United States Department of Labor
Employees’ Compensation Appeals Board

L.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
San Antonio, TX, Employer
_________________________________________

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

Docket No. 13-859
Issued: August 16, 2013

Case Submitted on the Record

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

JURISDICTION
On February 26, 2013 appellant filed a timely appeal from the January 25, 2013 decision
of the Office of Workers’ Compensation Programs(OWCP).Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained more
than 57 percent bilateral hearing loss, for which he received a schedule award.
FACTUAL HISTORY
On April 10, 2012 appellant, then a 42-year-old customs and border protectionofficer,
filed an occupational disease claim for hearing loss that he attributed to factors of his
1

5 U.S.C. § 8101 et seq.

employment. He first became aware of his condition on October 19, 2011 and realized that it
was caused or aggravated by his employment on November 12, 2011. Appellant did not stop
work.
On May 21,2012 appellant requested a schedule award.He submitted a March 21, 2012
report and audiogram from Dr. Rafael Arredondo, a Board-certified otolaryngologist. The
audiogram noted hearing levels of 70, 70, 65 and 65 decibels in the right ear and 40, 45, 40 and
40 decibels in the left ear at hertz (Hz) levels of 500, 1,000, 2,000 and 3,000 respectively.
Audiograms of October 19 and November 21, 2011 showed lower levels of hearing loss.
By letter dated September 6, 2012, OWCPreferred appellant for a second opinion,
together with a statement of accepted facts, to Dr. Gregory S. Rowin, a Board-certified
otolaryngologist.2
In a report dated October 2, 2012, Dr. Rowinreviewed appellant’s history of noise
exposure and medical treatment. He explained that appellant was seen for evaluation of his
hearing, which slowly worsened over the past 15 years. Appellant workedaround loud noises in
the course of his employment and was encouraged to wear ear protection. On examination, the
audiological test revealed bilateral neurosensory hearing loss down to a four tone average of
about 70 decibels, a little worse in the right ear, but with fair good speech discrimination.
Appellant’s ears appeared normal, thetympanic membranes were intact and external auditory
canals were within normal limits. Dr. Rowin opined that appellant had bilateral neurosensory
hearing loss down a four tone average of about 35 decibels with good speech discrimination.
Henoted that appellant had sensorineural hearing loss in excess of what would normally result
from presbycusis. Dr. Rowin opined that the workplace noise exposure caused the hearing loss.
For the left ear, there was moderate-to-severe sensorineural hearing loss and, for the right ear,
severe-to-profound sensorineural hearing lossfrom loud noise exposure. Dr. Rowin
recommended ear protection and binaural hearing aids. He advised that an audiological
evaluation was performed to include audio and tympanograms.3 The audiometric testing
ofOctober 2, 2012 revealed hearing levels of 75, 70, 80 and 85 decibels in the right ear and 50,
50, 60 and 65 decibels in the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz
respectively. Auditory discrimination scores were 72 percent in the right ear and 80 percent in
the left ear. Dr. Rowin calculated that appellant sustained 78.75 percent monaural hearing
impairment in the right ear and 46.87 percent monaural hearing impairment in the left ear. He
calculated binaural hearing impairment and added five percent impairment for tinnitus that
impacted the ability to perform activities of daily living. Dr. Rowin concluded that appellant had
a total of 57.1 percent binaural hearing impairment.He noted a maximum medical improvement
date of October 2, 2012.
On October 18, 2012 OWCP referredthe medical record to an OWCP medical adviser for
an impairment rating in accordance with the American Medical Association,Guides to the
2

In a statement of accepted facts, OWCP indicated that appellant was exposed to noise from gas and diesel
engines, trains and a train air horn. The sources provided noise levels of unknown decibels and appellant was
exposed to such noise for eight hours per day, five days a week.
3

The audiologist indicated that the audiometer was calibrated on October 13, 2011.

2

Evaluation of Permanent Impairment,(A.M.A., Guides) (6th ed. 2008). In anOctober 18, 2012
report, Dr. Ronald H. Blumnoted appellant’s history and reviewed Dr. Rowin’s report.He agreed
that appellant reached maximum medical improvement on October 2, 2012.Under the A.M.A.,
Guides, the medical adviser noteda binaural hearing loss of52.2 percent to which he added5
percent for tinnitus, yielding a total 57.2 percent. He opined that the noise exposure on the job
was sufficient to be a contributing cause of appellant’s hearing loss and recommended hearing
aids.
By decision dated October 25, 2012, OWCP accepted appellant’s claim for bilateral
hearing loss and tinnitus.
By decision dated January 25, 2013, OWCP granted appellant a schedule award for 57
percent binaural hearing loss. The period of the award ran from October 2, 2012 to
December 8, 2014.
LEGAL PRECEDENT
The schedule award provision of FECA provides compensation to employees sustaining
permanent loss or loss of use, of specified members of the body.4 FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such a determination is a matter which results in the sound discretion of OWCP.
For consistent results and to ensure equal justice, the Board has authorized 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 OWCP for evaluating schedule losses and the Board has concurred in such
adoption.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged.7 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss.9 The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.10
4

5 U.S.C. § 8107.

5

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

6

A.M.A., Guides at 250.

7

Id.

8

Id.

9

Id.

10

Donald E. Stockstad, 53 ECAB 301 (2002); petition for recon.,granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

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Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of a disease or injury.11 It state that, if tinnitus interferes with
activities of daily living, including sleep, reading (and other tasks requiring concentration),
enjoyment of quiet recreation and emotional well-being, up to five percent may be added to a
measurable binaural hearing impairment.12
ANALYSIS
OWCP referred appellant to Dr. Rowin, a Board-certified otolaryngologist, for a second
opinion evaluation. Dr. Rowinexamined appellant, obtained audiological testing and determined
that appellant sustained a 57 percent binaural hearing impairment.Under the A.M.A., Guides
Dr. Rowin noted maximum medical improvement on October 2, 2012 and recommended hearing
protection. OWCP properly referred the medical evidence to an OWCP medical adviser for
review.
In his October 18, 2012 report, Dr. Blum concurred with the findings and conclusion of
Dr. Rowin.13 Heapplied the A.M.A., Guides to the October 2, 2012 audiogram to rate57 percent
binaural hearing loss. In accordance with page 247 of the A.M.A., Guides, the medical
adviseraveraged appellant’s hearing levels of 75, 70, 80 and 85 decibels in the right ear and 50,
50, 60 and 65 decibels in the left ear at Hz levels of 500, 1,000, 2,000 and 3,000, to find average
hearing levels of 56.25 on the left and 77.5 on the right.14 The medical adviser subtracted a
25-decibel fence,15 and multiplied the remaining balance, of 31.25 on the left and 52.5 on the
right, by 1.5 to rate a46.875 percent left ear monaural loss and 78.75 percent right ear monaural
loss.16 Herated57 percent binaural hearing loss by multiplying the lesser left ear monaural loss
of 46.875 percent by 5, adding the greater loss, 78.75 percent for the right ear and dividing this
sum by 6.17 This yielded 52.2 percent rounded down to 52 percent,18to which 5 percent for
tinnitus was added. Dr. Blum arrived at 57 percent total impairment. The Board finds thatthe
medical adviser properly applied the A.M.A., Guides in calculating that appellant sustained
57 percent binaural hearing loss.

11

See A.M.A., Guides 249.

12

Id. R.H., Docket No. 10-2139 (issued July 13, 2011); see also Robert E. Cullison, 55 ECAB 570 (2004).

13

See Hildred I. Lloyd, 42 ECAB 944 (1991).

14

A.M.A., Guides at 247.

15

The A.M.A., Guides provides that when the average of the hearing levels at 500, 1,000, 2,000 and 3,000 Hz is
25 decibels or less, the ability to hear everyday sounds under everyday listening conditions is not impaired. The
subtraction of the 25 decibel fence represents this finding. Id. at 250.
16

Id.

17

Id. at 250.

18

Impairment percentages are rounded to the nearest whole point. Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.3b (January 2010).

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Both Dr. Rowin and Dr. Blum properly applied the A.M.A., Guidesto note appellant’s
impairment. OWCP relied upon their opinions to find that appellant sustained 57 percent
binaural hearing loss.19 The Board finds that there is no evidence of greater impairment.20
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained greater than 57percent bilateral hearing loss, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT theJanuary 25, 2013decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 16, 2013
Washington, DC

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

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

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

19

See Linda Beale, 57 ECAB 429 (2006).

20

The Board notes that the audiogram performed for Dr. Arredondo did not conform to OWCP standards on
testing reliability and calibration. Seesupra note 18, Chapter 3.700.4(b)(2) (January 2010).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 14-643
Issued: July 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 29, 2014 appellant filed a timely appeal from a January 6, 2014 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 met his burden of proof to establish that he sustained a
ratable hearing loss in the performance of duty warranting a schedule award.
FACTUAL HISTORY
OWCP accepted that appellant, then a 61-year-old aviation safety inspector, sustained
bilateral sensorineural hearing loss and tinnitus causally related to factors of his federal
1

20 C.F.R. § 8101 et seq.

employment. He attributed his condition to exposure to hangar maintenance noise. Appellant
did not stop work.
OWCP referred appellant to Dr. Richard Seaman, a Board-certified otolaryngologist, for
a second opinion examination. In a report dated October 22, 2013, Dr. Seaman reviewed a
statement of accepted facts and the medical evidence of record, conducted a thorough physical
evaluation and diagnosed bilateral high frequency sensorineural hearing loss and tinnitus. He
reviewed the results of an audiogram obtained on October 22, 2013. Audiometric testing at the
frequency levels of 500, 1,000, 2,000 and 3,000 Hertz (Hz) revealed decibel losses in the right
ear of 0, 5, 10 and 10 decibels, respectively; and decibel losses in the left ear of 5, 10, 10 and 15
decibels, respectively.2 Dr. Seaman advised that the audiogram revealed no ratable hearing loss.
He found that appellant was a marginal candidate for hearing aids and did not recommend them
at that time. Dr. Seaman noted that appellant’s bilateral tinnitus was high-pitched and steady, but
did not interfere with his activities of daily living.
On December 17, 2013 an OWCP medical adviser, Dr. Duane J. Taylor, a Board-certified
otolaryngologist, reviewed the medical evidence and audiometric testing to determine if
appellant’s binaural sensorineural hearing loss was ratable for schedule award purposes. Using
Dr. Seaman’s findings, Dr. Taylor calculated that, under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment3 (A.M.A., Guides),
appellant had zero percent monaural hearing loss in the left ear, zero percent monaural hearing
loss in the right ear and zero percent binaural hearing loss.4 Dr. Taylor identified the date of
maximum medical improvement as October 22, 2013. Appellant had no ratable hearing loss or
additional rating for tinnitus. Dr. Taylor noted that appellant did not need amplification to treat
his condition.
By decision dated January 6, 2014, OWCP found that appellant’s hearing loss was not
severe enough to be ratable. It informed him that he was not entitled to a schedule award or
additional medical benefits, such as hearing aids.
LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulations,6 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 for all claimants, OWCP has adopted

2

The audiological equipment was last calibrated on April 2, 2013.

3

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

4

Id. at 252, Table 11-2.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

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the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.9 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides point out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.10
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.11 The A.M.A., Guides state that, if tinnitus
interferes with activities of daily living, including sleep, reading (and other tasks requiring
concentration), enjoyment of quiet recreation and emotional well-being, up to five percent may
be added to a measurable binaural hearing impairment.12 A schedule award for tinnitus is not
payable unless the medical evidence establishes that the condition caused or contributed to a
ratable hearing loss.13
ANALYSIS
The Board finds that appellant has not established that he has a ratable hearing loss.
OWCP accepted that he had bilateral sensorineural hearing loss and tinnitus. After reviewing a
statement of accepted facts and the medical evidence of record, conducting a thorough physical
evaluation and obtaining an audiogram on October 22, 2013, Dr. Seaman diagnosed bilateral
high frequency sensorineural hearing loss and tinnitus. Dr. Taylor, an OWCP medical adviser,
reviewed Dr. Seaman’s report and concluded that appellant had no ratable hearing loss to
warrant a schedule award. By decision dated January 6, 2014, OWCP denied appellant’s
schedule award claim.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
9

A.M.A., Guides 250.

10

See J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

11

A.M.A., Guides 249.

12

Id.; see also Robert E. Cullison, 55 ECAB 570 (2004).

13

See Charles H. Potter, 39 ECAB 645 (1988).

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The Board finds that appellant was not entitled to a schedule award as he had no ratable
employment-related hearing loss. OWCP’s medical adviser properly applied OWCP’s protocols
to the October 22, 2013 audiogram performed as part of Dr. Seaman’s second opinion evaluation
to arrive at a binaural impairment rating of zero percent. Test results for the frequency levels
recorded at 500, 1,000, 2,000 and 3,000 Hz on the right revealed decibel losses of 0, 5, 10 and 10
decibels respectively, for a total of 25 decibels. This figure, when divided by 4, results in an
average hearing loss of 6.25 decibels. The average of 6.25 decibels, when reduced by the 25decibel fence and multiplied by 1.5, results in a zero percent monaural hearing loss of the right
ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed
decibel losses of 5, 10, 10 and 15 decibels respectively, for a total loss of 40 decibels; 40
decibels divided by 4 results in an average of 10 decibels, which, when reduced by the 25decibel fence and multiplied by 1.5, results in a zero percent monaural hearing loss of the left
ear. As the monaural hearing loss rating was zero percent for both the left and right ears, the
binaural hearing loss was also zero percent. This does not mean that appellant has no hearing
loss. It means that the extent or degree of loss is not sufficient to show a practical impairment in
hearing according to the A.M.A., Guides.14 The A.M.A., Guides set a threshold for impairment
and appellant’s occupational hearing loss did not cross that threshold. Dr. Taylor applied the
proper standards to the October 22, 2013 audiogram. Appellant’s hearing loss was not ratable.
For this reason, the Board finds that appellant is not entitled to a schedule award for his
nonratable hearing loss.
The Board further finds that OWCP properly denied appellant a schedule award for
tinnitus.15 FECA does not list tinnitus in the schedule of eligible members, organs or functions
of the body. A claimant may not directly receive a schedule award for tinnitus. Hearing loss is a
covered function of the body, so if tinnitus contributes to a ratable loss of hearing, a claimant’s
schedule award will reflect that contribution. The A.M.A., Guides provide that if tinnitus
interferes with activities of daily living, up to five percent may be added to a measurable binaural
hearing impairment.16 The Board has held, however, that there is no basis for paying a schedule
award for a condition such as tinnitus unless the evidence establishes that the condition caused or
contributed to a ratable hearing loss.17 Although OWCP accepted appellant’s condition for
tinnitus, as his hearing loss is not ratable, the Board will affirm OWCP’s January 6, 2014
decision finding that he was not entitled to a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

14

See P.V., Docket No. 13-1870 (issued January 7, 2014).

15

Id.

16

See supra note 11.

17

See Juan A. Trevino, 54 ECAB 358 (2003); Richard Larry Enders, 48 ECAB 184 (1996); T.W., Docket No.
13-1967 (issued February 10, 2014).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a ratable hearing loss in the performance of duty warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, 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
__________________________________________
H.F., Appellant
and
DEPARTMENT OF DEFENSE, NATIONAL
SECURITY AGENCY, Fort Meade, MD,
Employer
__________________________________________

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Appearances:
Steven J. Dunn, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0101
Issued: September 5, 2017

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 October 19, 2016 appellant, through counsel, filed a timely appeal from an April 25,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

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.

ISSUES
The issues are: (1) whether OWCP properly found that an overpayment of compensation
in the amount of $76,975.48 was created during the period September 1, 2009 to December 31,
2014; and (2) whether OWCP abused its discretion by denying waiver of recovery of the
overpayment.
FACTUAL HISTORY
On February 25, 1994 appellant, then a 50-year-old language voice analyst, filed a
traumatic injury claim (Form CA-1) alleging that she sustained injuries when she slipped and fell
in the performance of duty on February 18, 1994. OWCP accepted the claim for concussion,
back and neck sprains, right buttock contusion, and right shoulder rotator cuff sprain. Appellant
returned to part-time work at the employing establishment and as of October 28, 1996 was
working six hours per day. By decision dated December 26, 1996, OWCP reduced her
compensation to reflect her wage-earning capacity based on actual earnings. Appellant
continued to receive wage-loss compensation based on loss of wage-earning capacity.
Appellant periodically submitted EN1032 forms that requested information regarding
receipt of other federal benefits. In an October 8, 2010 form, she noted that she was receiving
Social Security Administration (SSA) benefits as part of an annuity for federal service.
Appellant also reported receipt of SSA benefits on EN1032 forms dated October 6, 2011,
October 24, 2012, October 21, 2013, and October 26, 2014.
OWCP requested that SSA provide information with respect to appellant’s SSA benefits
with both Federal Employees Retirement Service (FERS) and without FERS. Appellant
indicated that she retired from federal employment as of December 31, 2014. She also indicated
that she was selecting retirement benefits from Office of Personnel Management (OPM)
effective January 1, 2015.3
OWCP received a March 4, 2015 response from SSA with a dual benefits worksheet
regarding SSA both with FERS and without FERS. SSA indicated that appellant was entitled to
retirement benefits effective September 2009. The worksheet provided the SSA rates
commencing September 2009 until December 2009, and for each year through December 2014.
On April 20, 2015 OWCP made a preliminary determination that an overpayment of
compensation was created in the amount of $76,975.48 from September 1, 2009 to
December 31, 2014. It provided its calculations for each year and found that, based on the SSA
information provided, an overpayment of compensation was created in the amount of
$76,975.48. In addition, OWCP found appellant was not at fault in creating the overpayment.
An overpayment recovery questionnaire (OWCP-20) was provided, and appellant was advised to
submit relevant financial information within 30 days.

3

By decision dated April 2, 2015, OWCP found an overpayment of compensation was created in the amount of
$1,764.29 because appellant received compensation through February 7, 2015. That decision is not before the
Board.

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By decision dated June 4, 2015, OWCP finalized its preliminary determination that an
overpayment of compensation was created in the amount of $76,975.48. It also denied waiver of
recovery of the overpayment, noting that appellant did not submit financial information.
A memorandum of telephone call dated June 8, 2015 indicated that appellant reported
that she did not receive the preliminary determination of overpayment. On June 15, 2015 OWCP
reissued the preliminary determination that an overpayment of compensation was created in the
amount of $76,975.48.
By letter dated July 7, 2015, appellant, through counsel, requested an oral hearing before
an OWCP hearing representative. A hearing was held on March 7, 2016. Counsel testified at the
hearing that appellant had been employed in the private sector from 1979 to 1993.
On April 6, 2016 counsel submitted additional evidence. This evidence included a
statement as to monthly expenses and documents as to account balances in the federal retirement
Thrift Savings Plan (TSP). The statements showed approximately $440,000.00 in appellant’s
TSP account, and a balance over $650,000.00 in her spouse’s account. In addition, an affidavit
from appellant reported additional assets that included approximately $9,000.00 in savings
accounts and $250,000.00 in stocks. Additional evidence included an SSA benefits calculator
and retirement planner.
In an affidavit appellant asserted that OWCP had never informed her that an offset to her
compensation was required for receipt of SSA benefits and that she had no knowledge of a FERS
offset until OWCP notified her of an overpayment in 2015. She stated that, if she had known
there was an offset, she would have delayed receipt of SSA benefits. Counsel argued that the
preliminary determination did not explain the calculation of SSA benefits derived from federal
employment, as opposed to the private sector. Additionally he also argued the issue of
detrimental reliance, asserting that appellant gave up a valuable right when she elected SSA
benefits at age 66 rather than wait until she was 70 and receive higher SSA benefits. According
to counsel, it was against equity and good conscience to require repayment of the overpayment.
By decision dated April 25, 2016, the hearing representative found that an overpayment
of compensation was created in the amount of $76,975.48. He denied waiver of recovery of the
overpayment, finding that appellant had sufficient assets to repay the overpayment, and that there
had been no detrimental reliance.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8116(d)(2) requires that compensation benefits be reduced by “the amount of
any such [SSA] benefits payable that are attributable to federal service.” OWCP’s procedures
provide that, while SSA benefits are payable concurrently with FECA benefits, in disability
cases, FECA benefits will be reduced by SSA benefits paid on the basis of age and attributable to
the employee’s federal service.4 It obtains information from SSA on the amount of the
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (June 2009). This
same section of the manual explains that if social security benefits are paid for disability rather than age, SSA
benefits paid for disability shall be reduced by “FECA” compensation payable.

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claimant’s benefits beginning with the date of eligibility to FECA benefits. SSA will provide the
actual amount of SSA benefits received by the claimant/beneficiary. SSA will also provide a
hypothetic SSA benefit computed without FERS covered earnings. OWCP will then deduct the
hypothetical benefit from the actual benefit to determine the amount of benefits which are
attributable to federal service and that amount will be deducted from FECA benefits to obtain the
amount of compensation payable.5
ANALYSIS -- ISSUE 1
OWCP found that an overpayment of compensation was created in the amount of
$76,975.48 from September 1, 2009 through December 31, 2014. The overpayment in this case
is based on the evidence received from SSA with respect to benefits paid to appellant. The
record indicates that while appellant was receiving compensation for total disability under
FECA, she also received SSA age-based retirement benefits. A claimant cannot receive both
compensation for wage loss and SSA retirement benefits attributable to federal service for the
same period. The information provided by SSA indicated that appellant did receive age-based
SSA benefits that were attributable to federal service during the period September 2009 to
December 2014. Therefore an overpayment of compensation was created.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received evidence from SSA with
respect to the specific amount of age-based SSA retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS, and without FERS for specific
periods commencing September 2009. For the years 2011 to 2014, there was a change in the
SSA rate with FERS in December of those years. OWCP calculated the portion of SSA benefits
attributable to federal service for 28-day periods. For example, effective January 1, 2011 the
SSA rate with FERS was $1,980.20 per month, with the SSA rate without FERS $856.80,
resulting in a difference of $1,123.40. The 28-day overpayment was found to be $1,036.90
based on this evidence. OWCP provided its calculations for each relevant period based on the
SSA worksheet. No contrary evidence was provided. The Board finds the evidence is sufficient
to establish that an overpayment of compensation was created in the amount of $76,975.48.6
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA7 provides: “Adjustment or recovery 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 FECA or would be against equity and
good conscience.”8 Since OWCP found appellant to be without fault in the creation of the
5

FECA Bulletin No. 97-09 (issued February 3, 1997). See also P.G., Docket No. 13-589 (issued July 9, 2013).

6

When SSA provides a proper calculation of SSA benefits attributable to federal service during a period FECA
compensation was received, an overpayment is properly found in that amount. See W.C., Docket No. 15-1280
(issued November 13, 2015).
7

5 U.S.C. § 8101 et seq.

8

Id. at § 8129(b).

4

overpayment, OWCP may only recover the overpayment if recovery would neither defeat the
purpose of FECA nor be against equity and good conscience. The guidelines for determining
whether recovery of an overpayment would defeat the purpose of FECA or would be against
equity and good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of
Federal Regulations.
According to section 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary “needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses,” and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.9 For waiver under
the “defeat the purpose” of FECA standard, appellant must show that she needs substantially all
of his current income to meet current ordinary and necessary living expenses, and that her assets
do not exceed the resource base.10 An individual is deemed to need substantially all of her
current income to meet ordinary and necessary living expenses if monthly income does not
exceed expenses by more than $50.00.11
Section 10.437 provides that recovery of an overpayment would be against equity and
good conscience if: (a) the overpaid individual would experience severe financial hardship in
attempting to repay the debt; (b) the 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.
ANALYSIS -- ISSUE 2
In support of her request for waiver of recovery of the overpayment, appellant submitted
an OWCP-20 and submitted financial documents. The initial question is whether recovery of the
overpayment would defeat the purpose of FECA. The Board finds that OWCP did not abuse its
discretion by denying waiver of recovery of the overpayment.
As discussed above, recovery of an overpayment does not defeat the purpose of FECA if
a claimant has assets that exceed the $8,000.00 resource base for an individual with a spouse.
The Board notes that appellant indicated that she had approximately $440,000.00 in her TSP
retirement account. A claimant’s contributions to TSP and earnings from those contributions are
considered to be assets which OWCP may consider in determining waiver.12 In addition,
appellant reported savings account assets of $9,000.00 and stock holdings worth approximately

9

OWCP procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (June 2009).
10

See Robert E. Wenholz, 38 ECAB 311 (1986).

11

Jorge O. Diaz, 51 ECAB 124, 128 (1999); Marlon G. Massey, 49 ECAB 650 (1998); Carroll R. Davis, 46
ECAB 361, 363 (1994).
12

C.W., Docket No. 11-1338 (issued December 19, 2011).

5

$250,000.00. Therefore the evidence indicates that appellant’s assets exceed the resource base
and recovery would not defeat the purpose of FECA.
There is no evidence that recovery would be against equity and good conscience. The
factors considered regarding financial hardship are substantially the same as those for defeat the
purpose of FECA and, as found above, appellant has sufficient available assets and excess
income.13
Moreover, appellant has not shown that she gave up a valuable right or changed her
position for the worse in reliance on compensation payments. Counsel argues that there was
detrimental reliance as appellant had given up rights with respect to SSA benefits. He asserts
that appellant could have declined SSA retirement benefits and waited until she was 70 years of
age to receive higher monthly benefits, and if she lived long enough would have received more
in SSA benefits over her lifetime. This speculative argument does not establish detrimental
reliance.14 Appellant was not deprived of any right to collect SSA benefits due to the receipt of
compensation. To establish that a valuable right has been relinquished, it must be shown that the
right was in fact valuable, that it cannot be regained, and that the action was based chiefly or
solely in reliance on the payments or on the notice of payment.15 The argument that appellant
possibly would have waited to collect SSA benefits and possibly could have benefited if she
lived to a certain age is insufficient to establish a valuable right has been relinquished.
In M.B.,16 the claimant argued that if she had known her compensation benefits would be
offset by SSA benefits, she would not have stopped working and moved to Florida. The Board
found there was no detrimental reliance established, noting there is no provision for conjecture
regarding future income. The Board further noted that the claimant’s arguments would support
her reliance on the receipt of compensation benefits in general, but did not support her reliance
on the overpaid amount, which was the relevant inquiry. To establish detrimental reliance, the
claimant must show that the amount she was overpaid caused her to make a decision, to her
detriment, that she would not have otherwise made.
The Board finds the evidence of record does not establish that recovery of the
overpayment would defeat the purpose of FECA, or be against equity and good conscience.
Therefore OWCP properly denied waiver of recovery of the overpayment in this case.
On appeal counsel again argues detrimental reliance. He claims that the current case is
similar to an example of detrimental reliance found in OWCP’s procedures, where a claimant
resigns his job and withdraws his contributions to his retirement fund based on receipt of

13

See James K. Fitzgerald, 51 ECAB 659 (2000).

14

See M.T., Docket No. 16-0229 (issued May 10, 2016). The Board found that there was no evidence to
substantiate appellant’s claim of detrimental reliance. Specifically, other than appellant’s own statements there was
no evidence that appellant chose to retire once she learned of a schedule award.
15

L.B., Docket No. 12-1202 (issued February 6, 2013).

16

Docket No. 14-0446 (issued September 8, 2014).

6

compensation benefits.17 The Board finds the present case is not similar to the cited example.
Appellant has not lost her job, been unable to find employment, or lost retention rights, as
discussed in the procedure manual example. Rather, she has speculated that she may have
delayed selecting SSA benefits had she known she was not entitled to compensation, and may
have received more in benefits over her lifetime. Appellant has not established that the portion
of social security benefits she received which constituted the overpayment influenced her
decision regarding the date of social security retirement.18 The Board finds she has not
established detrimental reliance in this case.
CONCLUSION
The Board finds that OWCP properly found that an overpayment of compensation was
created in the amount of $76,975.48. The Board further finds that OWCP properly denied
waiver of recover of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 25, 2016 is affirmed.
Issued: September 5, 2017
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

17

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(b) (June 2009).
18

Supra note 15.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.Y., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Milwaukee, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0098
Issued: March 28, 2017

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 October 21, 2016 appellant filed a timely appeal from an October 6, 2016 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right hand
condition in the performance duty, as alleged.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. The Board’s jurisdiction is limited to the review of evidence
which was before OWCP at the time it rendered its decision. Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 25, 2016 appellant, then a 56-year-old housekeeping aid, filed an occupational
disease claim (Form CA-2) alleging that she injured her right hand as a result of “repetitive use
doing daily housekeeping duties.” She first became aware of her claimed condition and of its
relationship to her federal employment on June 15, 2016.
By letter dated August 15, 2016, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim. It noted that she had not submitted any
evidence regarding the employment factors alleged to have caused her injuries. OWCP further
noted that appellant had not submitted any medical evidence in support of her claim. It afforded
her 30 days to submit additional evidence and to respond to its inquiries. Appellant did not
submit any further evidence.
By decision dated October 6, 2016, OWCP denied appellant’s claim for compensation. It
noted that she failed to provide sufficient evidence to establish that the alleged events occurred
as alleged and she had failed to submit medical evidence to establish an injury. OWCP found
that appellant had not submitted any evidence to support her claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.5

3

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Michael E. Smith, 50 ECAB 313, 315 (1999).

5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

2

ANALYSIS
The Board finds that appellant has not submitted sufficient factual evidence to establish
the essential elements of her claim. As previously noted, in an occupational disease claim
appellant must submit a factual statement identifying the employment factors alleged to have
caused or contributed to the presence of her claimed condition.6 She has not submitted a
statement identifying the particular housekeeping duties alleged to have caused or contributed to
her claimed condition. Appellant’s description of “repetitive use doing daily housekeeping
duties” contained on the Form CA-2 lacks sufficient specificity to identify particular
employment factors. Her burden of proof includes the submission of a detailed description of the
employment factors or conditions which she believes caused or adversely affected a condition
for which compensation is claimed.7
In an occupational disease claim appellant is also required to submit medical evidence of
a diagnosed condition, and medical evidence establishing causal relationship between the
diagnosed condition and the alleged factors of employment.8 However, she has failed to submit
any medical evidence to establish a right hand condition. As there is no medical evidence
explaining how specific employment factors caused or aggravated a medical condition involving
appellant’s right hand, she has not met her burden of proof to establish her claim.
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 did not meet her burden of proof to establish that she
sustained a right hand condition in the performance of duty, as alleged.

6

Id.

7

T.C., Docket No. 16-1070 (issued January 24, 2017).

8

J.K., Docket No. 16-1850 (issued January 9, 2017).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 6, 2016 is affirmed.
Issued: March 28, 2017
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pearl River, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-533
Issued: May 3, 2012

Case Submitted on the Record

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

JURISDICTION
On January 12, 2012 appellant filed a timely appeal of an October 26, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration because it was not timely filed and failed to establish clear evidence of error.
Since more than 180 days have elapsed since the most recent merit decision of November 4,
2009 to the filing of this appeal, the Board lacks jurisdiction to review the merits of the claim
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2 and
501.3.2

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new medical evidence accompanying her request for appeal. The Board may not consider
new evidence for the first time on appeal that was not before OWCP at the time it issued the final merit decision in
the case. 20 C.F.R. § 501.2(c). Appellant may submit such evidence to OWCP pursuant to a valid request for
reconsideration.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to present clear evidence of error.
On appeal, appellant contends that accompanying medical evidence from her attending
physicians established her claim for recurrence of disability.
FACTUAL HISTORY
This case has previously been before the Board. In the Board’s most recent decision and
order, issued August 13, 2010,3 the Board affirmed August 12 and November 4, 2009 decisions
of OWCP denying her claim for recurrence of disability. The law and the facts of the case as set
forth in the Board’s previous decision and order are incorporated by reference.4
In a December 20, 2010 letter, appellant requested reconsideration, asserting that the
medical evidence of record was sufficient to establish her claim for a recurrence of disability
commencing May 8, 2001. In a July 20, 2010 report, Dr. David W. Galarneau, an attending
Board-certified psychiatrist and neurologist, related appellant’s continued symptoms of
depression and anxiety related to her compensation claim and financial difficulties.
Dr. Galarneau diagnosed major depressive disorder, PTSD and panic disorder. Dr. Galarneau
renewed medications.
By decision dated January 25, 2011, OWCP denied reconsideration on the grounds that
the evidence submitted did not raise substantive legal questions or include new, relevant
evidence. It found that appellant’s letter and Dr. Galarneau’s July 10, 2010 report were
repetitive of arguments and evidence previously of record.
In a February 11, 2011 letter, appellant requested reconsideration on the grounds that the
Office of Personnel Management and the Social Security Administration both found her eligible
for disability retirement benefits. She also reiterated that the medical evidence of record
established her claim for recurrence of disability.
By decision dated March 1, 2011, OWCP denied reconsideration on the grounds that the
evidence submitted was irrelevant to her claim, as the determinations of other administrative
agencies were not determinative under FECA as they had different standards of proof.
3

Docket No. 10-324 (issued August 13, 2010). On August 16, 2010 appellant filed a petition for reconsideration
of the Board’s August 13, 2010 decision and order. By order issued November 12, 2010, under Docket No. 10-324,
the Board denied her petition for reconsideration.
4

OWCP accepted that on January 5, 1989 appellant sustained post-traumatic stress disorder (PTSD), major
depressive disorder and anxiety disorder when she was robbed at gunpoint while in the performance of duty.
Appellant stopped work in September 1995 after a coworker threatened her with a knife. Following a brief return to
work in 2001, she stopped work and did not return. Appellant claimed a recurrence of disability commencing
May 8, 2001 related to a telephone conversation with an employing official regarding work absences. OWCP
denied the claim by decisions issued August 12 and November 4, 2009. The Board found that appellant did not
submit sufficient rationalized medical evidence to establish a spontaneous change in her condition on May 8, 2001.

2

In an August 27, 2011 letter, appellant again requested reconsideration on the basis of
new medical evidence. She submitted an August 23, 2011 report from Dr. Beverly Stubblefield,
an attending licensed clinical psychologist, stating that a May 8, 2001 telephone call between
appellant and an injury compensation specialist aggravated her PTSD and totally disabled her for
work for the ensuing decade.5
By decision dated October 26, 2011, OWCP denied reconsideration on the grounds that
appellant’s request was not timely filed and failed to present clear evidence of error. It found
that her August 27, 2011 letter and Dr. Stubblefield’s report were insufficient to raise a
substantial question regarding the correctness of OWCP’s November 4, 2009 decision.
LEGAL PRECEDENT
Section 8128(a) of FECA6 does not entitle a claimant to a review of an OWCP decision
as a matter of right.7 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.8 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is filed
within one year of the date of that decision.9 The Board has found that the imposition of this
one-year time limitation does not constitute an abuse of the discretionary authority granted
OWCP under 5 U.S.C. § 8128(a).10
In those cases where requests for reconsideration are not timely filed, OWCP must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its
regulations.11 Its regulations states that it will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in OWCP’s regulations, if the claimant’s
request for reconsideration shows “clear evidence of error” on the part of OWCP.12

5

On March 7, 2011 appellant filed an appeal with the Board of OWCP’s March 1, 2011 decision. This appeal
was docketed as No. 11-967. By order issued October 7, 2011, the Board dismissed the appeal under Docket
No. 11-967 at appellant’s request to allow her August 27, 2011 reconsideration request to proceed.
6

5 U.S.C. § 8128(a).

7

Thankamma Mathews, 44 ECAB 765, 768 (1993).

8

Thankamma Mathews, id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

9

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority;
see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
10

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 7, Jesus D. Sanchez, supra note 8.

11

Thankamma Mathews, supra note 7.

12

20 C.F.R. § 10.607(b).

3

To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.13 The evidence must be positive, precise and explicit and must be
manifest on its face that OWCP committed an error.14 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.15 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.16 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error by OWCP.17 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.18
ANALYSIS
In its October 26, 2011 decision, OWCP properly determined that appellant failed to file
a timely application for review. It rendered its most recent merit decision on November 4, 2009.
Appellant’s request for reconsideration was dated August 27, 2011, more than one year after
November 4, 2009. Accordingly, her request for reconsideration was not timely filed.
In the August 27, 2011 letter, appellant contended that an August 23, 2011 report from
Dr. Stubblefield, an attending licensed clinical psychologist, was sufficient to establish the
claimed May 8, 2001 recurrence of disability. The Board finds that appellant’s August 27, 2011
letter does not raise a substantial question as to whether OWCP’s November 4, 2009 decision
was in error or prima facie shift the weight of the evidence in her favor. Therefore, it is
insufficient to establish clear evidence of error. Dr. Stubblefield’s report does not address
whether the 1995 knife incident constituted an intervening cause, a critical issue at the time of
the November 4, 2009 merit decision. Therefore, his report is irrelevant and does not establish
clear evidence of error.19
Appellant has not otherwise provided any argument or evidence of sufficient probative
value to shift the weight of the evidence in her favor and raise a substantial question as to the
correctness of OWCP’s November 4, 2009 decision. Consequently, OWCP properly denied
appellant’s reconsideration request as her request does not establish clear evidence of error.

13

Thankamma Mathews, supra note 7.

14

Leona N. Travis, 43 ECAB 227 (1991).

15

Jesus D. Sanchez, supra note 8.

16

Leona N. Travis, supra note 14.

17

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

18

Gregory Griffin, supra note 9.

19

Leona N. Travis, supra note 14.

4

On appeal, appellant contends that accompanying medical reports established her claim
for a recurrence of disability commencing May 8, 2001. The Board notes that his arguments and
the majority of the medical reports were previously considered and rejected by OWCP.
Regarding the medical documents that are new evidence not previously considered by OWCP,
the Board may not consider new evidence for the first time on appeal that was not before OWCP
at the time it issued its decision.20 Such evidence may be submitted to OWCP pursuant to a valid
request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 26, 2011 is affirmed.
Issued: May 3, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

20

20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Pittsburgh, PA, Employer
)
_________________________________________ )
L.B., Appellant

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

Docket No. 12-1017
Issued: October 19, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 12, 2012 appellant filed a timely appeal from a January 9, 2012 decision of the
Workers’ Compensation Programs (OWCP) which denied her request for reconsideration
because it was not timely filed and failed to establish clear evidence of error. Because more than
one year elapsed from the most recent merit decision of November 10, 2009 to the filing of this
appeal, the Board lacks jurisdiction to review the merits of her claim pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
On May 13, 2003 appellant, then a 36-year-old mail processor, filed an occupational
disease claim alleging that she sustained bursitis, a tear in the right rotator cuff and tendinitis in
the performance of duty. She did not stop work. OWCP accepted the claim for impingement
syndrome of the right shoulder.3 Appellant received wage-loss compensation and benefits.4
Appellant claimed a schedule award on July 22, 2008. On September 25, 2008 OWCP
advised her of the information needed to establish her claim for a schedule award under the
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001). In a December 5, 2008 report, Dr. Antony M. George, Board-certified in emergency
medicine, reviewed appellant’s history of injury and treatment. He examined her and found that
she had not reached maximum medical improvement. Dr. George provided an impairment rating
of seven percent to the right upper extremity. He indicated that this would equate to four percent
whole person impairment.
By letter dated June 5, 2009, OWCP contacted Dr. George and advised him that FECA
did not provide a schedule award based on whole person impairments.5 He was also advised
that, effective May 1, 2009, the A.M.A., Guides (6th ed. 2009), was used for evaluating
permanent impairment. OWCP requested that Dr. George submit a new impairment rating under
the sixth edition A.M.A., Guides. In a July 27, 2009 report, Dr. George revised his impairment
rating in accordance with the sixth edition of the A.M.A., Guides. He referred to Table 15-1 and
Table 15-5, and opined that appellant had a moderate degree of severity under Class 1 for
impingement and shoulder tendon impairment and had seven percent impairment for a Class 1
rotator cuff tear.6 Dr. George noted that appellant also had a Class 1 or seven percent
impairment for acromioclavicular (AC) joint functional loss and added the values. He opined
that this totaled 14 percent impairment of the right upper extremity. Dr. George referred to
Table 15-1 and opined that this would correspond to a 10 percent impairment of the whole
person.

3

OWCP also noted that appellant utilized a cane in postoperative recovery pertaining to a previous claim File
No. xxxxxx565. It advised that the evidence supported that the use of the cane affected her right shoulder condition.
4

Appellant retired from the employing establishment on October 23, 2009.

5

See Tania R. Keka, 55 ECAB 354 (2004); James E. Mills, 43 ECAB 215 (1991) (neither FECA, nor its
implementing regulations provide for a schedule award for impairment to the body as a whole).
6

A.M.A., Guides 385, 388.

2

In a September 2, 2009 report, an OWCP medical adviser reviewed the medical evidence
and noted appellant’s history of injury and treatment.7 He referred to Table 15-58 for the right
upper extremity and right shoulder and determined that for mild impingement it was equal to a
Class 1 with a default value of three percent of the arm. For the rotator cuff, mild and
acromioclavicular joint, with a default value of three percent of the arm, not using any modifiers,
the total percentage of impairment was equal to three percent. The medical adviser referred to
the Combined Values Chart and found that this totaled six percent impairment of the right arm.9
He could not explain Dr. George’s finding of seven percent pursuant to the A.M.A., Guides.
By decision dated November 10, 2009, OWCP granted appellant a schedule award for six
percent permanent impairment of the right upper extremity. The period of the award ran for
18.72 weeks.
OWCP subsequently received an October 4, 2002 x-ray of the left knee read by
Dr. Christina Wirtz, a Board-certified diagnostic radiologist. It revealed a joint effusion and
degenerative changes. OWCP also received a May 5, 2008 article on chondromalacia of the
patella.
On August 28, 2011 appellant requested that OWCP review her schedule award and
provided another copy of Dr. George’s July 27, 2009 report. She contended that the medical
adviser’s impairment rating was incorrect. Appellant argued that she believed she was entitled to
a greater award.
In a letter dated September 30, 2011, appellant requested reconsideration. She stated that
she had reviewed the A.M.A., Guides and believed that the medical adviser did not provide a
proper evaluation and her schedule award was miscalculated. The medical adviser did not
address or include grade modifiers or adjustment grids. Appellant argued that the calculation of
13 percent provided by her treating physician was correct based upon the diagnosis-based
impairments (DBI). She related that the DBI of the rotator cuff injury, AC joint injury and
impingement syndrome which were all diagnosed based upon a magnetic resonance imaging
scan and not range-of-motion measurements. Appellant explained that this error was sufficient
to establish clear evidence of error.
In a decision dated January 9, 2012, OWCP denied appellant’s request for
reconsideration of the November 10, 2009 decision for the reason that it was not timely filed and
failed to present clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.10 This discretionary authority, however, is subject to certain restrictions.
7

The date appears to be July 2, 2009; however, it is actually September 2, 2009.

8

A.M.A., Guides 402.

9

Id. at 602.

10

See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

3

20 C.F.R. § 10.607(a) provides that a request for reconsideration must be filed within one year of
the date of OWCP’s decision for which review is sought.11 The Board has found that the
imposition of this one-year filing limitation does not constitute an abuse of discretion.12
OWCP may not deny a reconsideration request solely on the grounds that it was not
timely filed. When a claimant’s application for review is not timely filed, OWCP must
nevertheless undertake a limited review to determine whether it establishes clear evidence of
error. If an application demonstrates clear evidence of error, OWCP will reopen the case for
merit review.13
To establish clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP,14 is positive, precise and explicit, and manifests on its face
that OWCP committed an error.15 The evidence must be of sufficient probative value to shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to establish clear evidence of error. It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has established clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.16
ANALYSIS
In its January 9, 2012 decision, OWCP properly determined that appellant failed to file a
timely application for review. The most recent merit decision is the November 10, 2009
schedule award. Appellant requested reconsideration on September 30, 2011, more than one
year after the November 10, 2009 merit decision and her request was untimely.
OWCP reviewed the evidence submitted by appellant in support of her application for
review, but found that it did not clearly show that OWCP’s decision was in error. The Board
finds that the evidence submitted by appellant in support of her application for review does not
raise a substantial question as to the correctness of OWCP’s decision and is insufficient to
demonstrate clear evidence of error. The issue is whether she has established clear evidence of

11

D.O., Docket No. 08-1057 (issued June 23, 2009); W.G., Docket No. 08-2340 (issued June 22, 2009).

12

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

13

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of
error” is intended to represent a difficult standard).
14

See Dean D. Beets, 43 ECAB 1153 (1992).

15

See Leona N. Travis, 43 ECAB 227 (1991).

16

See J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued
September 2, 2010).

4

error in the November 10, 2009 schedule award decision which rated her impairment at six
percent of the right arm.
With her September 30, 2011 request for reconsideration, appellant argued that her
schedule award was improperly calculated by the medical adviser and that her physician had
properly applied the A.M.A., Guides. She argued that her interpretation of the A.M.A., Guides
supported greater impairment. The Board has held that the degree of impairment to a scheduled
member is a question that can only be established by probative medical opinion.17 Appellant did
not submit any new medical evidence to establish greater impairment of her right arm. The
evidence of record to which she referred had been previously considered and reviewed by
OWCP in its November 10, 2009 schedule award decision.
Following issuance of the November 10, 2009 schedule award decision, the medical
evidence submitted by appellant does not address whether she has greater impairment under the
A.M.A., Guides. OWCP procedures provide that the term “clear evidence of error” is intended
to represent a difficult standard. The claimant must present evidence which on its face shows
that OWCP made an error (for example, proof of a miscalculation in a schedule award).
Evidence such as a detailed, well-rationalized report, which if submitted prior to OWCP’s denial,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error and would not require a review of a case.18 The evidence submitted by
appellant pertained to her left knee. This is not relevant to the issue of the extent of impairment
to her right arm.
The Board finds that the evidence and argument from appellant is insufficient to shift the
weight of the evidence in favor of her claim or raise a substantial question that OWCP erred in
its November 10, 2009 decision. Therefore, the Board finds that she has not presented clear
evidence of error.
On appeal, appellant repeated her arguments on reconsideration. She noted that she
attended a conference where the schedule award procedures were explained and reiterated that
there were errors in her schedule award calculation. As noted, the determination of impairment
is an issue that must be addressed by the submission of medical evidence from a physician. The
Board notes that appellant may request an increased schedule award based on evidence of a new
exposure or medical evidence establishing increased impairment of her arm.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.

17

See L.G., Docket No. 09-1517 (issued March 3, 2010); 5 U.S.C. § 8101(2).

18

Annie L. Billingsley, 50 ECAB 210 (1998).

5

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, New York City, NY,
Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 18-0121
Issued: June 11, 2018

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On October 23, 2017 appellant, through counsel, filed a timely appeal from a September 5,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was
docketed as No. 18-0121.2
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

On September 22, 2012 appellant, then a 49-year-old transportation security officer, filed a traumatic injury claim
alleging that at 11:30 a.m. on September 18, 2012 he sprained a trapezoid muscle lifting a stack of bins. On the claim
form an employing establishment supervisor indicated that a surveillance video was reviewed covering the time period
10:00 a.m. to 12:30 p.m. on the day in question, and that the injury described was not seen. Appellant left work at
12:30 p.m. On November 7, 2012 OWCP accepted that on September 18, 2012 appellant sustained sprain of the back,
thoracic region, and sprain of shoulder and upper arm, rotator cuff. In a June 3, 2013 decision, that incorporated an
April 8, 2013 notice of proposed rescission, OWCP rescinded acceptance of appellant’s claim, based on evidence
submitted by the employing establishment. This included the surveillance DVD that it had reviewed. Following a
July 16, 2013 hearing, by decision dated September 30, 2013, an OWCP hearing representative affirmed the June 3,
2013 decision. The hearing representative also affirmed a March 18, 2013 decision denying three recurrence claims.

This case has previously been before the Board. In a July 10, 2014 order, the Board found
the case not in posture for decision because the record submitted included a DVD purported to
cover appellant’s work area from 10:00 a.m. to 12:30 p.m. on September 18, 2012, the date of
injury. The DVD forwarded to the Board with the case record was not readable.3 The Board found
that, in light of OWCP’s reliance on the surveillance DVD as evidence to rescind acceptance of
the claim,4 the case was not in posture for decision as the record before the Board was incomplete.
The Board remanded the case to OWCP to furnish a readable DVD and for further reconstruction
and assemblage deemed necessary, to be followed by an appropriate de novo decision.5
Following remand, on August 13, 2014 OWCP asked the employing establishment to
provide a readable DVD. In an August 21, 2014 decision, it rescinded acceptance of appellant’s
claim. Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings
and Review. A hearing was held on March 17, 2015. On June 3, 2015, an OWCP hearing
representative affirmed the August 21, 2014 decision, and appellant thereafter appealed to the
Board. By order dated January 20, 2016, the Board again found the case not in posture for decision
and remanded the case to OWCP because the DVD provided was not readable. The Board noted
that the DVD was examined by the Board’s technical staff who found it to be unreadable. The
Board also indicated that it appeared that OWCP had received two DVDs, one in 2013 and one in
2015, and it was unclear which had been forwarded to the Board. Upon remand OWCP was to
obtain a readable DVD, to be followed by an appropriate de novo decision.6
Following remand, on March 14, 2016 OWCP asked the employing establishment to
forward the surveillance DVD. In a July 8, 2016 decision, OWCP rescinded acceptance of
appellant’s claim. OWCP noted that it had reviewed a clear copy of a surveillance DVD covering
10:00 a.m. to 12:30 p.m. on September 18, 2012 which did not demonstrate the truthfulness of
appellant’s claim and did not support that an injury occurred as claimed. Appellant, through
counsel, timely requested a hearing with OWCP’s Branch of Hearings and Review, that was held
on March 15, 2017. On June 20, 2017 the employing establishment forwarded another
surveillance DVD to OWCP. The transmittal documents included a photograph of the DVD that
was forwarded which identified it as a Maxell DVD that had appellant’s name and OWCP file
number affixed. By decision dated September 5, 2017, an OWCP hearing representative affirmed
the July 8, 2016 decision. He noted his review of a surveillance DVD, indicating that it cast
significant doubt that appellant experienced a work-related injury at the time, place, and in the
manner alleged, and that the medical evidence submitted was insufficient to establish a medical
condition caused by the claimed September 18, 2012 injury.
The Board again finds the case not in posture for decision because the record submitted to
the Board continues to be incomplete. The DVD provided to the Board was examined by the
Board’s technical staff who found it to be unreadable. The Board notes that the DVD furnished
with appellant’s case record is a TDK DVD, and not a Maxell DVD, as was identified by the
employing establishment with its June 20, 2017 transmittal. The Board’s technical staff indicated
that the TDK DVD appeared to contain only an application file to be used to view content. There
3

The Board’s technical staff reviewed the DVD and found it to be encrypted and unreadable.

4

Supra note 2.

5

Docket No. 14-244 (issued July 10, 2014).

6

Docket No. 15-1863 (issued January 20, 2016).

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was no content found on the DVD. In light of OWCP’s reliance on the surveillance DVD as
evidence to rescind acceptance of this claim,7 the Board finds this case is not in posture for
decision. The Board, therefore, will again remand the case to OWCP to furnish a readable DVD.
After securing a readable DVD and for further reconstruction and assemblage deemed necessary,
OWCP shall issue an appropriate de novo decision.
IT IS HEREBY ORDERED THAT the September 5, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: June 11, 2018
Washington, DC

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

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

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

7

Supra note 1.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
TOGUS VETERANS ADMINISTRATION
MEDICAL CENTER, Augusta, ME, Employer
__________________________________________

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

Docket No. 09-349
Issued: September 1, 2009

Case Submitted on the Record

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

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from an October 17, 2008
nonmerit decision of the Office of Workers’ Compensation Programs’ denying reconsideration
of a September 18, 2008 merit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3 the Board
has jurisdiction of the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty on
April 16, 2008 causally related to her federal employment; and (2) whether the Office properly
denied appellant’s request for further review of the merits of her claim pursuant to 5 U.S.C.
§ 8128
FACTUAL HISTORY
On June 11, 2008 appellant, a 63-year-old nurse, filed a traumatic injury claim (Form
CA-1) for a lower back and right leg injury. She attributed her injury to an April 16, 2008

incident when, while lifting a 23-pound instrument set, she experienced pain in the mid and
lower back that ran down into her right leg.
Appellant submitted a March 31, 2004 report signed by Dr. William L. Griffith, a Boardcertified internist, who diagnosed low back strain. She also submitted an April 15, 2004 report
signed by Dr. Griffith, which diagnosed appellant with neurogenic claudication. In a report
dated May 6, 2004, Dr. Griffith noted that a magnetic resonance imaging (MRI) scan of
appellant’s lumbar and sacral spine revealed disc damage and a narrowing of the canal at L4-5
consistent with neurogenic claudication.
In an August 25, 2008 report, Dr. Christopher J. Mahoney, a Board-certified diagnostic
radiologist, reported that an MRI scan of appellant’s lumbar spine revealed a small disc
herniation at the T10-11 level. He also reported that the MRI scan revealed a moderate to large
broad-based herniation at the L2-3 level that appeared to have enlarged since the previous
examination. Dr. Mahoney noted that the presence of a right neural foraminal narrowing from a
combination of the disc and osteophytes. A broad-based bulging as well as a bilateral small
foraminal herniation was present at the L3-4 level and an anterolisthesis of the L4 vertebrae
relative to the L5 causing an uncovering of the disc. Finally, Dr. Mahoney observed minimal
broad-based bulging at the L5-S1 level. He diagnosed anterolisthesis of the L4 relative to the L5
and multilevel disc bulging and/or herniation with central canal stenosis at the L2-3, L3-4 and
L4-5 levels.
Appellant submitted a September 5, 2008 note, from Dr. Michael Klein, Board-certified
in emergency and internal medicine, who reported interviewing and examining her for the first
time on September 5, 2008. After reviewing her medical history, including a description of the
April 16, 2008 surgical tray lifting incident, Dr. Klein concluded that her physical findings
reflected a worsening of the disc bulging with some nerve impingement at the L2 level.
By decision dated September 18, 2008, the Office denied the claim because the evidence
of record did not demonstrate that the claimed medical condition was related to the established
work-related event.
Appellant requested reconsideration and submitted a July 21, 2008 report signed by a
Dr. B.G. Newman, who noted her continuing complaints. She also submitted a September 9,
2008 note, signed by a Dr. Kennebec Locum, who noted that she developed low back pain on
April 16, 2008 after lifting a heavy surgical tray and who diagnosed her with recurrent low back
pain with evidence of increasing disc protrusion of the L2-3 level, multilevel disc disease and
canal stenosis and tobacco abuse disorder. Appellant also submitted a September 5, 2008
medical note from Dr. Klein that reported her pain complaints.

2

By decision dated October 17, 2008, the Office denied reconsideration of its prior
decision.1
LEGAL PRECEDENT -- ISSUE 1
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.2 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.3
As part of appellant’s burden, the employee must submit rationalized medical opinion
evidence based on a complete factual and medical background showing causal relationship.4 The
weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5
ANALYSIS -- ISSUE 1
The Office has accepted that on April 16, 2008 appellant lifted a 23-pound instrument set
while at work. Appellant’s burden is to establish that her alleged lower back and right leg injury
are causally related to this identified employment incident. As noted above, causal relationship
is a medical issue requiring submission of medical evidence establishing that the employment
incident caused a personal injury. The Board finds that the evidence of record is insufficient to
accomplish such a task and, therefore, appellant has not met her burden to establish that she
sustained an injury in the performance of duty causally related to her federal employment.
The relevant medical evidence of record consisted of medical reports from Drs. Griffith
and Mahoney as well as notes signed by Dr. Klein. The Board notes initially that Dr. Griffith’s
and Dr. Mahoney’s reports did not provide a history of injury. The Board has previously held
that, medical opinion evidence must be based on a complete factual and medical background, these
1

On appeal, appellant submitted additional medical evidence. The Board may not consider evidence for the first
time on appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R.
§ 501.2(c). See J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction
is limited to reviewing the evidence that was before the Office at the time of its final decision). As this evidence
was not part of the record when the Office issued either of its previous decisions, the Board may not consider it for
the first time as part of appellant’s appeal.
2

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

3

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

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reports did not indicate an awareness of appellant’s history of injury and furthermore these reports
did not attempt to correlate his diagnosed conditions with the accepted incident. These medical
reports are of diminished probative value as they lack an opinion concerning the causal
relationship between a diagnosed condition and the identified employment incident.
While Dr. Klein’s reports did note a history of appellant’s surgical tray lifting incident on
April 16, 2008, he offered no rationalized medical opinion causally relating the diagnosed
conditions to this lifting incident. The Board has held that medical reports and notes lacking an
opinion on causal relationship are of limited probative value.6 The Board has held that the fact
that a condition manifests itself or worsens during a period of employment7 or that work
activities produce symptoms revelatory of an underlying condition8 does not raise an inference of
causal relationship between a claimed condition and an employment incident. As neither the
medical reports or the medical note contained a physician’s opinion concerning the causal
relationship between a diagnosed condition and the identified employment-related incident, they
are of limited probative value and are insufficient to meet appellant’s burden.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,9
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.10 To be entitled to a merit
review of an Office decision, denying or terminating a benefit, a claimant also must file his or
her application for review within one year of the date of that decision.11 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.12
ANALYSIS -- ISSUE 2
Appellant’s October 14, 2008 reconsideration request neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law nor advanced a relevant
6

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value). See also, Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB
457 (2001).
7

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
8

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155,157 (1960).

9

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
10

20 C.F.R. § 10.606(b)(2).

11

Id. at § 10.607(a).

12

Id. at § 10.608(b).

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legal argument not previously considered by the Office. Therefore, appellant is not entitled to a
review of the merits of her claim based upon the first and second above-noted requirements
under section 10.606(b)(2).13
Appellant did submit additional evidence with her October 14, 2008 reconsideration
request. With her request, she submitted medical reports, dated July 21, September 5 and 9,
2008 signed by Drs. Newman, Locum and Klein.
The Board has long held that evidence that does not address the particular issue involved
does not constitute a basis for reopening a claim.14 None of the additional reports submitted by
appellant with her request for reconsideration offered any medical opinion regarding the cause of
her diagnosed back condition. As causal relationship was the issue upon which her claim was
denied, these reports did not constitute new and relevant evidence pertinent to the issue involved.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she sustained an
injury in the performance of duty on April 16, 2008 causally related to her federal employment.
The Board also finds that in this case the Office did not abuse its discretion by denying
appellant’s reconsideration request.
ORDER
IT IS HEREBY ORDERED THAT the October 17 and September 18, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 1, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
13

Id. at § 10.606(b)(2)(i) and (ii).

14

Betty A. Butler, 56 ECAB 545 (2005).

5


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

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

Docket No. 10-999
Issued: November 12, 2010

Case Submitted on the Record

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

JURISDICTION
On March 1, 2010 appellant filed a timely appeal from the November 6, 2009 merit
decision of the Office of Workers’ Compensation Programs, which found a two percent
impairment of his left arm. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant has more than a two percent impairment of his left upper
extremity as a result of his accepted carpal tunnel syndrome.
FACTUAL HISTORY
On July 14, 2006 appellant, then a 40-year-old modified mail processing clerk, filed a
claim alleging that the carpal tunnel syndrome in his left hand was a result of his federal
employment, which involved repetitive motion and the limited use of his right hand. The Office
accepted his claim for left carpal tunnel syndrome. Appellant underwent a surgical release on
March 27, 2009 by Dr. Gerard Gabel. He later filed a schedule award claim. Dr. Gabel offered a
five percent impairment rating for the left arm under obsolete versions of the American Medical
Association, Guides to the Evaluation of Permanent Impairment.

The Office referred appellant, together with the record and a statement of accepted facts,
to Dr. James F. Hood, a Board-certified orthopedic surgeon. In a September 17, 2009 report,
Dr. Hood described his findings and evaluated appellant’s impairment under the applicable sixth
edition of the A.M.A., Guides. He noted that test findings showed a conduction delay, that
appellant had a history of mild intermittent symptoms, and that the physical examination
revealed decreased sensation. Dr. Hood determined that appellant had a Grade 1 or mild residual
carpal tunnel syndrome, which carried a default impairment value of two percent. He
determined that appellant’s functional history was invalid, as his response was not consistent
with any of the other parameters, so no modification of the default value was warranted.
An Office medial adviser reviewed Dr. Hood’s report and his application of the A.M.A.,
Guides. He agreed that appellant had a two percent impairment of his left upper limb.
On November 6, 2009 the Office issued a schedule award for a two percent impairment
of appellant’s left upper limb.
On appeal, appellant asked the Board to review the schedule award and submitted copies
of documents related to his right hand, his placement on the periodic rolls in April 2009, health
benefits enrollment, his election to remain in the bid cluster as a part-time regular, and
information from the Social Security Administration.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.2
ANALYSIS
Dr. Hood, the orthopedic surgeon and Office referral physician, followed the rating
process set out in the sixth edition of the A.M.A., Guides for impairment due to focal nerve
compromise, such as with carpal tunnel syndrome. Using Table 15-23, page 449, he determined
the grade of appellant’s impairment by averaging the severity levels for test findings, history and
physical findings. Test findings were mild (1) history was moderate (2) and physical findings
were mild (1). The average, rounded to the nearest integer, was one. Dr. Hood found that
appellant had a Grade 1 residual carpal tunnel syndrome, which carries a default impairment
value of two percent.
Functional history can modify this default value, but only by one percent in either
direction. Dr. Hood determined that appellant’s functional history was invalid; therefore, the
default value represents the final estimate of impairment to the left upper limb.
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).

2

The Board finds that Dr. Hood properly applied the applicable edition of the A.M.A.,
Guides and properly determined the impairment resulting from appellant’s carpal tunnel injury.
The Board will therefore affirm the Office’s November 6, 2009 decision.
Appellant submitted documents on appeal related to issues that are not before the Board,
such as his placement on the periodic rolls and his election to remain a part-time regular. These
matters have no bearing on the Office’s November 6, 2009 schedule award decision, which the
Board has jurisdiction to review.3
CONCLUSION
The Board finds that appellant has no more than a two percent impairment of his left
upper limb as a result of his accepted carpal tunnel syndrome.
ORDER
IT IS HEREBY ORDERED THAT the November 6, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 2010
Washington, DC

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

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

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

3

The Board’s jurisdiction is limited to appeals from final decisions of the Office in any case arising under the
Act. 20 C.F.R. § 501.2(c).

3