combined Values Chart at page 604, Dr. Zimmerman found that combining 25 percent
and 25 percent resulted in a total 44 percent left upper extremity impairment.
By decision dated October 15, 2010, OWCP denied appellant’s claim for an increased
schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.8
In addressing upper extremity impairments, the sixth edition identifying the impairment
class for the diagnosed condition, which is then adjusted by grade modifiers based on GMFH,

4

A.M.A., Guides, Table 15-21, page 436.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.

8

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).

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GMPE and GMCS.9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.11
ANALYSIS
OWCP accepted the claim for left shoulder labral tear, which was subsequently expanded
to include a hemorrhage of the gastrointestinal tract and injury to the left axillary nerve. By
decision dated April 9, 2002, it issued a schedule award for 27 percent permanent impairment of
the left upper extremity. On September 2, 2005 OWCP granted appellant a schedule award for
an additional 21 percent impairment of the left upper extremity, resulting in a total 48 percent
left upper extremity impairment. In an August 18, 2010 decision, the Board found that the case
was not in posture for decision regarding the extent of his left upper extremity impairment as
clarification from OWCP’s medical adviser on the issue of whether the peripheral nerve
impairment should have been combined with the diagnosis-based impairment rating was
required.
On remand, Dr. Zimmerman clarified with specificity that each of the characteristics of
peripheral nerve impairment had been appropriately considered in the DBI ratings. He noted that
“weakness was a manifestation of the axillary nerve injury and ... was considered with the earlier
ratings.” Further, Dr. Zimmerman noted that atrophy of the deltoid “could and would be due to
range of motion limitations of a chronic nature which over time would yield disuse atrophy
and/or be due to the denervation of the deltoid due to the axillary nerve injury.” His report
provided adequate clarification that any impairment due to the axillary nerve was adequately
considered under the DBI method of impairment rating. To do otherwise would create
duplication or unwarranted increase in the impairment estimate.
The Board finds OWCP properly developed this aspect of the claim and finds it properly
denied any increased schedule award benefits.
CONCLUSION
The Board finds that appellant has no more than 48 percent permanent impairment of the
left upper extremity.

9

A.M.A., Guides (6th ed. 2009) at 494-531, see J.B., Docket No. 09-2191 (issued May 14, 2010).

10

Id. at 521

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010). See Frantz Ghassan, 57 ECAB 349 (2006); C.K., Docket No. 09-2371 (issued
August 18, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 15, 2010 is affirmed.
Issued: October 27, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Tulsa, OK, Employer
__________________________________________

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

Docket No. 20-1528
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On August 20, 2020 appellant, through counsel, filed a timely appeal from a July 15, 2020
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 met her burden of proof to establish that she sustained
an injury in the performance of duty on March 10, 2017, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 10, 2017 appellant, then a 60-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that, at approximately 12:00 p.m. on that date, her
knees and wrists were scratched, bloodied and swollen when she tripped on uneven pavement
when she was walking to work while in the performance of duty. A coworker, S.G., provided a
statement on the Form CA-1 noting that while walking to work on March 10, 2017 she saw
appellant lying on the ground under the covered sidewalk on B side parking. Appellant informed
S.G. that she tripped on the sidewalk. On the reverse side of the claim form, the employing
establishment controverted the claim contending that appellant was not in the performance of duty
when she was injured, as the incident occurred before the start of her work shift, she was off
premises and was not engaging in official duties. It noted that her work schedule was 12:00 p.m.
to 8:30 p.m., Tuesday through Saturday. Appellant did not stop work.
In a March 20, 2017 development letter, OWCP advised appellant of the deficiencies of
her claim. It informed her of the type of factual and medical evidence needed to establish her
claim and provided her with a factual questionnaire for her completion. In a separate development
letter of even date, OWCP requested that the employing establishment provide information
regarding the location and time of appellant’s injury. It afforded both parties 30 days to submit
the requested information.4
OWCP received medical evidence, including treatment notes dated March 13, 2017 from
Dr. Homer Hardy, an osteopath, diagnosing contusions of both knees.
On March 23, 2017 the employing establishment controverted appellant’s claim, asserting
that appellant’s injury occurred at 11:56 a.m. on March 10, 2017, but that her work shift did not
3

Docket No. 18-0617 (issued February 13, 2019).

4
Appellant submitted numerous reports to the record dating from March 10, 2017. On April 7 and 25, and June 26,
2017 Dr. Robert Coye, a Board-certified internist, diagnosed right medial knee pain. On May 9 and 30, June 1 and 6,
and July 18, 2017 Dr. James D. Cash, a Board-certified orthopedic surgeon, diagnosed bilateral knee contusions. On
June 2, 2017 Dr. Kelly Lindauer, a Board-certified diagnostic radiologist, reviewed appellant’s magnetic resonance
imaging (MRI) scan and found tear of the medial meniscus, chondromalacia, and effusion. Dr. Thomas Kern, a Boardcertified internist, examined appellant on July 31, 2017 and diagnosed derangement of medial meniscus of both knees.
Dr. Seth Migdalski, a psychiatrist, examined appellant on October 30, 2017 for emotional conditions. Appellant also
submitted numerous reports from Timothy Marlow, Chad Perkins, Dianne Briscoe, and Eve Fitzpatrick, physician
assistants, as well as notes from Whitney Ellsworth, a physical therapist. See M.M., Docket No. 17-1641 (issued
February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018).

2

begin until 12:00 p.m. It noted that she had not clocked in for duty and was not in any work
location when the injury occurred. The employing establishment reported that it did not own,
lease, or maintain the area where appellant’s injury occurred. It further noted that it did not direct
her to park her car in any of the various public parking lots that surrounded her duty station. J.M.,
an AirServ supervisor, witnessed appellant’s fall and described the location as occurring on the
sidewalk coming up from B side parking.
By decision dated April 25, 2017, OWCP denied appellant’s traumatic injury claim finding
that the evidence submitted was insufficient to establish that she was injured in the performance
of duty. It found that she was not reasonably fulfilling the duties of her employment or doing
something incidental thereto at the time of her injury, that she had not begun her tour of duty, and
was walking on a public sidewalk toward the employing establishment. OWCP noted that under
FECA, an employee who is injured off premises while commuting to work is not in the course of
employment.
On May 4, 2017 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In an e-mail to counsel dated July 16, 2017, appellant reported that she fell on the sidewalk
between the employee parking lot and the employing establishment office. She noted that she paid
for parking with the Green Option Commuter Card (For Federal Government Transit Subsidy Use
Only). Appellant’s card allotted $240.00 and she paid parking costs of $135.00 every six months.
She indicated that she would fax counsel a copy of the employer-paid parking receipt from
July 14, 2017.
In a letter dated July 31, 2017, counsel indicated that he was providing OWCP with medical
records, physical therapy notes, and a “copy of the receipt and the subsidized public transportation
pass paid for by the employing agency.”
Appellant testified during an oral hearing on October 6, 2017 before an OWCP hearing
representative. She alleged that she was required to wear a uniform for her position, but that the
employing establishment regulated the activities she could perform in uniform. Appellant testified
that the employing establishment rented a portion of the airport parking lot for its employees and
assigned them a place to park. The employing establishment required employees to go straight
from the parking lot to the employing establishment without diversion. Appellant asserted that her
parking was fully paid for by the employing establishment, and that she had to park in an assigned
area otherwise her car would be booted. She noted that the employing establishment provided her
with a commuter payment card and a placard for her car. Appellant testified that there was only
one sidewalk from the parking lot to her duty station and that no other route was available. She
noted that the parking area in question was encircled by a six-foot fence and that she had a badge
for that parking area. Appellant again alleged that she could not enter the employing establishment
from another parking location. She noted that other airport employees parked in the fenced lot
including pilots and stewardesses. Counsel contended that it was not plausible that the employing
establishment was not in control of the area as they paid for parking and that there was only one
entrance that appellant could utilize to get to her duty station.

3

On December 5, 2017 the employing establishment terminated appellant’s employment. It
noted that her appointment was subject to completion of a two-year trial period. The termination
was noted to promote the efficiency of the service and was primarily based on her extensive use
of leave.
By decision dated December 18, 2017, OWCP’s hearing representative found that
appellant was injured on the sidewalk between the off-premises parking lot and the worksite. She
noted that there was no evidence that the employing establishment controlled or maintained the
area where the fall occurred. OWCP’s hearing representative determined that the facts did not
establish an exception to the premises rule and that appellant’s injury did not arise out of and in
the course of her federal employment.
Appellant, through counsel, appealed to the Board. In its February 13, 2019 decision, 5 the
Board set aside the December 18, 2017 decision and found that the case was not in posture for
decision as OWCP had not properly developed the factual evidence to establish whether the
secured parking facility and the covered sidewalk were in control of the employing establishment
such that appellant was on the premises when injured. The Board remanded the case for further
development and a de novo decision.
In an April 2, 2019 development letter, OWCP requested that the employing establishment
provide a diagram demonstrating the boundaries of its premises and the location of appellant’s
injury site in relation to those premises.
On April 16, 2019 the employing establishment submitted several photographs with
notations identifying parking lot B, the sidewalk maintained by the Tulsa Airport Authority,
identified as the general area where appellant fell, and the employees’ entrance.
In an April 24, 2019 e-mail, OWCP requested that the employing establishment respond to
the remainder of the questions posed by the Board. In response, the employing establishment
reported that appellant was not required to park in parking lot B. It further noted that there were
various locations where she could have chosen to park, as parking lot A and B were open to all
employees that worked at the airport and maintained by American Parking. The employing
establishment further noted that there was an additional American Parking lot, and a lot maintained
by Fine Parking. It reported that parking lot B was opened to all employees of the airport, not just
its employees; however, it was not open to the general traveling public. The employing
establishment noted that it provided a parking subsidy to appellant, not a specific parking space,
and that she could have chosen not to accept it. It reported that she was not assigned to parking
lot B, that it did not assign or provide parking, but that it provided an optional subsidy to help to
pay for parking. The employing establishment denied responsibility for monitoring or inspecting
the parking lots for security purposes and added that it did not pay a third party for those services.
It reported that the covered sidewalk where appellant fell was the normal route that she would have
traveled after parking in lot B.
By decision dated May 16, 2019, OWCP denied appellant’s traumatic injury claim finding
that her injury did not occur in the performance of duty as she was not on the employing
5

Supra note 2.

4

establishment premises at the time her injury occurred. On May 21, 2019 appellant, through
counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and
Review, which was held on August 27, 2019.
Appellant testified before an OWCP hearing representative and asserted that the general
public did not park in lot B. She further asserted that the general public did not use the sidewalk
where she fell, that it was the only way to get from parking lot B to the building, and that she paid
more to park in lot B as it was closer to her duty station than lot A. Appellant reported that there
was no mass public transit to the airport, only taxis or other automobile-based modes of transport.
By decision dated October 3, 2019, OWCP’s hearing representative vacated the May 16,
2019 decision. She remanded the case and directed OWCP to ascertain whether the employing
establishment was accessible to employees via public transportation and whether any employees,
in fact, traveled to work using public transportation.
On October 17, 2019 appellant provided a link to the Tulsa Transit System and noted that
it did not list the airport as a destination.
In a letter dated November 15, 2019, the employing establishment reported that the Tulsa
Transit System provided public transportation to and from the airport. It was located curbside
outside of baggage claim. The employing establishment noted that only one employee had utilized
this form of transportation. It also noted that taxi, other private vehicle transport, and airport
shuttle services were provided by the parking companies.
By decision dated December 31, 2019, OWCP denied appellant’s claim finding that she
was not injured in the performance of duty. On January 6, 2020 appellant, through counsel,
requested an oral hearing from a representative of OWCP’s Branch of Hearings and Review, which
was held on May 14, 2020.
Appellant testified before an OWCP hearing representative and asserted that at the time of
her injury on March 10, 2017 there was no public transportation available to the employing
establishment due to construction on the airport premises. Ap pellant alleged that she had no choice
but to park in a lot at the airport. She noted that Tulsa had instituted a new bus service in 2019,
the Aero bus. Appellant testified that she was not currently working due to her knee conditions
and had undergone surgery on one knee.
By decision dated July 15, 2020, OWCP’s hearing representative found that there were
public parking lots available to appellant, that she chose to park in lot B, even though it was more
expensive, and that the employing establishment did not contract for parking lot B, maintain it,
police it, or otherwise demonstrate any control over parking lot B or the walkway where appellant
fell. He noted that were other means of ingress to the work facility, particularly those routes from
lot A, such that the walkway were appellant fell was not the only access to work. OWCP’s hearing
representative found that appellant was not on the premises when her March 10, 2017 injury
occurred and was, therefore, not in the performance of duty.

5

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 6 that an injury was sustained in the performance of duty as alleged and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury. 7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 8
The phrase “sustained while in the performance of duty”9 Has been interpreted by the
Board to be the equivalent of the commonly found prerequisite in workers’ compensation law of
“arising out of and in the course of employment.”10 To arise in the course of employment,11 in
general, an injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in the master’s business; (2) at a place where he or she may reasonably be expected to be
in connection with the employment; and (3) while he or she was reasonably fulfilling the duties of
her employment or engaged in doing something incidental thereto.12
It is well established as a general rule of workers’ compensation law that, as to employees
having fixed hours and places of work, injuries occurring on the premises of the employing
establishment, while the employees are going to or from work, before or after working hours or at
lunch time, are compensable13 but if the injury occurs off the premises, it is not compensable,
subject to certain exceptions. The Board has previously found that the term “premises” as it is
generally used in workers’ compensation law, is not synonymous with “property” because it does
not depend solely on ownership. The term “premises” may include all the property owned by the
employing establishment. In other instances, even if the employing establishment does not have

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); Kathryn Haggerty, 45 ECAB
383, 388 (1994); James E. Chadden, Sr., 40 ECAB 312 (1988).
8

See S.B., supra note 6; Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

9

5 U.S.C. § 8102(a); S.S., Docket No. 20-1349 (issued February 16, 2021); J.K., Docket No. 17-0756 (issued
July 11, 2018).
10

This construction makes the statute actively effective in those situations generally recognized as properly
within the scope of workers’ compensation law. J.K., id.; Bernard D. Blum, 1 ECAB 1 (1947).
11

See L.P., Docket No. 17-1031 (issued January 5, 2018).

12

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

13

L.P., supra note 11; Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general
rule of workers’ compensation law in circumstances where the employee was on an authorized break. See Eileen R.
Gibbons, 52 ECAB 209 (2001).

6

ownership and control of the place of injury, the place may nevertheless still be considered part of
the premises. 14
The Board has also held that the factors, which determine whether a parking area used by
employees may be considered part of the employing establishment’s premises include whether the
employing establishment contracted for the exclusive use by its employees of the parking area,
whether parking spaces in the area were assigned by the employing establishment to its employees,
whether the parking areas were checked to see that no authorized cars were parked in the area,
whether parking was provided without cost to the employees, whether the public wa s permitted to
use the area, and whether other parking was available to the employees. Mere use of a parking
facility alone is insufficient to bring the parking area within the premises of the employing
establishment. The premises doctrine is applied to those cases where it is affirmatively
demonstrated that the employing establishment owned, maintained, or controlled the parking
facility, used the facility with the owner’s special permission, or provided parking for its
employees. 15
As noted above, there are exceptions to the premises rule, and one is the proximity
exception, which allows constructive extension of the premises to those hazardous conditions,
which are proximate to the premises and may, therefore, be considered as hazards of the
employment.16 Underlying the proximity exception is the principle that course of employment
should extend to an injury that occurred at a point where the employee was within the range of
dangers associated with the employment. 17 The most common ground of extension is that the offpremises point at which the injury occurred lies on the only route, or at least on the normal route,
which employees must traverse to reach the premises, and that, therefore, the special hazards of
that route become the hazards of the employment. 18 This exception contains two components.
The first is the presence of a special hazard at the particular off-premises point. The second is the
close association of the access route with the premises, so far as going and coming are concerned.19

14

S.S., supra note 9; C.L., Docket No. 19-1985 (issued May 12, 2020); Wilmar Lewis Prescott, 22 ECAB 318,
321 (1971).
15

Federal (FECA) Procedure Manual, Part 2 - Claims, Performance of Duty, Chapter 2.804.(4)(f) (August 1992);
C.L., id.; R.K., Docket No. 18-1269 (issued February 15, 2019); Diane Bensmiller, 48 ECAB 675 (1997); Rosa M.
Thomas-Hunter, 2 ECAB 500 (1991); see also Edythe Erdman, 36 ECAB 597 (1985); Karen A. Patton, 33 ECAB
487 (1982); R.M., Docket No. 07-1066 (issued February 6, 2009).
16

D.K., Docket No. 11-1029 (issued February 1, 2012).

17

See J.K., supra note 9; Jimmie Brooks, 54 ECAB 248 (2002); Syed M. Jawaid, 49 ECAB 627 (1998).

18

Arthur & Lex Larson, The Law of Workers’ Compensation § 13.01(3). See also J.K, supra note 9; R.O., Docket
No. 08-2088 (issued May 18, 2009).
19

Id. at § 13.01(3)(b); L.P., supra note 11; Wilmar Lewis Prescott, supra note 14. Another exception to the rule is
the proximity rule, which the Board has defined by as where, under special circumstances, the industrial premises are
constructively extended to hazardous conditions, which are proximately located to the premises and may, therefore,
be considered as hazards of the employing establishment. The main consideration in applying the rule is whether the
conditions giving rise to the injury are causally connected to the employment. See William L. McKenney, 31 ECAB
861 (1980).

7

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on March 10, 2017, as alleged.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s December 18, 2017 merit decision because
the Board considered that evidence in its February 13, 2019 decision. Findings made in prior
Board decisions are res judicata absent any further review by OWCP under section 8128 of
FECA.20
The Board has held that the premises of the employer are generally extended when an
employee must travel a public thoroughfare to traverse between two premises of the employer. 21
In order to determine whether the covered sidewalk between the employing establishment and
parking lot B, where appellant’s March 10, 2017 fall occurred, should be considered part of the
employing establishment’s premises, the Board must first consider the factors necessary to
determine whether parking lot B was under sufficient control of the employing establishment to
constitute its premises.22 As noted above, in determining whether a parking lot or garage should
be considered part of the employing establishment’s premises, the Board must consider such
factors as whether the employing establishment contracted for its exclusive use by its employees,
whether the employing establishment assigned parking spaces, whether the parking area was
checked to see that no unauthorized cars were parked in the parking area, whether the public was
permitted to use the parking area, whether parking was provided without cost to the employees,
and whether other parking was available to the employees. 23
The Board finds that appellant has not established that parking lot B, was exclusively or
principally used by employees of the employing establishment. Appellant and the employing
establishment have agreed that parking lot B was open to airport employees as well as those of the
employing establishment. The parties agree that the employing establishment did not assign the
space or the lot in which appellant parked. Both parties also agree that appellant could have parked
in lot A or B or in other public parking locations at the airport. Appellant chose to park in lot B as
it was closest to the employing establishment entrance and paid a premium above the parking
subsidy allotment provided to her to park in that lot.24 While she noted that parking lot B was the

20

See B.R., Docket No. 17-0294 (issued May 11, 2018); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998); see
also 20 C.F.R. § 501.6(d).
21

R.B., Docket No. 11-1320 (issued September 5, 2012).

22

R.E., Docket No. 18-0515 (issued February 18, 2020).

23

C.L., supra note 14.

24

C.B., Docket No. 12-1849 (issued January 13, 2014).

8

nearest option for all employees, she has not provided any relevant evidence to establish that she
was required to park in that parking lot or assigned specific parking space. 25
As parking lot B was not a part of the employing establishment premises, and as app ellant
was not required to park there, the off-premises point at which the injury occurred, the covered
sidewalk, does not lie on the only route or on the normal route, which employees must traverse to
reach the premises, such that the special hazards of that route become the hazards of the
employment. 26 The record reveals that there were multiple places that appellant could park on the
airport premises and, therefore, multiple ways that she could have accessed her workplace. She
did not establish within the meaning of FECA, that there were hazardous conditions proximately
located to the premises, which would establish a constructive extension.27 Rather appellant’s act
of tripping on uneven pavement was a hazard common to all travelers on the sidewalk and was not
causally related to her employment. 28 Thus, her injury constitutes an ordinary nonemployment
hazard of the journey itself, shared by all travelers. 29
As the record fails to support the application of an exception to the off -premises rule, the
Board finds that appellant did not meet her burden of proof to establish that she sustained an injury
in the performance of duty on March 10, 2017.30
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on March 10, 2017, as alleged.

25

J.B., Docket No. 17-0378 (issued December 22, 2017).

26

See F.S., Docket No. 09-1573(issued April 6, 2010) (finding that although the crosswalk where the claimant was
injured may have been the normal route to reach the employing establishment from the short-term lot, the claimant
was not required to park in the short-term lot and, by extension, was not required to use the crosswalk).
27

D.B., Docket No. 13-0510 (issued June 10, 2013).

28

F.S., supra note 26.

29

Id.

30

See Jon Louis Van Alstine, 56 ECAB 136 (2004). See also Linda S. Jackson, 49 ECAB 486 (1998).

9

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Barbourville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0253
Issued: March 24, 2022

Case Submitted on the Record

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

JURISDICTION
On December 10, 2020 appellant filed a timely appeal from a November 16, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $5,022.00 for the period May 26, 2019 through February 29, 2020 for which he was
without fault, because of an underwithholding of optional life insurance (OLI) premiums from his
FECA compensation; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 18, 2016 appellant, then a 62-year-old underground mine safety and health
inspector, filed a traumatic injury claim (Form CA-1) alleging that on October 13, 2016 he injured
his neck when he slipped and fell onto a mine floor while in the performance of duty. OWCP
accepted the claim for strain of muscle(s) and tendon(s) of the right shoulder rotator cuff (tear) and
later expanded the acceptance of the claim to include aggravation of radiculopathy and spinal
stenosis of the cervical region. It paid appellant wage-loss compensation on the supplemental
rolls, effective November 17, 2016, and then on the periodic rolls effective September 17, 2017.
In a September 27, 2017 letter, OWCP outlined appellant’s entitlement to compensation
benefits. It advised him that it was making deductions for health insurance benefits, basic life
insurance (BLI), and OLI premiums (in the amount of $421.20) from his compensation payments
every 28 days.
On February 25, 2020 the Office of Personnel Management (OPM) informed OWCP that
as a compensationer appellant was eligible to continue Federal Employees’ Group Life Insurance
(FEGLI) coverage in the form of basic, postretirement basic life insurance (PRBLI), and OLI
coverage. The final base salary on which FEGLI was based was $92,316.00. OPM requested
OWCP to deduct for code X0 basic Option A for 75 percent reduction and Option B times five
with no reduction. It noted that appellant’s PRBLI reduction commenced on October 14, 2017.
OPM forwarded an Option B election form that appellant signed on February 14, 2020 freezing all
of his Option B (additional) life insurance at the value as of age 65, to continue for life.
In a preliminary overpayment determination dated April 9, 2020, OWCP notified appellant
that he had received an overpayment of compensation in the amount of $10,819.00 because OLI
and PRBLI premiums after he reached age 65 had not been properly deducted from his FECA
compensation for the period October 14, 2017 through February 29, 2020. It provided an
overpayment calculation. OWCP further advised appellant of its preliminary determination that
he was not at fault in the creation of the overpayment and requested that he complete an
overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20).
Additionally, it notified him that within 30 days of the date of the letter, he could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
In a memorandum of telephone call (Form CA-110) dated April 30, 2020, appellant
informed OWCP that OPM had advised him that he had paid BLI and OLI premiums up to age
65. However, deductions should have continued to have been made as of 2019 when he turned 65
years old and not in 2017 as indicated in OPM’s February 25, 2020 letter.
In a May 11, 2020 amended overpayment referral, OWCP noted that its compensation
history records showed that appellant had paid OLI premiums up to May 25, 2019 and that
deductions for OLI and PRBLI premiums began on March 1, 2020. It further noted that the
overpayment occurred from May 26, 2019 to February 29, 2020, 10 periodic roll cycles. As
appellant’s premium for OLI after age 65 was $502.20 every 28-day cycle, the total overpayment
was $5,022.00.

2

OWCP, in a corrected preliminary overpayment determination also dated May 11, 2020,
informed appellant that he had received an overpayment of compensation in the amount of
$5,022.00 because OLI premiums had not been properly deducted after he turned 65 years old on
May 12, 2019 from his FECA compensation for the period May 26, 2019 through
February 29, 2020. It provided an overpayment calculation. OWCP again found that appellant
was not at fault in the creation of the overpayment and requested that he complete an overpayment
action request form containing appeal rights and a Form OWCP-20 and submit supporting
documentation including copies of tax returns, bank account statements, bills and cancelled
checks, pay slips, and other records which supported the income and expenses listed. It again
notified him that he could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing. OWCP advised that, under 20 C.F.R. § 10.438, failure to
submit the requested information within 30 days would result in a denial of waiver of recovery of
the overpayment. However, no financial information was submitted by appellant.
On June 8, 2020 appellant requested a telephonic prerecoupment hearing, which was held
on August 31, 2020. He contested the fact and amount of the overpayment and requested waiver
of recovery of the overpayment. Appellant asserted that he was subject to double jeopardy as
OWCP had vacated the initial preliminary overpayment determination, admitted error, but had
thereafter issued a new preliminary overpayment determination. He also indicated that he had
alerted OWCP that premiums were not being withheld properly from his FECA compensation.
By decision dated November 16, 2020, an OWCP hearing representative finalized the
May 11, 2020 preliminary overpayment determination that appellant had received an overpayment
of compensation in the amount of $5,022.00 for the period May 26, 2019 through February 29,
2020, for which he was without fault, because OWCP had failed to deduct OLI premiums after he
reached age 65 from his compensation payments. He found that issuance of a corrected decision,
reducing the amount of the overpayment, did not constitute double jeopardy. The hearing
representative noted the rates of FEGLI premiums effective January 1, 2016. For option B (per
$1,000 of insurance), the bi-weekly premium for age band 65-69 was .54. Based on his rounded
final salary of $93,000.00 and 5x multiple election, appellant was insured for $465,000.00. The
hearing representative further calculated that twice the bi-weekly rate of .54 was 1.08 and
multiplied by 465 equaled a 28-day premium of $502.20. He denied waiver of recovery of the
overpayment as no financial evidence had been submitted in response to the May 11, 2020
preliminary overpayment determination, as requested. Because OWCP did not have the necessary
financial information to determine an equitable monthly repayment amount, the hearing
representative ordered recovery of the overpayment in full within 30 days. Appellant was directed
to contact OWCP if he wished to enter into a monthly repayment agreement.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the options. 2 The coverage for BLI is effective unless
waived,3 and premiums for basic and optional life coverage are withheld from the employee’s
2

5 U.S.C. § 8702(a).

3

Id. at § 8702(b).

3

pay.4 Upon retirement or upon separation from the employing establishment or being placed on
the FECA periodic compensation rolls, an employee may choose to continue BLI and OLI
coverage in which case the schedule of deductions made will be used to withhold premiums from
his or her annuity or compensation payments.5 BLI coverage shall be continued without cost to
an employee who retired or began receiving compensation on or before December 31, 1989;6
however, the employee is responsible for payment of premiums for OLI coverage which is
accomplished by authorizing withholdings from his or her compensation.7
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing n o life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium). 8 When an underwithholding of life insurance premiums occurs, the entire
amount is deemed an overpayment of compensation because OWCP must pay the full premium to
OPM upon discovery of the error.9
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of duty. 10 When
an overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which the individual is entitled. 11

4

Id. at § 8707.

5

Id. at § 8706.

6

Id. at § 8707(b)(2).

7

Id. at § 8706(b)(3)(B). See J.H., Docket No. 20-0281 (issued May 18, 2021); B.B., Docket No. 17-1733 (issued
March 26, 2018).
8

See I.J., Docket No. 19-1672 (issued March 10, 2020); C.A., Docket No. 18-1284 (issued April 15, 2019); James J.
Conway, Docket No. 04-2047 (issued May 20, 2005).
9

5 U.S.C. § 8707(d); see also B.B., supra note 7.

10

Id. at § 8102(a).

11

Id. at § 8129(a).

4

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault,
because of an underwithholding of OLI premiums from his FECA compensation.
OPM notified OWCP that on February 14, 2020 appellant had elected to freeze all of his
Option B additional life insurance at the value as of age 65. OWCP found that appellant had paid
OLI premiums up to May 25, 2019 when he reached the age of 65 on May 12, 2019 and that
deductions for these premiums began on March 1, 2020, but that it did not deduct the proper
amounts of OLI premiums from appellant’s wage-loss compensation benefits for the period
May 26, 2019 through February 29, 2020. It calculated the amount of the resulting overpayment
as $5,022.00. The record contains compensation payment records, as well as an overpayment
worksheet explaining the overpayment calculation and how the overpayment occurred. While in
compensationer status, appellant remained responsible for all insurance benefits, including the
premiums for OLI at whatever option he or she had selected. 12 Moreover, as noted, when an
underwithholding of life insurance premiums occurs, the entire amount is deemed an overpayment
of compensation because OWCP must pay the full premium to OPM upon discovery of the error. 13
The Board thus finds that OWCP properly determined the fact and amount of the
overpayment. As OWCP failed to properly deduct OLI premiums for the period May 26, 2019
through February 29, 2020, appellant received an overpayment of $5,022.00 during this period. 14
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 15
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 16 Additionally, recovery of an
12

5 C.F.R. § 870.504(b); S.P., Docket No. 17-1888 (issued July 18, 2018).

13

5 U.S.C. § 8102.

14

See J.H., supra note 7; I.J., supra note 8; D.H., Docket No. 19-0384 (issued August 12, 2019); R.W., Docket No.
19-0451 (issued August 7, 2019).
15

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
16

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(2) (September 2020).

5

overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 17
OWCP’s regulations provide 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 of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 18 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The fact that a claimant is without fault in the creation of an overpayment does not preclude
OWCP from recovering the overpayment. 20 As OWCP found appellant without fault in the
creation of the overpayment, waiver must be considered, and repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience. 21 Appellant, however, has the responsibility to provide the appropriate
financial information and documentation to OWCP.22
In its preliminary overpayment determination dated May 11, 2020, OWCP explained the
importance of providing the completed Form OWCP-20 and financial information, including
copies of income tax returns, bank account statements, bills, pay slips, and any other records to
support income and expenses. It advised appellant that it would deny waiver of recovery if he
failed to furnish the requested financial information within 30 days. Appellant, however, did not
respond. As such, OWCP did not have the necessary financial information to determine if recovery
of the overpayment would defeat the purpose of FECA or if recovery would be against equity and
good conscience.23

17

Id. at § 10.437(a)(b).

18

Id. at § 10.438(a).

19

Id. at § 10.438(b).

20

See George A. Rodriguez, 57 ECAB 224 (2005); Joyce O. Diaz, 51 ECAB 124 (1999).

21

20 C.F.R. § 10.436.

22

Id. at § 10.438; see also N.J., Docket No. 19-1170 (issued January 10, 2020); S.M., Docket No. 17-1802 (issued
August 20, 2018).
23

J.H., supra note 7; D.H., supra note 14.

6

As appellant did not submit the information required under 20 C.F.R. § 10.438, which was
necessary to determine his eligibility for waiver, the Board finds that OWCP properly denied
waiver of recovery of the overpayment. 24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault,
because of an underwithholding of life insurance premiums. The Board further finds that OWCP
properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

24

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Z., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL INSTITUTE OF
HEALTH, NATIONAL INSTITUTE OF
ENVIRONMENTAL HEALTH SERVICES,
Research Triangle Park, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)
)

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

Docket No. 16-0034
Issued: February 25, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 8, 2015 appellant filed a timely appeal from a September 2, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last merit decision of April 2, 2015 and the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that OWCP should have accepted her claim for left hand
osteoarthritis as her prior claim for right hand osteoarthritis was accepted. She contended that
after she injured her right hand she started using her left hand to perform her duties and that her
x-rays showed similar osteoarthritis in both hands.
FACTUAL HISTORY
On November 18, 2014 appellant, then a 60-year-old biologist, filed an occupational
disease claim (Form CA-2) alleging that as a result of using a pipette repeatedly with her left
hand, she developed swelling, soreness, and pain in her left wrist joint.
OWCP received a statement from the employing establishment on December 15, 2014
which noted that appellant had not stopped work after she filed her claim. It was noted that her
work as a biologist required hand pipetting on a regular basis. Appellant had been provided
equipment to accommodate her alleged injury by reducing stress on her thumb, wrist, and that
her workload had been reduced.
Appellant submitted a December 18, 2014 note from Johanna Mencel, a physician
assistant, which acknowledged that appellant had been seen on that day for wrist pain.
By decision dated December 31, 2014, OWCP denied appellant’s claim. It determined
that she had not established a medical diagnosis nor had she established that any medical
condition was causally related to established work events.
On March 23, 2015 appellant filed a reconsideration request. In support of her claim, she
resubmitted the December 18, 2014 note signed by Ms. Mencel, but this note had been
countersigned by Dr. Marshall Kuremsky, a Board-certified orthopedic surgeon. This note
indicated that appellant was seen on December 18, 2014 and diagnosed with localized primary
osteoarthritis of her wrist. Appellant also submitted an accompanying encounter report signed
by Ms. Mencel noting that appellant had received treatment for her left wrist. This report noted
that appellant had complained of left wrist pain and had been having difficulty with range of
motion since October 2014. Appellant had denied injury or trauma, but she noted that she
worked as a scientist and performed repetitive hand motions with a pipette. She had experienced
right hand pain earlier in August 2013 and had then used her left hand more frequently.
By decision dated April 2, 2015, OWCP reviewed appellant’s claim on the merits, found
that appellant had now established a diagnosis of localized osteoarthritis of the left forearm/wrist,
but indicated that the case remained denied because the medical evidence failed to establish the
causal relationship to her work factors.
On June 10, 2015 appellant again requested reconsideration. In support of her
reconsideration request, she submitted a June 10, 2015 note from Dr. Kuremsky indicating that
appellant was treated for localized primary osteoarthritis of the wrist, and was able to work full
duty. Appellant also submitted an encounter summary report by Dr. Kuremsky, also dated
June 10, 2015, wherein he noted that she was a scientist in a laboratory and performed a lot of
repetitive pipetting. Dr. Kuremsky opined that appellant had localized primary osteoarthritis of

2

the wrist and osteoarthrosis of the carpometacarpal joint of the thumb. He further noted that she
would be filing a workers’ compensation claim.
By decision dated September 2, 2015, OWCP denied reconsideration without conducting
a merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 When a claimant fails to meet one
of the above standards, OWCP will deny the application for reconsideration without reopening
the case for review on the merits.4
ANALYSIS
OWCP found that appellant had established that she worked as a biologist, and performed
repetitive pipetting with her hands. It also accepted that she had been diagnosed with localized
osteoarthritis of the left forearm/wrist. However, OWCP denied appellant’s claim because she
had not submitted medical evidence establishing a causal relationship between the osteoarthritis
in the left forearm/wrist and the accepted factors of her federal employment.
The last merit decision in this case was OWCP’s April 2, 2015 decision. The Board’s
jurisdiction is restricted to reviewing OWCP decisions issued within 180 days of appellant’s
October 8, 2015 date of filing for this appeal. Accordingly, the Board lacks jurisdiction to
review the April 2, 2015 merit decision.5
Causal relationship is a medical issue and must be established by rationalized medical
evidence.
When appellant requested reconsideration on June 10, 2015 she submitted a new medical
report from Dr. Kuremsky, wherein he noted a diagnosis of localized primary osteoarthritis of
the wrist and osteoarthrosis of the carpometacarpal joint of the thumb. The Board notes that the
conclusions in Dr. Kuremsky’s report of June 10, 2015 are largely repetitive of previously
submitted medical evidence. The Board has held that evidence that is repetitive and duplicative
of evidence previously of record is insufficient to warrant further merit review.6
2

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.608(b).

5

Id. at § 501.3(e).

6

D.K., 59 ECAB 141 (2007); see also L.K., Docket No. 14-1722 (issued September 29, 2015).

3

Appellant submitted statements wherein she argued that her left wrist/forearm condition
was causally related to her federal employment duties. However, as the underlying issue is
medical in nature, medical evidence addressing causal relationship must be submitted.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, has not advanced a relevant legal argument not previously
considered by OWCP, and has not submitted relevant and pertinent new evidence not previously
considered by OWCP. Accordingly, the Board finds that she did not meet any of the necessary
requirements and is not entitled to further merit review.7
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 2, 2015 is affirmed.
Issued: February 25, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

See L.H., 59 ECAB 253 (2007).

4