United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartford, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1370
Issued: October 23, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 5, 2017 appellant filed a timely appeal from a January 24, 2017 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 has more than seven percent permanent impairment of the
left upper extremity, for which he previously received a schedule award.
FACTUAL HISTORY
On March 24, 2014 appellant, then a 51-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on March 13, 2014 he injured his left shoulder unloading
trucks. He did not stop work. OWCP initially accepted the claim for left shoulder strain.
1

5 U.S.C. § 8101 et seq.

In a May 7, 2014 report, Dr. James Mazo, a Board-certified physiatrist, indicated that a
magnetic resonance imaging scan showed a full-thickness left rotator cuff tear. OWCP accepted
the claim for a partial tear of the left rotator cuff and left rotator cuff sprain.2 Appellant
underwent left shoulder arthroscopic surgery on July 10, 2014. He received wage-loss
compensation on the supplemental rolls from June 12 to August 23, 2014, and on the periodic
rolls from August 24 to October 18, 2014. Appellant returned to full-time, light-duty work on
November 3, 2014, and received intermittent compensation on the supplemental rolls from
October 19, 2014 until December 20, 2015.
Appellant submitted a July 21, 2015 report from Dr. John Mara, a Board-certified
orthopedic surgeon, who reported results on examination and indicated that appellant had
reached maximum medical improvement. Dr. Mara reported full range of motion (ROM) of the
left shoulder, noting it was difficult to use the right shoulder as a control because appellant had
right shoulder arthritis that limited his ROM.3 He opined that appellant had 12 percent left upper
extremity permanent impairment. In a note dated January 7, 2016, Dr. Mara indicated that the 12
percent permanent impairment rating was based on the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4
OWCP referred appellant and medical records for a second opinion examination by
Dr. Balazs Somogyi, a Board-certified orthopedic surgeon. In a report dated May 7, 2016,
Dr. Somogyi provided a history and results on examination. Utilizing the ROM method, he
evaluated impairment. Dr. Somogyi found for the left shoulder: 90 degrees flexion, 32 degrees
extension, 80 degrees abduction, 15 degrees adduction, 52 degrees internal rotation and 54
degrees external rotation. He opined that appellant had 15 percent left upper extremity
permanent impairment under the A.M.A., Guides.
The case was referred to an OWCP medical adviser, Dr. David Garelick, a Boardcertified orthopedic surgeon. In a report dated May 25, 2016, Dr. Garelick opined that
appellant’s permanent impairment should be determined using a diagnosis-based impairment
(DBI) method, instead of a ROM method. He opined that appellant had seven percent left upper
extremity permanent impairment, based on a diagnosis of full-thickness rotator cuff tear.
By letter dated June 2, 2016, OWCP requested that Dr. Somogyi review the report from
Dr. Garelick and provide a supplemental report. In a report dated July 29, 2016, Dr. Somogyi
indicated that he disagreed with Dr. Garelick. He opined that the ROM method was more
appropriate in this case, and his opinion remained that appellant had 15 percent left upper
extremity permanent impairment.
The case was again referred to Dr. Garelick for an opinion as to permanent impairment.
In a report dated July 21, 2016, Dr. Garelick reiterated his opinion that the DBI method should
While the acceptance letter noted a partial tear had been accepted, this was an error. Appellant’s claim is
accepted for a complete tear of the rotator cuff tendon.
2

3

Dr. Mara did not provide specific ROM results for the left shoulder.

4

6th ed. 2009.

2

be used, and the permanent impairment rating for appellant’s left upper extremity was seven
percent.
OWCP then requested that an OWCP medical adviser review the reports from the
attending physician, Dr. Mara. In a report dated January 4, 2017, an OWCP medical adviser,
Dr. Michael Katz, a Board-certified orthopedic surgeon, opined that the evidence from Dr. Mara
was of little probative value as he had not explained how the permanent impairment was
calculated.
By decision dated January 24, 2017, OWCP issued a schedule award for seven percent
left upper extremity permanent impairment. The period of the award was 21.84 weeks from
July 21, 2015.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.5 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.6 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.7
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).8 The Board has approved the use by OWCP of the A.M.A.,

5

See 20 C.F.R. §§ 1.1-1.4.

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
6

7

5 U.S.C.

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

8

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

3

Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.9
ANALYSIS
The Board finds that this case is not in posture for decision.
The second opinion physician, Dr. Somogyi, found that appellant’s left upper extremity
permanent impairment should be determined using the ROM method. An OWCP medical
adviser, Dr. Garelick, determined that the DBI method was appropriate.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.10
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.11 In T.H., the Board concluded that OWCP physicians
were at odds over the proper methodology for rating upper extremity impairment, having
observed attending physicians, evaluating physicians, second opinion physicians, impartial
medical examiners, and district medical advisers use both DBI and ROM methodologies
interchangeably without any consistent basis. Furthermore, the Board observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board found that OWCP could no longer ensure
consistent results and equal justice under the law for all claimants.12
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the January 24, 2017 OWCP decision.
Utilizing a consistent method for calculating permanent impairment for upper extremities applied
uniformly, and after such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.13
CONCLUSION
The Board finds the case is not in posture for decision with respect to appellant’s left
upper extremity permanent impairment.

9

Isidoro Rivera, 12 ECAB 348 (1961).

10

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

11

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

12

Supra note 10.

13

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

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 24, 2017 is set aside and the case is remanded for further
action consistent with this decision of the Board.
Issued: October 23, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0177
Issued: September 3, 2021

Case Submitted on the Record

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

JURISDICTION
On October 30, 2019 appellant filed a timely appeal from two May 16, 2019 merit
decisions 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
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,500.86, for the periods June 28 through July 27, 2013 and January 12 through
March 8, 2014, because he improperly received wage-loss compensation at an augmented
compensation rate; (2) whether he received an overpayment of compensation in the amount of
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 16, 2019 decisions, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

$67,945.28, for the period June 28, 2013 through September 16, 2017, because he improperly
received an attendant allowance; (3) whether OWCP properly found appellant at fault in the
creation of the $1,500.86 and $67,945.28 overpayments, thereby precluding waiver of recovery of
the overpayments; and (4) whether it properly required recovery of the $1,500.86 and $67,945.28
overpayments by deducting $254.93 and $764.81, respectively, from appellant’s continuing
compensation payments every 28 days.
FACTUAL HISTORY
OWCP accepted that on November 14, 1973 appellant, then a 46-year-old engineer,
sustained a head contusion, vitreous detachment of the left eye, and cervical, lumbosacral, and
right ankle strains due to a motor vehicle accident which occurred while in the performance of
duty. It also accepted that he sustained a head contusion, and cervical, lumbosacral, and right
ankle sprains due to a December 14, 1983 fall at work. Appellant last worked for the employing
establishment on December 14, 1983 and OWCP paid him wage-loss compensation for disability
from work on the supplemental and periodic rolls.
The case record reflects that on January 15, 1998 OWCP authorized appellant to receive
an attendant allowance at a minimum rate of $1,384.62 every 28 days in order to compensate for
his wife’s attending to his daily needs.
The case record contains several Form EN1032 documents, in which OWCP informed him
that the basic rate of compensation was 66 2/3 percent of the applicable pay rate if he had no
eligible dependents within the meaning of FECA. OWCP further noted that compensation was
payable at 75 percent of the applicable pay rate if he had one or more eligible dependents. It
informed appellant that he could claim additional compensation for a dependent if he had a spouse
who was a member of his household or, under specified circumstances, a child or parent dependent
upon his support. He had been paid at the augmented rate as his wife was a dependent. Appellant
completed those forms between January 10, 1986 and December 13, 2013.
In a Form EN1032, signed on December 13, 2013, appellant advised OWCP that his wife
had passed away on June 27, 2013 and he, therefore, no longer had a dependent for benefit rate
purposes.3
In an April 4, 2019 notice, OWCP advised appellant of its preliminary determination that
he had received an overpayment of compensation in the amount of $1,500.86, for the periods
June 28 through July 27, 2013 and January 12 through March 8, 2014, because he received

3

On June 29, 2013 OWCP paid appellant $5,384.34 in compensation for the period covering June 2 through
29, 2013. On July 27, 2013 it paid him $5,384.34 in compensation for the period covering June 30 through
July 27, 2013. On February 8, 2014 OWCP paid appellant $5,374.66 in compensation for the period January 12
through February 8, 2014.

2

augmented compensation at the 75 percent pay rate to which he was not entitled.4 It provided a
calculation of the overpayment, noting that appellant had a weekly pay rate of $4,400.00 and that
proper application of the 66 2/3 pay rate meant that he was entitled to $4,191.43 for the period
June 28 through July 27, 2013 and $7,840.86 for the period January 12 through March 8, 2014,
with the two figures totaling $12,032.29. However, appellant actually received $4,714.29 and
$8,818.86 for those respective periods, for a total of $13,533.15. OWCP found a $1,500.86
overpayment by subtracting $12,032.29 from $13,533.15.5
It also made a preliminary
determination that appellant was at fault in the creation of the overpayment because he accepted
payments that he knew, or reasonably should have known, to have been incorrect. OWCP advised
him that he could submit evidence challenging the fact, amount, or finding of fault and request
waiver of the overpayment. It informed appellant that he could submit additional evidence in
writing or at pre-recoupment hearing, but that a pre-recoupment hearing must be requested within
30 days of the date of the written notice of overpayment. OWCP requested that he complete and
return an enclosed overpayment recovery questionnaire (Form OWCP-20) within 30 days to be
considered regarding the questions of waiver and method of recovery of the overpayment.
In a separate April 4, 2019 notice, OWCP advised appellant of its preliminary
determination that he received a $67,945.28 overpayment of compensation for the period June 28,
2013 through September 16, 2017 because he received an attendant allowance every 28 days
during this period for which he did not qualify following the death of his wife. It indicated that he
received $67,945.28 in attendant allowance compensation for the period June 28, 2013 through
September 16, 2017, but was not entitled to receive any portion of this amount because the entire
payment period occurred after his wife’s death.6 OWCP also made a preliminary determination
that appellant was at fault in the creation of the overpayment because he accepted payments that
he knew, or reasonably should have known, to have been incorrect. It advised appellant regarding
his options for challenging the fact, amount, or finding of fault, and for requesting waiver of
4

In a June 5, 2018 notice, OWCP had previously advised appellant of its preliminary determination that he received
a $58,481.20 overpayment of compensation for the period June 27, 2013 through September 16, 2017. In response to
its request, appellant submitted an overpayment recovery questionnaire (Form OWCP-20), signed on July 2, 2018, in
which he reported monthly income of $8,206.00, monthly expenses of $2,900.00, and as sets of $21,000.00. A
telephonic pre-recoupment hearing was held on November 16, 2018 before a representative of OWCP’s Branch of
Hearings and Review and, by decision dated February 14, 2019, OWCP’s hearing representative advised that further
development was required (including a more detailed explanation of the manner of the creation of the overpayment)
before a final overpayment decision could be issued.
5

The case record contains payroll records and an April 4, 2019 manual adjustment form detailing the calculation
of the $1,500.86 overpayment for the periods June 28 through July 27, 2013 and January 12 through March 8, 2014.
The period June 28 through July 27, 2013 was covered by two electronic bank deposits. The first deposit was made
on June 29, 2013 and covered the period June 2 through 29, 2013, thereby coinciding with the overpayment period
for the last two days covered by the deposit (June 28 and 29, 2013). The second deposit was made on July 27, 2013
and covered the period June 30 through July 27, 2013, thereby coinciding with the overpayment period for all the days
covered by the deposit. Appellant had returned six bank deposits covering the perio d July 28, 2013 through
January 11, 2014 and was paid compensation for that period.
6

The case record contains payroll records and an April 4, 2019 manual adjustment form detailing the calculation
of the $67,945.28 overpayment. The documents show that appellant received an attendant allowance of $1,384.62
every 28 days. The first electronic bank deposit which contained a prohibited portion of the $1,384.62 attendant
allowance was made on June 29, 2013 and covered the period June 2 through 29, 2013, thereby coinciding with the
overpayment period for the last two days covered by the deposit (June 28 and 29, 2013). The second electronic bank
deposit which contained a prohibited $1,384.62 attendant allowance was made on July 27, 2013 and covered the period
June 30 through July 27, 2013, thereby coinciding with the overpayment period for all the days covered by the deposit.

3

recovery of the overpayment. OWCP again requested that he complete and return a Form OWCP20 within 30 days.
No response was received.
By decision dated May 16, 2019, OWCP found that appellant received an overpayment of
compensation in the amount of $1,500.86 for the periods June 28 through July 27, 2013 and
January 12 through March 8, 2014 because he improperly received wage-loss compensation at an
augmented compensation rate. It also found him at fault in the creation of the $1,500.86
overpayment, thereby precluding waiver of recovery of the overpayment. OWCP found appellant
at fault in the creation of the $1,500.86 overpayment because he neglected to provide notification
within 90 days of the change in his dependency status and he knowingly continued to receive
compensation at a pay rate to which he was not entitled. It denied waiver of recovery of the
overpayment as he did not respond to its April 4, 2019 request for financial information and
determined that recovery of the $1,500.86 overpayment would be made by deducting $254.93 from
his continuing compensation payments every 28 days.
By separate decision dated May 16, 2019, OWCP found that appellant received an
overpayment of compensation in the amount of $67,945.28 for the period June 28, 2013 to
September 16, 2017, because he improperly received an attendant allowance. It further determined
that he was at fault in the creation of the $67,945.28 overpayment, thereby precluding waiver of
recovery of the overpayment. OWCP noted that appellant’s wife had been authorized since 1998
to provide attendant services and appellant should have reasonably known that the payments he
received following her death were incorrect and that he was no longer entitled to receive the
attendant allowance. It determined that recovery of the $67,945.28 overpayment would be made
by deducting $764.81 from appellant’s continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of his duty. 7 When
an overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which the individual is entitled.”8
If the disability is total, the United States shall pay the employee during the period of total
disability the basic compensation rate of 66 2/3 percent of his or her monthly pay. A disabled
employee is entitled to an augmented compensation rate of 75 percent if he or she has one or more
dependents.9 If a claimant received compensation at the augmented rate during a period when he
or she did not have an eligible dependent, the difference between the compensation that was

7

5 U.S.C. § 8102(a).

8

Id. at § 8129(a).

9

See O.R., 59 ECAB 432, 436 (2008). See also 5 U.S.C. §§ 8105(a) and 8110(b).

4

disbursed at the 75 percent augmented rate and the compensation that should have been disbursed
at the 66 2/3 percent basic rate constitutes an overpayment of compensation. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$1,500.86 for the periods June 28 through July 27, 2013 and January 12 through March 8, 2014
because he improperly received wage-loss compensation at an augmented compensation rate.
For the periods June 28 through July 27, 2013 and January 12 through March 8, 2014,
appellant received augmented compensation at the 75 percent pay rate (for a claimant with at least
one dependent) to which he was not entitled because his wife had passed away on June 27, 2013
and he no longer had a dependent within the meaning of FECA.11 OWCP provided a calculation
of the overpayment, noting that appellant had a weekly pay rate of $4,400.00 and that proper
application of the 66 2/3 pay rate meant that he was entitled to $4,191.43 for the period June 28
through July 27, 2013 and $7,840.86 for the period January 12 through March 8, 2014, with the
two figures, totaling $12,032.29. However, appellant actually received $4,714.29 and $8,818.86
for those respective periods, totaling $13,533.15; therefore the $1,500.86 overpayment was
derived by subtracting $12,032.29 from $13,533.15. For these reasons, the Board finds that
appellant received a $1,500.86 overpayment of compensation for the periods June 28 through
July 27, 2013 and January 12 through March 8, 2014.
LEGAL PRECEDENT– ISSUE 2
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly compensation. 12
Section 8111 of FECA provides that the Secretary of Labor may pay an employee who has been
awarded compensation an additional sum of not more than $1,500.00 a month, as the Secretary
considers necessary, when the Secretary finds that the service of an attendant is necessary
constantly because the employee is totally blind or has lost the use of both hands or both feet or is
paralyzed and unable to walk or because of other disability resulting from the injury making him
or her so helpless as to require constant attendance. 13 As noted above, when an overpayment has
been made to an individual because of an error of fact or law, adjustment shall be made under
regulations prescribed by the Secretary of Labor by decreasing later payments to which the
individual is entitled.”14

10

See C.F., Docket No. 18-1344 (issued August 22, 2019); Ralph P. Beachum, Sr., 55 ECAB 442, 445 (2004).

11

See supra notes 8 and 9.

12

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

13

5 U.S.C. § 8111. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating
Medical Evidence, Chapter 2.810.21 (September 2010).
14

See supra note 7.

5

ANALYSIS -- ISSUE 2
The Board finds that appellant received an overpayment of compensation in the amount of
$67,945.28 for the period June 28, 2013 through September 16, 2017 because he improperly
received an attendant allowance.
On January 15, 1998 OWCP authorized appellant to receive an attendant allowance at a
minimum rate of $1,384.62 every four weeks in order to compensate for his wife’s attending to his
daily needs.15 For the period June 28, 2013 through September 16, 2017, appellant received an
attendant allowance every 28 days during this period for which he did not qualify because his wife,
who had served as his attendant, had died on June 27, 2013. The case record contains documents
showing that appellant received $67,945.28 in attendant allowance compensation for the period
June 28, 2013 through September 16, 2017, but was not entitled to receive any portion of this
amount because the entire payment period fell after his wife’s death. For these reasons, the Board
finds that appellant received a $67,945.28 overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of FECA16 provides that [a]djustment 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 this subchapter or would be against
equity and good conscience. Section 10.433 of OWCP’s implementing regulations17 provides that
in determining whether a claimant is at fault, it will consider all pertinent circumstances. An
individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”
The Board has held that an employee who receives payments from OWCP in the form of
direct deposit may not be at fault the first or second time incorrect funds are deposited into his or
her account, as the acceptance of the resulting overpayment lacks the requisite knowledge. 18 The
Board has also held in cases involving a series of incorrect payments, where the requisite
knowledge is established by a letter or telephone call from OWCP or simply with the passage of
time and a greater opportunity for discovery, the claimant will be at fault for accepting the

15

See supra notes 11 and 12.

16

5 U.S.C. § 8129(b).

17

20 C.F.R. § 10.433.

18

See M.J., Docket No. 19-1665 (issued July 29, 2020); Tammy Craven, 57 ECAB 689 (2006).

6

payments subsequently deposited. 19 Previous cases have held that receiving one or two erroneous
direct deposit payments does not necessarily create the requisite knowledge to find that a claimant
was at fault in the creation of the overpayment. 20
ANALYSIS -- ISSUE 3
The Board finds that OWCP improperly found appellant at fault in the creation of the
$1,500.86 overpayment for the period June 28 through July 27, 2013, but properly found him at
fault for the period January 12 through March 8, 2014.
OWCP determined that appellant was at fault in the creation of the overpayment because
he accepted payments that he knew or should have known to have been incorrect. The Board finds,
however, that OWCP failed to establish that, at the time appellant accepted the initial two payments
of compensation following June 27, 2013, the date of his wife’s death, he knew or should have
known the payments to have been incorrect.
As noted above, OWCP properly found that appellant received an overpayment of
compensation in the amount of $1,500.86 for the periods June 28 through July 27, 2013 and
January 12 through March 8, 2014 because he improperly received wage-loss compensation at an
augmented compensation pay rate after his wife’s death. The period June 28 through July 27, 2013
was covered by two electronic bank deposits. The first deposit was made on June 29, 2013 and
covered the period June 2 through 29, 2013, thereby coinciding with the overpayment period for
the last two days covered by the deposit (June 28 and 29, 2013). The second deposit was made on
July 27, 2013 and covered the period June 30 through July 27, 2013, thereby coinciding with the
overpayment period for all the days covered by the deposit.
As discussed, in cases where a claimant receives compensation through direct deposit,
OWCP must establish that at the time a claimant received the direct deposit in question that he or
she knew or should have known that the payment was incorrect. 21 The Board has held that an
employee who receives payments from OWCP in the form of a direct deposit may not be at fault
for the first incorrect deposit into his or her account since the acceptance of the overpayment, at
the time of receipt of the direct deposit, lacks the requisite knowledge.22 Because fault is defined
by what the claimant knew or should have known at the time of acceptance, one of the
consequences of electronic fund transfers is that the claimant lacks the requisite knowledge at the
time of the first incorrect payment.23 Whether or not OWCP determines that an individual is at
fault with respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment.24 It is not appropriate, however, to make a finding that a claimant has accepted an
overpayment through direct deposit until such time as a reasonable person would have been aware
19

See J.W., Docket No. 10-1271 (issued February 3, 2011); see also Karen Dixon, 56 ECAB 145 (2004).

20

V.S., Docket No. 13-1278 (issued October 23, 2013).

21

See C.K., Docket No. 12-0746 (issued May 1, 2012).

22

See M.J., supra note 18; see also George A. Hirsch, 47 ECAB 520 (1996).

23

Id.

24

Id.; see also K.D., Docket No. 13-0451 (issued April 12, 2013).

7

that this overpayment had occurred. This awareness could be established either through
documentation such as a bank statement or notification from OWCP or where a reasonable period
of time has passed during which a claimant could have reviewed independent confirmation of the
incorrect payment.25
Appellant received compensation by direct deposit payments every 28 days. With respect
to the $1,500.86 overpayment, the evidence of record does not establish that, as of the first and
second direct deposits of compensation after June 27, 2013, he knew or reasonably should have
known that he was accepting direct deposits to which he was not entitled. There is no
documentation or other evidence to demonstrate that appellant had clear knowledge at the time he
received direct deposits from OWCP on June 29 and July 27, 2013, covering the period of the
overpayment from June 28 through July 27, 2013, that the payments were incorrect, or that a
reasonable period of time passed during which he could have reviewed bank statements or been
informed of the incorrect payment. Therefore, he is not at fault in the acceptance of the two direct
deposit covering the period of the overpayment from June 28 through July 27, 2013.
In cases involving a series of incorrect payments, where the requisite knowledge is
established by documentation from OWCP or simply with the passage of time and opportunity for
discovery, the claimant will be at fault for accepting the payments subsequently deposited. 26 By
the time of the February 8, 2014 payment covering the period January 12 to February 8, 2014,
appellant knew or should have known that he was not entitled to receive wage-loss compensation
at the augmented pay rate.27
Accordingly, the Board will affirm the finding of fault for the remaining period of
$1,500.86 overpayment, i.e., January 12 through March 8, 2014.
The Board further finds that OWCP improperly found appellant at fault in the creation of
the $67,945.28 overpayment for the period June 28 through July 27, 2013, but properly found him
at fault for the period July 28, 2013 through September 16, 2017.
As noted above, appellant received an overpayment of compensation in the amount of
$67,945.28 for the period June 28, 2013 through September 16, 2017 because he improperly
received an attendant allowance ($1,384.62 every 28 days) after his wife died on June 27, 2013.
The first electronic bank deposit which included a prohibited portion of the $1,384.62 attendant
allowance was made on June 29, 2013 and covered the period June 2 through 29, 2013, thereby
coinciding with the overpayment period for the last two days covered by the deposit (June 28 and
29, 2013). The second electronic bank deposit which included a prohibited $1,384.62 attendant
allowance was made on July 27, 2013 and covered the period June 30 through July 27, 2013,
thereby coinciding with the overpayment period for all the days covered by the deposit.
With respect to the $67,945.28 overpayment, the evidence of record does not establish that,
as of the first and second direct deposits of compensation after June 27, 2013, appellant knew or
reasonably should have known that he was accepting direct deposits, including compensation for
25

See K.H., Docket No. 06-0191 (issued October 30, 2006).

26

See supra note 18.

27

See supra note 24.

8

an attendant allowance, to which he was not entitled. There is no documentation or other evidence
to demonstrate that he had clear knowledge at the time he received direct deposits from OWCP on
June 29 and July 27, 2013, covering the period of the overpayment from June 28 through July 27,
2013, that the payments were incorrect, or that a reasonable period of time passed during which
he could have reviewed bank statements or been informed of the incorrect payment. Therefore,
appellant is not at fault in the acceptance of the two direct deposits covering the period of the
overpayment from June 28 through July 27, 2013.28
As noted above, in cases involving a series of incorrect payments, where the requisite
knowledge is established by documentation from OWCP or simply with the passage of time and
opportunity for discovery, the claimant will be at fault for accepting the payments subsequently
deposited.29 By the time of the third payment dated August 24, 2013, given the passage of time,
appellant knew or should have known that he was not entitled to receive an attendant allowance
after the June 27, 2103 death of his wife. 30
Accordingly, the Board will affirm the finding of fault for the remaining period of
$67,945.28 overpayment, i.e., July 28, 2013 through September 16, 2017.
With respect to both the $1,500.86 and $67,945.28 overpayments, this case is not in posture
for decision regarding the issue of waiver of recovery of the overpayments created by the June 29
and July 27, 2013 direct deposits covering the period of each overpayment from June 28 through
July 27, 2013. The case must therefore be remanded for OWCP in order to determine whether
appellant is entitled to waiver of recovery for these direct deposits of compensation covering the
period of each overpayment from June 28 through July 27, 2013.31 As appellant’s eligibility for
waiver for a portion of the overpayments cannot yet be determined, on remand OWCP shall grant
appellant an opportunity to submit an updated Form OWCP-20 and consider the relevant financial
evidence on this issue. Following this and all other development deemed necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$1,500.86 for the periods June 28 through July 27, 2013 and January 12 through March 8, 2014
because he improperly received wage-loss compensation at an augmented compensation rate, and
an overpayment in the amount of $67,945.28 for the period June 28, 2013 to September 16, 2017
because he improperly received an attendant allowance. The Board finds that OWCP improperly
found appellant at fault in the creation of the $1,500.86 overpayment for the period June 28 through
July 27, 2013, but properly found him at fault for the period January 12 through March 8, 2014.
The Board finds that OWCP improperly found appellant at fault in the creation of the $67,945.28

28

Id.

29

See J.W., Docket No. 10-1271 (issued February 3, 2011); see also Karen Dixon, 56 ECAB 145 (2004).

30

Id.

31

In light of the Board’s disposition of Issue 3, it is premature to address Issue 4.

9

overpayment for the period June 28 through July 27, 2013, but properly found him at fault for the
period July 28, 2013 through September 16, 2017.
ORDER
IT IS HEREBY ORDERED THAT the May 16, 2019 decisions of the Office of Workers’
Compensation Programs are affirmed in part, and set aside in part. The case is remanded to OWCP
for further proceedings consistent with this decision of the Board.
Issued: September 3, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10


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

)
)
)
)
)
)
)
)

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

Docket No. 19-0925
Issued: September 25, 2019

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 March 27, 2019 appellant, though counsel, filed a timely appeal from a March 8, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On June 15, 2015 appellant, then a 57-year-old customer care agent,3 filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to
factors of her federal employment. She alleged that her work duties increased and thereby caused
increased symptoms. Appellant asserted that she first became aware of her claimed condition on
February 7, 2000 and first realized its relation to her federal employment on March 28, 2015. She
stopped work on March 17, 2015.4
Appellant submitted several medical reports in support of her claim, including a June 4,
2015 report from Dr. Sophia Grias-Radwanski, a Board-certified physical medicine and
rehabilitation physician. Dr. Grias-Radwanski diagnosed moderate bilateral carpal tunnel
syndrome, bilateral cubital tunnel syndrome, and neck pain with radiculopathy symptoms (as
reported by appellant, but not seen on diagnostic testing).
In a July 23, 2015 development letter, OWCP requested that appellant submit additional
factual and medical evidence in support of her occupational disease claim, including a description
of the work duties which she believed caused or aggravated her medical condition. In response,
appellant submitted a statement in which she described her work duties, including the typing and
mouse usage required by her job as a customer care agent. She asserted that her use of a headset
placed pressure on her neck and shoulders, and she claimed that her work caused injury to her
upper extremities, neck, and shoulders.5 Appellant also submitted additional reports of Dr. GriasRadwanski and other attending physicians.
By decision dated September 24, 2015, OWCP denied appellant’s present occupational
disease claim because she had not established the factual component of fact of injury. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.

3

Appellant had worked on a full-time basis as a customer care agent since January 19, 2013. Her work duties
included typing on a computer keyboard and using a computer mouse in order to address customer inquiries. Appellant
was required to engage in intermittent hand and wrist movements and she had the option to sit or stand as tolerated.
4

The present claim was assigned OWCP File No. xxxxxx503. Appellant has a prior claim under OWCP File No.
xxxxxx427, for which she filed an occupational disease claim (Form CA-2) in January 2003. In March 2003 OWCP
accepted the claim for bilateral carpal tunnel syndrome. Appellant filed a notice of recurrence (Form CA-2a) in
October 2008 alleging a recurrence of disability due to the accepted bilateral carpal tunnel syndrome condition.
OWCP converted appellant’s recurrence claim to a claim for a new occupational injury, assigned OWCP File No.
xxxxxx340 and, in May 2009, it accepted that claim for aggravation of bilateral carpal tunnel syndrome. It has
administratively combined OWCP File Nos. xxxxxx427, xxxxxx340, and xxxxxx503, with OWCP File No.
xxxxxx427 designated as the master file.
5
Appellant asserted that the job she performed prior to working as a customer care agent required her to periodically
take her headset off and then put it back on.

2

On October 21, 2015 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review. By decision dated February 2, 2016, OWCP’s
hearing representative set aside OWCP’s September 24, 2015 decision and remanded the case to
OWCP for further development of the evidence, to be followed by issuance of a de novo decision.6
On remand, OWCP referred appellant for a second opinion examination with Dr. Allen L.
Babcock, a Board-certified orthopedic surgeon. It requested that he provide an opinion regarding
whether appellant sustained a new occupational injury. In a May 11, 2016 report, Dr. Babcock
indicated that appellant might have bilateral carpal tunnel syndrome and he indicated that he could
not identify an aspect of appellant’s work duties which would have caused or aggravated a medical
condition. He advised that appellant could work as a telephone operator.
In July 25 and 27, 2016 reports, Dr. Grias-Radwanski diagnosed moderate bilateral carpal
tunnel syndrome, bilateral cubital tunnel syndrome, bilateral ulnar neuropathy, myofascial neck
pain with cervical disc herniation, and rotator cuff tendinitis/tear of the left shoulder. In her
July 27, 2016 report, she opined that these medical conditions were caused or aggravated by
appellant’s employment activities.
In a September 28, 2016 memorandum, OWCP advised that it had found a conflict in the
medical opinion evidence between Dr. Grias-Radwanski and Dr. Babcock regarding whether
appellant sustained a new occupational injury due to employment factors. It referred appellant for
an impartial medical examination with Dr. Joseph Salama, a Board-certified orthopedic surgeon.
OWCP requested that Dr. Salama provide an opinion regarding whether appellant sustained a new
occupational injury.
In an October 31, 2016 report, Dr. Salama noted that appellant had significant arthritis in
her cervical spine which was the result of a natural degenerative process and was not causally
related to her work.7 He advised that he was unable to say with any certainty if there was a causal
relationship between appellant’s employment and her bilateral carpal tunnel syndrome or left
cubital tunnel syndrome. Dr. Salama also noted, “I do however believe that her employment may
have aggravated these conditions.” On February 16, 2017 he advised OWCP that he had reviewed
additional medical records, but noted that these records did not change his October 31, 2016
opinion.8

6

The hearing representative acknowledged that appellant had submitted a detailed statement describing her work
duties.
7

Dr. Salama also noted that electromyogram and nerve conduction velocity (EMG/NCV) testing showed that
appellant had bilateral carpal tunnel syndrome as well as left cubital tunnel syndrome without evidence of active
denervation in the thenar muscle group or ulnar-inverted hand/forearm muscles.
8

On November 11, 2016 OWCP requested a supplemental report from Dr. Babcock. In a November 23, 2016
report, Dr. Babcock noted that appellant had not worked since March 17, 2015 and he maintained that she had not
suffered an employment-related aggravation of her medical condition. He believed that appellant could work on a
full-time basis as a telephone operator with occasional use of a keyboard and mouse. It is unclear from the case record
why OWCP requested a supplemental report from Dr. Babcock after declaring a conflict in the medical opinion
evidence.

3

On March 10, 2017 OWCP requested that Dr. Salama provide a supplemental report which
included a definitive opinion as to whether appellant’s upper extremity conditions were aggravated
by her employment activities. Dr. Salama did not provide a supplemental report and OWCP
referred appellant for new impartial medical examination with Dr. Scott T. Monson, a Boardcertified orthopedic surgeon. OWCP requested that Dr. Monson provide an opinion regarding
whether appellant sustained a new occupational injury.
In an October 30, 2017 report, Dr. Monson noted that his examination revealed that
appellant appeared to have mild bilateral carpal tunnel syndrome from a clinical standpoint. He
noted that her carpal tunnel condition continued even though she had not worked in over two years
and he opined that the condition was “likely not work related in this instance.” Dr. Monson
indicated that appellant could work as a customer care agent.
By decision dated November 20, 2017, OWCP denied appellant’s claim, noting that the
special weight of the medical opinion evidence rested with the well-rationalized opinion of
Dr. Monson.
On November 28, 2017 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. Prior to the hearing being held,
OWCP’s hearing representative issued a decision on April 20, 2018 by which she set aside the
November 20, 2017 decision and remanded the case to OWCP for additional development, to be
followed by issuance of a de novo decision. She indicated that a request should be made for
Dr. Monson to provide a supplemental report.
Dr. Monson did not provide a supplemental report and, in June 2018, OWCP referred
appellant for an impartial medical examination to Dr. Clifford M. Buchman, a Board-certified
orthopedic surgeon. OWCP requested that Dr. Buchman provide an opinion regarding whether
appellant had carpal tunnel syndrome, ulnar neuropathy, myofascial neck pain with cervical disc
herniation, or rotator cuff tendinitis tear of the left shoulder. It further requested that, if appellant
had any of these conditions, Dr. Buchman should indicate whether they were caused or aggravated
by employment factors.
In a July 28, 2018 report, Dr. Buchman discussed appellant’s factual and medical history,
including her work as a customer care agent from January 2013 to March 2015. He reported the
findings of his physical examination, noting that there was no atrophy in appellant’s upper
extremities and that the results were negative for Phalen’s, Tinel’s, Finkelstein’s, and Allen’s tests.
Dr. Buchman reported good upper extremity strength with normal sensation to pinprick.9 He
reported findings upon range of motion testing of the cervical spine and noted that the Spurling’s
test was negative. With respect to the shoulders, Dr. Buchman noted that impingement was
negative and that strength in the relevant muscle groups was excellent. He diagnosed negative
examination for carpal tunnel syndrome, ulnar neuropathy, cervical spine, and shoulder rotator
cuff tear. Dr. Buchman also noted that the upper extremity examination revealed no clinical signs
of cubital tunnel syndrome and that the shoulder examination showed no evidence of pathology.

9
Dr. Buchman noted that appellant exhibited weakness upon grip testing, but he opined that the test results had
questionable validity.

4

Upon the cervical examination, appellant had full range of motion of the cervical spine and did not
exhibited any pain or spasm.
Dr. Buchman advised that the examination of appellant’s shoulders was negative, noting
that she might have symptoms in her shoulders, but did not have clinical findings. He indicated
that an April 2016 magnetic resonance imaging (MRI) scan of appellant’s left shoulder was
positive for a very small tear of the supraspinatus tendon and that a June 2015 MRI scan of her
cervical spine showed some degenerative changes which were normal with aging. Dr. Buchman
indicated that June 2015 EMG/NCV findings were negative for appellant’s hands, although she
previously had mildly positive EMG/NCV findings. He maintained that appellant’s use of
headsets would not have been a factor in causing any of her symptom complexes. Dr. Buchman
advised that appellant’s clinical findings during the July 28, 2018 examination were negative and
opined that none of her employment activities would have caused or aggravated her carpal tunnel,
cubital tunnel, neck, or shoulder complaints/conditions.
By decision dated August 23, 2018, OWCP denied appellant’s claim, finding that the
special weight of the medical opinion evidence rested with the well-rationalized opinion of
Dr. Buchanan, the impartial medical specialist.
On August 29, 2018 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on January 9,
2019, appellant provided further details regarding the repetitive work duties, including typing and
handling her headset, which she believed caused her to develop several medical conditions.
By decision dated March 8, 2019, OWCP’s hearing representative affirmed OWCP’s
August 23, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA10 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,11 that an injury was sustained in the performance of duty as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.12 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.13
10

Supra note 2.

11

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
12

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
13
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

5

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.14
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.15 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the established employment factors.16
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”17 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.18
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
OWCP properly determined that there was a conflict in the medical opinion evidence
between Dr. Grias-Radwanski, an attending physician, and Dr. Babcock, an OWCP referral
physician, on the issue of whether appellant sustained a medical condition causally related to her
accepted employment factors. In order to resolve the conflict, OWCP properly referred appellant,
pursuant to section 8123(a) of FECA, to Dr. Buchman, a Board-certified orthopedic surgeon, for
an impartial medical examination and an opinion on the matter.19
14

E.V., Docket No. 18-1617 (issued February 26, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

15

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

16

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

17

5 U.S.C. § 8123(a).

18

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
19

See supra note 16. OWCP had referred appellant for prior impartial medical examinations, first to Dr. Salama
and later to Dr. Monson. However, the impartial medical specialists failed to provide supplemental reports explaining
their initial reports and, therefore, it was appropriate for OWCP to refer appellant to Dr. Buchman. See generally S.R.,
Docket No. 17-1118 (issued April 5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988) (regarding
OWCP’s duty to obtain supplemental reports from impartial medical specialists when necessary for clarification).

6

In a July 28, 2018 report, Dr. Buchman noted that appellant’s upper extremities were
negative for Phalen’s, Tinel’s, Finkelstein’s, and Allen’s tests and that she had good upper
extremity strength with normal sensation to pinprick. He noted that range of motion of the cervical
spine was normal and that strength in the muscle groups of the shoulders was excellent.
Dr. Buchman diagnosed negative examination for carpal tunnel syndrome, ulnar neuropathy,
cervical spine, and shoulder rotator cuff tear, and he also noted that the upper extremity
examination revealed no clinical signs of cubital tunnel syndrome. He indicated that appellant’s
June 2015 MRI scan cervical spine scan showed some degenerative changes which were normal
with aging and that her June 2015 EMG/NCV testing was negative for upper extremity findings.
Dr. Buchman concluded that her clinical findings during the July 28, 2018 examination were
negative and he opined that none of her employment activities would have caused or aggravated
her ostensible carpal tunnel, cubital tunnel, neck, or shoulder conditions.20
The Board finds that the special weight of the medical evidence is represented by the
thorough, well-rationalized opinion of Dr. Buchman, the impartial medical specialist selected to
resolve the conflict in the medical opinion.21 Dr. Buchman’s July 25, 2018 report establishes that
appellant did not sustain a medical condition causally related to her accepted employment factors.
The Board has carefully reviewed the opinion of Dr. Buchman and notes that it has reliability,
probative value, and convincing quality with respect to its conclusions regarding the relevant issue
of the present case. Dr. Buchman provided a thorough factual and medical history and accurately
summarized the relevant medical evidence. He provided medical rationale for his opinion by
explaining that appellant’s clinical findings during the July 28, 2018 examination were negative.
Dr. Buchman further explained that appellant’s employment activities would not have been
competent to cause or aggravate her claimed upper extremity, neck, or shoulder conditions.22
As the evidence of record is insufficient to overcome the special weight accorded to
Dr. Buchman, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.

20

In particular, Dr. Buchman indicated that appellant’s use of headsets would not have been a factor in causing any
of her symptom complexes.
21

See supra note 17.

22

See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443 (1987) (regarding the
importance, when assessing medical evidence, of such factors as a physician’s knowledge of the facts and medical
history, and the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion).

7

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 25, 2019
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Compton, CA Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0763
Issued: September 14, 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 February 21, 2017 appellant filed a timely appeal from a December 14, 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 the claim.
ISSUE
The issue is whether appellant met his burden of proof to establish more than 46 percent
permanent impairment of his left upper extremity, for which he previously received a schedule
award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances of the
prior Board decision are incorporated herein by reference. The relevant facts are as follows.
Appellant, a 62-year-old former carrier technician, has an accepted occupational disease claim
(Form CA-2) for arthralgia of the left thumb metacarpophalangeal (MCP) joint, left shoulder
strain, and left shoulder impingement syndrome, which arose on or about September 3, 1996.
That claim was assigned OWCP File No. xxxxxx760. Appellant also has an accepted
occupational disease claim for right thumb degenerative arthritis and right shoulder impingement
syndrome, which arose on or about July 20, 1994 under OWCP File No. xxxxxx400.3 The two
upper extremity occupational disease claims have been combined under Master File No.
xxxxxx760.
On July 14, 1998 OWCP granted appellant a schedule award for 20 percent permanent
impairment of his left upper extremity. On March 9, 2000 it awarded an additional 21 percent
impairment, for a total of 41 percent permanent impairment of appellant’s left upper extremity.
Appellant appealed to the Board. By decision dated April 20, 2001, the Board affirmed OWCP’s
March 9, 2000 decision, finding that appellant had no more than 41 percent permanent
impairment of his left upper extremity.4
Appellant stopped work on September 20, 2007. Effective September 21, 2007, he
received a disability retirement annuity from the Office of Personnel Management (OPM).
On August 6, 2013 appellant underwent OWCP-approved left shoulder arthroscopic
surgery. Following surgery, he opted to receive FECA wage-loss compensation benefits in lieu
of OPM benefits.
On December 7, 2015 appellant filed a claim for an additional schedule award
(Form CA-7).
In an April 3, 2015 report, Dr. Samy F. Bishai, a Board-certified orthopedic surgeon,
indicated that appellant had reached maximum medical improvement (MMI) on April 1, 2015.
Appellant’s left shoulder diagnoses included internal derangement, rotator cuff syndrome,
impingement syndrome, and status post arthroscopic surgery for treatment of left shoulder
impingement syndrome. Utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (2009) (A.M.A., Guides), Dr. Bishai found
24 percent left upper extremity permanent impairment based on loss of shoulder range of motion

2

Docket No. 00-2026 (issued April 20, 2001).

3

Appellant also received several schedule awards totaling 46 percent permanent impairment of his right upper
extremity.
4

See supra note 2.

2

(ROM) under Table 15-34.5 He noted that he utilized the stand alone ROM method to calculate
permanent impairment because loss of motion represented the most disabling aspect of
appellant’s injuries, and it affected him the most with respect to both work and activities of daily
living.
In a May 1, 2016 report, OWCP’s district medical adviser (DMA), Dr. Morley Slutsky,
Board-certified in occupational medicine, reviewed the medical record, including Dr. Bishai’s
report. He noted that Dr. Bishai used the “less preferred” ROM methodology, and his reported
measurements were not in accordance with the procedures proscribed in section 15.7a, A.M.A.,
Guides 464 (6th ed. 2009). The DMA further indicated that the diagnosis-based impairment
(DBI) method was the “preferred rating methodology” under the A.M.A., Guides (6th ed. 2009),
and that appellant’s most impairing diagnosis was labral injury in the left shoulder. He noted
that, under Table 15-5, pages 401-405, shoulder regional grid, for this diagnosis, appellant had
class 1 impairment with a default value of three percent. The DMA found a modifier of 1 for
functional history, Table 15-7, page 406, modifier of 1 for physical examination, Table 15-8,
page 408, and modifier of 1 for clinical studies, Table 15-9, page 410. After applying the net
adjustment formula, Dr. Slutsky concluded that appellant had three percent left upper extremity
permanent impairment.
On June 23, 2016 OWCP requested that Dr. Slutsky clarify his May 1, 2016 impairment
report. In July 7 and August 12, 2016 addendum reports, the DMA stated that the 3 percent
permanent impairment for the left shoulder was a decrease of 11 percent from the 14 percent left
upper extremity previously accepted for the same shoulder joint. He noted that loss of thumb
ROM and grip strength were independent of the left shoulder impairment. Thus, the medical
adviser concluded that the 41 percent permanent impairment previously accepted in this case was
not affected by the 3 percent left upper extremity permanent impairment assigned for the
shoulder.
By decision dated August 19, 2016, OWCP awarded appellant an additional 3 percent for
left upper extremity permanent impairment, independent from the previously awarded 41
percent. The latest award covered a period of 9.36 weeks from December 13, 2015 to
February 16, 2016.
On October 31, 2016 appellant requested reconsideration.
In a September 22, 2016 report, Dr. Bishai again advised that appellant had reached MMI
on April 1, 2015. He indicated that appellant’s injury to his left shoulder joint left him with a
markedly reduced ROM of the left shoulder joint. Dr. Bishai explained that the use of the DBI
methodology was not recommended for injuries that caused patient’s to suffer loss of ROM as
the primary problem and that the DBI methodology did not take into consideration the
diminished ROM of a joint. He requested that OWCP approve his April 3, 2015 24 percent left
5

A.M.A., Guides 475 (6th ed. 2009). Dr. Bishai indicated that flexion of 70 degrees equaled 9 percent upper
extremity impairment, extension of 10 degrees equaled 2 percent impairment, abduction of 70 degrees equaled 6
percent impairment, adduction of 10 degrees equaled 1 percent impairment, internal rotation of 15 degrees equaled 4
percent impairment, and external rotation of 45 degrees equaled 2 percent impairment. He added the ROM
impairments (9 + 2 + 6 + 1 + 4 + 2), which totaled 24 percent left upper extremity permanent impairment.

3

upper extremity permanent impairment rating. Dr. Bishai stated that the ROM examination was
conducted exactly as the A.M.A., Guides indicated as appellant did warm up movements of the
joint and the joint was examined three different times to get the average of the three. In each
case, the same ROM was found for the three times it was done.
On December 6, 2016 Dr. Slutsky again reviewed the medical record, including
Dr. Bishai’s reports of April 3, 2015 and September 22, 2016. He indicated that Dr. Bishai had
noted that he had performed three measurements per joint motion, which were exactly the same.
The medical adviser applied the ROM measurements using both the shoulder ROM methodology
and the shoulder DBI rating and provided his impairment calculations. He agreed with
Dr. Bishai that there was 24 percent left upper extremity permanent impairment under the ROM
methodology, but now found 4 percent left upper extremity permanent impairment under the
DBI methodology. The medical adviser reported that since the shoulder ROM methodology was
the greater of the two, it would be used for final impairment calculations.
The medical adviser found that per his calculation using the DBI methodology, the final
left upper extremity impairment was 46 percent, which exceeded the previous award of 44
percent by 2 percent upper extremity impairment. He also found that under the ROM
methodology, the final left upper extremity impairment was 58 percent, which exceeded the
previous award of 44 percent by 14 percent upper extremity permanent impairment.
The medical adviser again indicated that Dr. Bishai had used the “less preferred” ROM
methodology with invalid ROM measurements as it was subjective. Under Chapter 15 of the
A.M.A., Guides, which dealt with upper extremity impairments, he noted that the DBI
methodology was to be used in most upper extremity ratings and was the “preferred method.”
The medical adviser noted that Chapter 15 indicated that ROM may be used in special
circumstances as the primary impairment method when no other methods are available. He also
noted that Chapter 15 also provides that ROM is to be used primarily as an adjustment factor, not
the primary rating method. The medical adviser indicated that this specific advice, as found in
the Upper Extremity Chapter of the A.M.A., Guides was specific to upper extremity impairment
calculations as opposed to the nonspecific advice found in Table 2-1, No. 12 page 20, which
indicated that the method producing the higher rating should be used. He also noted that the
A.M.A., Guides page 481 No. 12 indicated that “Only if no other approach is available to rating,
calculate impairment based on ROM, as explained in section 15.7.”
By decision dated December 14, 2016, OWCP vacated its August 19, 2016 decision. It
found that its medical adviser determined that appellant sustained left upper extremity
impairment beyond that which was awarded in the August 19, 2016 decision.
By decision also dated December 14, 2016, OWCP granted appellant an additional
schedule award of 2 percent left upper extremity. This was above the previously paid 44 percent
left upper extremity award, for a total left upper extremity permanent impairment of 46 percent.
The award ran for a total of 6.24 weeks of compensation from February 17 to March 31, 2016.

4

LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA.6 The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.7 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.8 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the American Medical Association, Guides to the Evaluation of
Permanent Impairment as the appropriate standard for evaluating schedule losses.9
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).10 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.11
ANALYSIS
The issue is whether appellant met his burden of proof to establish more than 46 percent
left upper extremity permanent impairment, for which he previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. As of
the December 14, 2016 decision, no consistent interpretation had been followed regarding the
6

5 U.S.C. § 8149.

7

See 20 C.F.R. §§ 1.1-1.4.

8

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

5 U.S.C.

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

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
11

Isidoro Rivera, 12 ECAB 348 (1961).

5

proper use of the DBI or the ROM methodology when assessing the extent of permanent
impairment for schedule award purposes.12 The purpose of the use of uniform standards is to
ensure consistent results and to ensure equal justice under the law to all claimants.13 In T.H., the
Board concluded that OWCP physicians were at odds over the proper methodology for rating
upper extremity impairment, having observed attending physicians, evaluating physicians,
second opinion physicians, impartial medical examiners, and district medical advisers use both
DBI and ROM methodologies interchangeably without any consistent basis.14 Furthermore, the
Board observed that physicians interchangeably cited to language in the first printing or the
second printing when justifying use of either ROM or DBI methodology. Because OWCP’s own
physicians were inconsistent in the application of the A.M.A., Guides, the Board found that
OWCP could no longer ensure consistent results and equal justice under the law for all
claimants.15
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the December 14, 2016 decision. Utilizing
a consistent method for calculating permanent impairment for upper extremities to be applied
uniformly, and such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

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

13

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

14

Supra note 12.

15

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: September 14, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
A.R., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Brooklyn, NY,
Employer
_________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1937
Issued: April 19, 2012

Case Submitted on the Record

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

JURISDICTION
On September 13, 2012 appellant filed a timely appeal from the August 16, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained more
than 19 percent impairment of the left arm for which he received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a June 21, 2012 decision, the Board
set aside OWCP’s October 24, 2011 decision which found that appellant had not established
more than 18 percent impairment of the left arm for which he received a schedule award. The
Board found that OWCP’s medical adviser did not properly apply the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2008) (hereinafter,
A.M.A., Guides). Further, Dr. Hernan Jimenez, a Board-certified internist, did not follow the
appropriate procedures with regard to measuring range of motion. The Board also found that it
was unclear whether the medical adviser was aware of the accepted left rotator cuff syndrome
condition for which appellant underwent surgery on May 13, 2008. The Board remanded the
case for further development of the medical evidence. The facts contained in the prior decision
are incorporated by reference.
On June 20, 2012 OWCP provided its medical adviser with an update regarding the
accepted conditions. It noted that the accepted conditions included brachial neuritis/radiculitis,
cervical radiculopathy, left shoulder bursae/tendons and left rotator cuff rupture.
In a June 29, 2012 report, Dr. James W. Dyer, an OWCP medical adviser, explained that
appellant had 18 percent impairment of the left arm or no additional impairment greater than the
previous rating. He noted that appellant’s left shoulder was repaired in the past and the
maximum impairment allowed under the diagnosis-based method for a full thickness tear of the
rotator cuff was seven percent. Dr. Dyer allowed the range of motion method as it provided for
the higher impairment.
By letter dated July 9, 2012, OWCP referred appellant for a second opinion, together
with a statement of accepted facts, a set of questions and the medical record to Dr. William A.
Somers, a Board-certified orthopedic surgeon.
In a July 27, 2012 report, Dr. Somers noted appellant’s history of injury and treatment
and examined him. He provided findings for the left shoulder which included that the Spurlings
maneuver in flexion and extension produced some aching between the scapulae, but no
radiculopathy. Active elevation of the shoulders was about 90 degrees on the right and 70
degrees on the left. Motor examination was normal except for external rotation of the left
shoulder 4+/B, supraspinatus strength on the left at 4/5. Dr. Somers noted that appellant was
more tender about the right than the left acromioclavicular (AC) joint with definite greater
prominence about the right AC joint. He noted that appellant was more tender about the left than
the right long head of the biceps anteriorly and tender about the lateral and posterior rotator cuff,
greater on the left than the right. Range of motion of the left shoulder while sitting showed 50
degrees external rotation, internal rotation “gets thumb to about L3,” extension was 30 degrees,
flexion 80 degrees, abduction 60 degrees and adduction 20 degrees. While supine on the left,
appellant’s flexion went to 150 degrees, internal rotation 20 degrees, external rotation 60
degrees, abduction 70 degrees and adduction 30 degrees. Dr. Somers diagnosed left rotator cuff
disease and possible rotator cuff arthropathy secondary to the March 30, 2006 injury. He
2

Docket No. 12-207 (issued June 21, 2012).

2

indicated that appellant had arthrofibrosis of the left shoulder with significant posterior capsular
tightness secondary to left rotator cuff disease and status post arthroscopic surgery. Appellant
had degenerative arthritis of left AC joint aggravated by the injury of March 30, 2006 and
degenerative joint disease of the right AC joint with rotator cuff disease, right shoulder, not
related to the injury of March 30, 2006.
Dr. Somers also diagnosed multilevel cervical disc disease with no evidence of radicular
problems and lumbar disc disease. He explained that appellant continued to have left shoulder
problems and that further treatment could decrease his left shoulder pain but would not resolve
his condition. Dr. Somers did not have records to document appellant’s true pathology in the left
shoulder at the time of his surgery. While appellant had a diagnosis which was accepted for
rotator cuff tear, no rotator cuff tear was identified on his magnetic resonance imaging scan.
X-rays showed degenerative arthritis in the left glenohumeral joint. Dr. Somers noted that, if
appellant had a rotator cuff tear or dysfunction of the rotator cuff, he might be developing a
rotator cuff arthropathy, which would be related to his March 30, 2006 injury. He noted that
appellant’s degenerative arthritis of the AC joint was aggravated by the work injury.
Dr. Somers utilized the A.M.A., Guides and explained that, while he reviewed the
diagnosis-based method, the range of motion method yielded a higher result. He referred to
Table 15-34 for shoulder range of motion and determined that flexion of 150 degrees resulted in
three percent impairment, extension of 30 degrees resulted in one percent impairment, internal
rotation of 20 to 30 degrees, resulted in four percent impairment, external rotation of 50 degrees
warranted two percent impairment, abduction of 70 degrees resulted in six percent impairment
and adduction of 20 degrees resulted in one percent impairment.3 Dr. Somers added the values
and determined that appellant had 17 percent impairment of the left arm. He referred to Table
15-35 to determine appellant’s grade modifier.4 Dr. Somers determined that appellant had a net
grade modifier of 2 under which the total range of motion impairment should be increased by 10
percent. He multiplied 10 percent of the 17 percent for range of motion and found 1.7 percent.
Dr. Somers added this to the 17 percent and opined that this would result in an 18.7 percent
impairment, which he rounded up to 19 percent for the left arm.
On August 3, 2012 OWCP provided its medical adviser with a copy of Dr. Somers’
report for review. In an August 13, 2012 report, Dr. Dyer concurred with Dr. Somers with
regards to the additional one percent impairment. He noted that, based upon the range of motion
grade modifiers in Table 15-35 and Table 15-36,5 appellant had 19 percent impairment or an
additional 1 percent impairment.
The date of maximum medical improvement was
July 25, 2012.

3

A.M.A., Guides 475.

4

Id. at 477.

5

Id.

3

By decision dated August 16, 2012, OWCP granted a schedule award for an additional
one percent impairment to the left arm. The period of the award was from January 26 to
February 16, 2012.6

6

OWCP noted that appellant had previously received an award for 18 percent of the left arm from December 28,
2010 to January 25, 2012.

4

LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing federal regulations8 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
the A.M.A., Guides as the uniform standard applicable to all claimants.9 For decisions issued
after May 1, 2009, the sixth edition will be used.10
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.11
Table 15-5 provides an impairment rating for diagnosis-based evaluation. It also
provides that, if motion loss is present for a claimant who has undergone a shoulder arthroplasty,
impairment may alternatively be assessed using section 15.7 (range of motion impairment).
Such a range of motion impairment stands alone and is not combined with a diagnosis-based
impairment.12 The range of motion method involves the taking of active and passive range of
motion findings and then comparing of the two types of motion in order to evaluate credibility
issues. Range of motion is measured after a warm up in which the individual moves the joint
through its maximum range of motion at least three times.13
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that appellant sustained left rotator cuff syndrome and cervical
radiculopathy. Appellant underwent left shoulder surgery on May 13, 2008. On remand, OWCP
referred him for a second opinion examination with Dr. Somers who rated 19 percent left arm
impairment. Its medical adviser concurred with this and relied upon the clinical findings
contained in Dr. Somers’ July 27, 2012 report.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

FECA Bulletin No. 09-03 (issued March 15, 2009).

11

Veronica Williams, 56 ECAB 367, 370 (2005).

12

See A.M.A., Guides 405, 475-78.

13

See id. at 461-64.

5

The Board notes that Dr. Somers, in his July 27, 2012 report, concluded that appellant
had a 19 percent upper extremity permanent impairment according to the A.M.A., Guides, but
the record does not establish that he measured range of motion three times after a warm up and
then utilized the average of the measurements as required by section 15.7 of the A.M.A.,
Guides.14 The Board notes that the procedures are designed to ensure the credibility of range of
motion testing. The Board notes that Dr. Dyer’s report is based upon that of Dr. Somers. As the
physicians did not follow the appropriate procedure with regard to measuring range of motion,
the case is not in posture.15
It is well established that proceedings under FECA are not adversarial in nature and,
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.16 Accordingly, once OWCP undertakes
development of the medical evidence, it has the responsibility to do so in a proper manner.17 The
reports from Dr. Somers and OWCP’s medical adviser are insufficient to resolve the issue of
whether appellant was entitled to an additional schedule award; OWCP did not properly
discharge its responsibilities in developing the record.18 The Board, therefore, finds that the case
must be remanded for further development of the medical evidence and a reasoned opinion
regarding whether appellant has additional permanent impairment of the upper extremities due to
his accepted employment injuries. Following such further development as deemed necessary,
OWCP shall issue a de novo decision.
On appeal, appellant made arguments related to his other accepted injuries. However, in
light of the Board’s finding, it is premature to address these arguments.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

Id.

15

See supra note 14.

16

Richard E. Simpson, 55 ECAB 490 (2004).

17

Melvin James, 55 ECAB 406 (2004).

18

Richard F. Williams, 55 ECAB 343 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the August 16, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and remanded.
Issued: April 19, 2012
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alexandria, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1755
Issued: June 12, 2008

Case Submitted on the Record

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

JURISDICTION
On June 20, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 14, 2007 merit decision concerning the termination of her
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
October 29, 2005 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
In late 1987 the Office accepted that appellant, then a 40-year-old distribution clerk,
sustained bilateral shoulder tendinitis secondary to impingement syndrome and bilateral rotator
cuff tears due to her repetitive job duties. Appellant underwent a left rotator cuff repair on
January 29, 1988 and a right rotator cuff repair on July 18, 1997. Both procedures were
authorized by the Office. Appellant retired from the employing establishment effective

June 1989 and worked in private employment for more than 10 years. The Office received a new
claim from appellant for wage loss in late 2003. After developing the medical evidence
establishing employment-related disability, it paid compensation for continued wage loss.
On June 18, 2004 Dr. Christopher K. Hull, an attending Board-certified orthopedic
surgeon, performed a left rotator cuff repair with subacromial decompression. On December 15,
2004 he indicated that appellant could not tolerate any work duties that required raising her arms
above her waist.
On May 25, 2005 Dr. Hull indicated that appellant had reached maximum medical
improvement by May 4, 2005 with respect to her upper extremity conditions. He stated that
appellant could work eight hours per day with restrictions including lifting up to 20 pounds,
performing normal hand functions up to three hours per day, sitting up to four hours, standing up
to two hours, walking up to two hours, and performing repetitive activities for up to one hour.
Dr. Hull indicated that appellant could not work in cold weather and stated that she could not
squat, bend, kneel, twist, climb or reach above her shoulder.
On August 25, 2005 the employing establishment offered appellant a modified full-time
job as a mail processing clerk in Alexandria, LA. The position involved such duties as sorting
mail weighing no more than 20 pounds for up to one hour per day, keying mail for two to four
hours per day and answering telephones and stamping mail for two to four hours per day. The
job did not require appellant to lift more than 20 pounds, perform normal hand functions more
than three hours per day, sit more than four hours, stand more than two hours, walk more than
two hours, or perform intermittent repetitive activities more than one hour. The position
description specifically prohibited appellant from reaching above her shoulders.
On August 29, 2005 appellant indicated that she was not accepting or rejecting the
offered position. She stated that she had been on disability retirement since 1989. Appellant
noted that she lived in Arlington, TX, and did not wish to move back to Alexandria, LA.
In a September 9, 2005 letter, the Office advised appellant of its determination that the
mail processing clerk position offered by the employing establishment was suitable. It advised
appellant that her compensation would be terminated if she did not accept the position or provide
good cause for not doing so within 30 days from the date of the letter. In an October 11, 2005
letter, an employing establishment official stated that the employing establishment attempted to
look for work in appellant’s current area of residence in Texas, but was unable to find
appropriate work.
In an October 25, 2005 letter, the Office advised appellant that she had not shown good
cause for not accepting the mail processing clerk position. It advised appellant that her
compensation would be terminated if she did not accept the position within 15 days from the date
of the letter. Appellant submitted a November 2, 2005 report in which Dr. Hull discussed the
performance of a functional capacity assessment.
In a November 10, 2005 decision, the Office terminated appellant’s compensation
effective October 29, 2005 on the grounds that she refused an offer of suitable work. It indicated
that appellant had not shown good cause for not accepting the suitable work offered to her.

2

Appellant requested a hearing before an Office hearing representative. She submitted
statements in which she argued that Dr. Hull felt she was not ready to return to work. Appellant
repeated her claims that her residence in Texas prevented her from accepting the position. At the
January 25, 2007 hearing, she provided similar arguments. Appellant also submitted medical
reports detailing her medical treatment between March 2006 and January 2007. In a March 14,
2007 decision, the Office hearing representative affirmed the November 10, 2005 decision.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”1 However, to justify such termination, the Office
must show that the work offered was suitable.2 An employee who refuses or neglects to work
after suitable work has been offered to her has the burden of showing that such refusal to work
was justified.3 If possible, the employer should offer suitable reemployment in the location
where the employee currently resides. If this is not practical, the employer may offer suitable
reemployment at the employee’s former duty station or other location.4
ANALYSIS
The Office accepted that appellant sustained bilateral shoulder tendinitis secondary to
impingement syndrome and bilateral rotator cuff tears due to her repetitive job duties and paid
her compensation for periods of disability. It terminated appellant’s compensation effective
October 29, 2005 on the grounds that she refused an offer of suitable work.
The evidence of record shows that appellant was capable of performing the mail
processing clerk position offered by the employing establishment in August 2005 and determined
to be suitable by the Office in September 2005. The position involved such duties as sorting
mail weighing no more than 20 pounds, keying mail, answering telephones and stamping mail.
The job did not require appellant to lift more than 20 pounds, perform normal hand functions
more than three hours per day, sit more than four hours, stand more than two hours, walk more
than two hours or perform intermittent repetitive activities more than one hour. The position
description specifically prohibited appellant from reaching above her shoulders. The record does
not reveal that the position was temporary or seasonal in nature.5

1

5 U.S.C. § 8106(c)(2).

2

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

3

20 C.F.R. § 10.124; See Catherine G. Hammond, 41 ECAB 375, 385 (1990).

4

20 C.F.R. § 10.508.

5

See Federal (FECA) Procedure Manual, Part 2 -- Claim, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4b (July 1997).

3

In determining that appellant was physically capable of performing the mail processing
clerk position, the Office properly relied on the May 25, 2005 opinion of Dr. Hull, an attending
Board-certified orthopedic surgeon. On May 25, 2005 Dr. Hull indicated that appellant had
reached maximum medical improvement by May 4, 2005 with respect to her upper extremity
conditions. The work restrictions provided by Dr. Hull would allow her to perform the duties of
the offered position. Dr. Hull indicated that appellant could not work in cold weather and stated
that she could not squat, bend, kneel, twist or climb, but there is no indication that the mail
processing clerk position would require such duties.6 The Board finds that the mail processing
clerk position offered by the employing establishment is suitable. As noted, once the Office has
established that a particular position is suitable, an employee who refuses or neglects to work
after suitable work has been offered to her has the burden of showing that such refusal to work
was justified. The Board has carefully reviewed the evidence and argument submitted by
appellant in support of her refusal of the offered position and notes that it is not sufficient to
justify her refusal of the position. Appellant submitted a November 2, 2005 report in which
Dr. Hull discussed the performance of a functional capacity assessment, but this report does not
provide an opinion that appellant could not perform the mail processing clerk position when it
was offered in August 2005. She also submitted medical reports detailing her medical treatment
between March 2006 and January 2007, but these reports also do not provide an opinion
regarding her ability to work when the position was offered.
For these reasons, the Office properly terminated appellant’s compensation effective
October 29, 2005 on the grounds that she refused an offer of suitable work.7
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
October 29, 2005 on the grounds that she refused an offer of suitable work.

6

Appellant argued that the offered position was not suitable because she lived in Arlington, TX and should have
been offered a position in her former duty station, Alexandria, LA. However, the employing establishment satisfied
the requirements of 20 C.F.R. § 10.508 because it made an attempt to find work in appellant’s area of residence,
although ultimately that attempt proved unsuccessful. See supra note 4 and accompanying text.
7

The Board notes that the Office complied with its procedural requirements prior to terminating appellant’s
compensation, including providing appellant with an opportunity to accept the offered position after informing her
that she had not given a valid reason for not accepting the position; see generally Maggie L. Moore, 42 ECAB 484
(1991); reaff’d on recon., 43 ECAB 818 (1992).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 14, 2007 decision is affirmed.
Issued: June 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5