United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, JOSHUA TREE
NATIONAL PARK, Chiraico Summit, CA,
Employer
__________________________________________

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

Docket No. 21-0296
Issued: December 1, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 23, 2020 appellant, through counsel, filed a timely appeal from a
September 29, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $25,106.43 for which he was without fault, because
he concurrently received FECA wage-loss compensation and Social Security Administration
(SSA) age-related retirement benefits for the period November 6, 2014 through March 28, 2020,
without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$200.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On June 17, 2013 appellant, then a 63-year-old maintenance worker, filed a traumatic
injury claim (Form CA-1) alleging that on June 13, 2013 he lost his footing when removing a
sewer manhole cover and injured his right shoulder and upper arm while in the performance of
duty. Appellant’s supervisor noted on the claim form that his retirement coverage was under the
Federal Employees Retirement System (FERS).
OWCP accepted the claim for contusion of right scapular region, right shoulder sprain, and
right rotator cuff sprain. It paid appellant wage-loss compensation on the supplemental rolls from
November 6, 2014 through May 30, 2015, and on the periodic rolls as of May 31, 2015. Effective
March 4, 2018, OWCP paid him wage-loss compensation benefits pursuant to a loss of wageearning capacity determination dated February 28, 2018, based on the constructed position of
merchant patroller.
On March 15, 2019 and January 29, 2020 OWCP forwarded SSA a FERS/SSA dual
benefits calculation form.
OWCP received a completed FERS/SSA dual benefits calculation form from SSA dated
February 19, 2020. SSA advised that effective November 2014 appellant received SSA agerelated retirement benefits. It listed his SSA age-related retirement benefit rates with a FERS offset
and without a FERS offset from November 2014 through December 2019. Beginning
November 2014, the SSA rate with FERS was $1,497.90 and without FERS was $1,136.60.
Beginning December 2014, the SSA rate with FERS was $1,523.90 and without FERS was
$1,155.90. Beginning December 2016, the SSA rate with FERS was $1,540.00 and without FERS
was $1,159.30. Beginning December 2017, the SSA rate with FERS was $1,571.00 and without
FERS was $1,182.40. Beginning December 2018, the SSA rate with FERS was $1,615.50 and
2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the September 29, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

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without FERS was $1,215.40. Beginning December 2019, the SSA rate with FERS was $1,640.60
and without FERS was $1,234.80.
On April 3, 2020 OWCP prepared an overpayment calculation worksheet wherein it noted
the calculation of appellant’s SSA offset overpayment from November 6, 2014 through March 28,
2020 and computed a total overpayment amount of $25,106.43. This form indicated that: from
November 6 through 30, 2014 appellant received an overpayment in the amount of $297.77; from
December 1 through 31, 2014 appellant received an overpayment in the amount of $376.09; from
January 1 through November 30, 2015 appellant received an overpayment in the amount of
$4,184.18; from December 1, 2015 through November 30, 2016 appellant received an
overpayment in the amount of $4,585.05; from December 1, 2016 through November 30, 2017
appellant received an overpayment in the amount of $4,580.95; from Decemb er 1, 2017 through
November 30, 2018 appellant received an overpayment in the amount of $4,676.01; f rom
December 1, 2018 through November 30, 2019 appellant received an overpayment in the amount
of $4,814.39; and from December 1, 2019 through March 28, 2020 appellant received an
overpayment in the amount of $1,591.98.
On April 6, 2020 OWCP issued a preliminary overpayment determination, finding that an
overpayment of compensation in the amount of $25,106.43 had been created because appellant
concurrently received SSA age-related retirement benefits from November 1, 2014 through
March 28, 2020 and FECA wage-loss compensation without appropriate offset. It determined that
he was without fault in the creation of the overpayment. OWCP requested that appellant submit a
completed overpayment recovery questionnaire (Form OWCP-20) to determine a reasonable
payment method, and advised him that he could request waiver of recovery of the overpayment.
It further requested that he provide supporting financial documentation, including copies of income
tax returns, bank account statements, bills and canceled checks, pay slips, and any other records to
support income and expenses. Additionally, OWCP further provided an overpayment action
request form and notified appellant that, within 30 days of the date of the letter, he could request
a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
In an April 15, 2020 letter, OWCP informed appellant that it had determined that he was
in receipt of FERS/SSA dual benefits. Thus, appellant’s FECA wage-loss compensation would be
adjusted based on the FERS portion of SSA benefits that are attributable to federal service, and his
new net FECA benefit after the SSA offset would be $825.12 every 28 days.
On April 15, 2020 appellant requested a prerecoupment hearing regarding possible waiver
of recovery of the overpayment before a representative of OWCP’s Branch of Hearings and
Review. He noted that he only collected workers’ compensation benefits and Social Security and
had relied on counsel’s advice that it was proper and legal. Appellant further advised that he was
underpaid as his compensation had been reduced to almost half. On the Form OWCP-20
completed on April 26, 2020, he reported that his total monthly income was $2,321.12, and his
monthly expenses totaled $2,259.00. Appellant further noted cash on hand of $200.00 and a
checking account balance of $50.00. No financial documentation was submitted.
On May 28, 2020 an OWCP hearing representative conducted a preliminary review and
found the case not in posture for the hearing. The hearing representative set aside OWCP’s April 6,

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2020 preliminary overpayment determination, finding that clarification regarding the overpayment
start date and an explanation of how the total overpayment was calculated was necessary.
On June 2, 2020 OWCP issued a new preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $25,106.43 had been created because appellant
received SSA age-related retirement benefits from November 6, 2014 through March 28, 2020 as
part of an annuity under FERS concurrently with FECA wage-loss compensation without
appropriate offset. It explained that the overpayment commenced on November 6, 2014, the date
his FECA benefits began. OWCP also provided a detailed computation of how the overpayment
was created. It determined that appellant was without fault in the creation of the overpayment.
OWCP requested that he submit a completed Form OWCP-20 to determine a reasonable
repayment method, and advised him that he could request waiver of recovery of the overpayment.
It further requested that appellant provide supporting financial documentation, including copies of
income tax returns, bank account statements, bills and canceled checks, pay slips, and any other
records, which support income and expenses. Additionally, OWCP further provided an
overpayment action request form and notified appellant that, within 30 days of the date of the
letter, he could request a telephone conference, a final decision based on the written evidenc e, or
a prerecoupment hearing.
On June 12, 2020 appellant requested a prerecoupment hearing regarding possible waiver
of recovery of the overpayment before an OWCP hearing representative.
In a July 9, 2020 letter, OWCP’s hearing representative requested that appellant complete
a Form OWCP-20 and provide supporting financial documentation so that she could consider the
question of waiver or determine a reasonable rate of recovery of the overpayment.
On August 26, 2020 OWCP received a completed Form OWCP-20 dated an
August 25, 2020. Appellant reported that his total monthly income was $2,321.12, which included
$1,496.00 from SSA and FECA wage-loss compensation benefits of $825.12. He indicated total
monthly expenses of $1,974.70 and also noted that his expenses included partial financial support
for his girlfriend. Appellant indicated that he had $100.00 cash on hand with a negative checking
account balance. He also indicated that there was no change in his circumstances, which affected
his monthly payment. Appellant attached financial information including credit card bills, utility
bills for his address, car loan and auto insurance bills, and bank statements.
In an August 25, 2020 affidavit included with appellant’s completed Form OWCP-20,
appellant’s girlfriend clarified that she was actually his fiancée and that he paid for her groceries
and electricity. Two electric bills addressed in her name at an address separate from appellant’s
noted charges of $221.66 for July 2020 and $232.48 for June 2020.
A telephonic hearing was held on August 26, 2020.
By decision dated September 29, 2020, the hearing representative finalized the preliminary
overpayment determination, finding that appellant had received an overpayment of compensation
in the amount of $25,106.43 for the period November 6, 2014 through March 28, 2020, because it
failed to offset his FECA wage-loss compensation payments by the portion of his SSA age-related
retirement benefits that were attributable to his federal service. She further found that he was

4

without fault in the creation of the overpayment, but denied waiver of recovery of the overpayment
because the evidence of record failed to establish that recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The hearing representative
required recovery of the overpayment by deducting $200.00 from appellant’s continuing
compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment. 4 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States. 5 When an overpayment of compensation 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. 6
Section 10.421(d) of FECA implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-based benefits that are attributable to federal
service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $25,106.43 for which he was without fault, because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period November 6, 2014 through March 28, 2020, without an appropriate offset.
The record supports that appellant received FECA wage-loss compensation benefits while
also receiving SSA age-related retirement benefits beginning November 6, 2014. The information
provided by SSA established that appellant had received SSA age-related retirement benefits that
were attributable to his federal service commencing November 6, 2014. Thus, the record
establishes fact of overpayment.9

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-09 (February 3, 1997).

9

M.R., Docket No. 20-1622 (issued June 30, 2021).

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To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to appellant’s SSA age-related retirement benefit rates that
were attributable to federal service, commencing November 6, 2014. SSA provided its age-related
retirement benefit rates with FERS and without FERS for specific periods November 6, 2014
through March 28, 2020. OWCP provided its overpayment calculations for each relevant period
based on SSA’s worksheet and determined that he received a total overpayment in the amount of
$25,106.43. The Board, thus, finds that appellant received prohibited dual benefits for the period
November 6, 2014 through March 28, 2020 totaling $25,106.43.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”10
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 11 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00. 12 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent. 13 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits. 14
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that

10

5 U.S.C. § 8129(b).

11

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2020). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).
12

Id. at Chapter 6.400.4(a)(3); C.B., Docket No. 20-0031 (issued July 27, 2020); N.J., Docket No. 19-1170 (issued
January 10, 2020).
13

Id. at Chapter 6.400.4(a)(2) (September 2020).

14

Id. at Chapter 6.400.4(b)(3).

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such payments would be made, gives up a valuable right or changes his or her position for the
worse.15
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 17
As noted, section 10.436 provides that recovery of an overpayment would defeat the
purpose of FECA if recovery would cause hardship because the beneficiary (appellant) needs
substantially all of his or her income (including compensation benefits) to mee t current ordinary
and necessary living expenses, and that assets do not exceed the resource base. 18 The evidence of
record shows that appellant had monthly income totaling $2,321.12. Appellant reported total
monthly expenses of $1,974.70, which included expenses for his fiancée’s food ($600.00) and
electricity ($377.14). Under section 8110 of FECA, a fiancée does not qualify as a dependent.19
Thus, her expenses may not be included in appellant’s ordinary and necessary living expenses.
Based on appellant’s determination of monthly income and monthly expenses provided on the
Form OWCP-20, his monthly income of $2,321.12 exceeded his monthly expenses of $1,974.70
by $346.42, which is more than the statutory amount of $50.00. Thus, appellant has not established
that recovery of the overpayment would defeat the purpose of FECA.
The Board further finds that appellant has not established that recovery of the overpayment
would be against equity and good conscience because it has not been shown, for the reasons noted
above, that he would experience severe financial hardship in attempting to repay the debt, or that
a valuable right had been relinquished, or that a position had been changed for the worse in reliance
on the payment, which created the overpayment.

15

20 C.F.R. § 10.437(a)(b).

16

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

17

5 U.S.C. § 8129.

18

See supra note 16.

19

See 5 U.S.C. § 8110.

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Because it has not been established that, recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP has not
abused its discretion by denying waiver of recovery of the overpayment.20
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. 21
Section 10.441(a) of OWCP’s regulations22 provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”23
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$200.00 from appellant’s continuing compensation payments every 28 days.
In determining that appellant could repay the overpayment through $200.00 deductions
from continuing compensation payments, OWCP took into account his financial information, as
well as factors set forth in 20 C.F.R. § 10.441 and found that this method of recovery would
minimize any resulting hardship, not necessarily eliminate it, while at the same time liquidating
the debt in a reasonably prompt fashion.24 The Board, therefore, finds that OWCP properly
required recovery of the overpayment by deducting $ 200.00 every 28 days from appellant’s
continuing compensation payments.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $25,106.43 for which he was without fault, because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period November 6, 2014 through March 28, 2020, without an appropriate offset, and that
OWCP properly denied waiver of recovery of the overpayment. OWCP also prop erly required
20

See M.R., supra note 10.

21

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

22

Id. at § 10.441(a).

23

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

24

See M.R., supra note 10.

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recovery of the overpayment by deducting $200.00 from appellant’s continuing compensation
payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the September 29, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gastonia, NC, Employer
__________________________________________

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

Docket No. 20-0442
Issued: January 26, 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 December 18, 2019 appellant filed a timely appeal from a December 4, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$1,600.24 overpayment of compensation for the period March 16 through April 27, 2019 because
he continued to receive wage-loss compensation following his return to full-duty work; and
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 4, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

(2) whether OWCP properly found that appellant was at fault in the creation of the overpayment,
thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference.3 The relevant facts
are as follows.
On September 28, 2014 appellant, then a 48-year-old supervisor/letter carrier, filed a
traumatic injury claim (Form CA-1) alleging that on September 27, 2014 he sustained lower back
and bilateral leg, knee, and foot injuries when a coworker drove off in a vehicle while appellant
was attempting to open the back door and enter the vehicle while in the performance of duty.4 He
stopped work on the date of injury and returned to work on December 26, 2014.
On January 14, 2015 OWCP accepted the claim for lumbar and neck sprains. The
acceptance letter informed appellant that wage-loss compensation for total disability was available
only if he was unable to perform the duties of his regular position and that he should notify OWCP
if he returned to work, or obtained new employment. Appellant was also advised that, if he worked
during a period in which he received compensation, he should notify OWCP in order that the
overpayment could be collected.
Appellant stopped work again on February 6, 2015, but returned to light-duty part-time
work on July 5, 2016. In an October 3, 2016 Shadrick documentation memorandum, OWCP
adjusted appellant’s compensation based on actual earnings and paid him wage-loss compensation
for four hours per day on the periodic rolls. On April 7, 2018 appellant began working six hours
per day.
In a report dated March 11, 2019, Dr. Ian D. Archibald, a Board-certified orthopedic
surgeon, advised that appellant was capable of working eight hours per day.
In a report of work status (Form CA-3) dated April 11, 2019, the employing establishment
informed OWCP that appellant had returned to full-time, regular-duty work on March 16, 2019.
In a letter dated April 24, 2019, OWCP indicated that appellant had returned to work on
March 16, 2019. It noted that for the period March 16 through 30, 2019 he had been overpaid
compensation in the amount of $558.21 and from March 31 through April 27, 2019 he had been
overpaid compensation in the amount of $1,042.00. OWCP noted that it had issued appellant a
check dated March 30, 2019 covering wage-loss compensation for the period March 16

3

Docket No. 19-1788 (issued March 17, 2020).

4

OWCP assigned the present claim OWCP File No. xxxxxx326. Appellant has a prior claim for a November 30,
2005 employment injury. OWCP assigned that claim OWCP File No. xxxxxx269 and accepted it for left upper and
lower extremity conditions, neck and thoracic sprains, and a concussion. On January 18, 2018 it administratively
combined the present claim with OWCP File No. xxxxxx269, with the latter serving as the master file.

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through 30, 2019 and a check dated April 27, 2019 covering wage-loss compensation for the
period March 31 to April 27, 2019. It calculated that the overpayment totaled $1,600.21.
On May 6, 2019 OWCP advised appellant of its preliminary determination that he had
received an overpayment of compensation in the amount of $1,600.21 for the period March 16
through April 27, 2019 because he returned to full-duty work on March 16, 2019, but received
wage-loss compensation for partial disability. It found that he was at fault in the creation of the
overpayment because he had accepted a payment that he knew or reasonably should have known
was incorrect. OWCP informed appellant that he had the right to submit evidence or argument if
he disagreed with its finding. It also informed him that he had a right to a prerecoupment hearing
before an OWCP hearing representative. OWCP requested that appellant complete an enclosed
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation.
On an overpayment action request form dated May 13, 2019, appellant requested a
prerecoupment hearing before OWCP’s Branch of Hearings and Review. He asserted that he had
not been overpaid and that the checks he had received were for money OWCP owed him.
Appellant listed $3,250.00 in monthly income and $1,800.00 in other monthly benefits, which
totaled $5,050.00 in monthly income. Monthly expenses included $350.00 in rent or mortgage,
$650.00 for food, $150.00 for clothing, $1,000.00 for utilities, and $300.00 in other expenses,
which resulted in total monthly expenses of $2,450.00. Other expenses included monthly debt
payments of $333.00 for his life insurance, $150.00 for his daughter’s life insurance, $27.00 for
cancer insurance, $39.00 for disability insurance. Appellant listed assets of $105,000.00 in a
checking account, $60,000.00 in a savings account, $340,000.00 in stocks and bonds, and
$255,000.00 for value of other personal property and other funds, which resulted in total assets of
$760,000.00. No supporting financial documentation accompanied his request for waiver.
Following a hearing, held on September 20, 2019, by decision dated December 4, 2019,
OWCP’s hearing representative finalized its preliminary determination that an overpayment of
compensation in the amount of $1,600.24 for the period March 16 through April 27, 2019 as he
continued to receive wage-loss compensation following his return to full-duty work. She
determined that appellant was at fault in the creation of the overpayment because he accepted
compensation payments he knew or should have known were incorrect. OWCP’s hearing
representative found that appellant should forward $1,600.24 within 30 days to repay the
overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section of FECA provides that, while an employee is receiving compensation, he or she may
not receive salary, pay, or remuneration of any type from the United States, except in limited
5

Supra note 1 at § 8102(a).

3

circumstances.6 OWCP’s procedures provide that an overpayment in compensation is created
when a claimant returns to work, but continues to receive wage-loss compensation.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $1,600.21 for the period March 16 through April 27, 2019.
The record establishes that appellant returned to work full time at the employing
establishment on March 16, 2019. Appellant received wage-loss compensation for partial
disability from March 16 through April 27, 2019. As noted above, he is not entitled to receive
compensation for partial disability after he has returned to full-duty work.8 Thus, an overpayment
of compensation was created.
The Board notes that OWCP’s hearing representative in the December 4, 2019 decision
incorrectly noted that the overpayment amount was $1,600.24, instead of $1,600.21. The Board
finds that this is a typographic error. OWCP properly calculated in its April 24, 2019 letter and
May 6, 2019 preliminary overpayment determination that appellant’s net compensation paid for
the period March 16 through April 27, 2019 totaled $1,600.21.
Thus, the Board finds that he received an overpayment of compensation in the modified
amount of $1,600.21 for the period March 16 through April 27, 2019.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides as follows that adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.9 No waiver of an overpayment is possible if the claimant is
at fault in creating the overpayment.10
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid

6

Id. at § 8116(a).

7
C.A., Docket No. 18-0092 (issued April 2, 2018); Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Action, Chapter 6.200.2(a) (May 2004).
8

L.T., Docket No. 19-1389 (issued March 27, 2020).

9

Supra note 1 at § 8129(b).

10

See J.S., Docket No. 19-1363 (issued April 10, 2020); Gregg B. Manston, 45 ECAB 344 (1994).

4

individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.11
With respect to whether an individual is without fault, section 10.433(b) of OWCP
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.12
OWCP’s regulations advise that OWCP includes on each periodic check a clear indication
of the period for which payment is being made. A form is sent to the recipient with each
supplemental check which states the period for which payment is being made.13 Section 10.430(b)
notes that, by these means, OWCP puts the recipient on notice that a payment was made and the
amount of the payment.14
ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in the creation of the overpayment because he
accepted a payment which he knew or should have known to be incorrect.
In the January 14, 2015 acceptance letter, OWCP advised appellant that he was to
immediately inform it upon his return to work to avoid an overpayment of compensation and that,
if he worked during any period covered by a compensation payment, he had to return the payment
to OWCP. Thus, appellant should have known that he could not receive wage-loss compensation
after his return to work.15
The record contains evidence that appellant received a check dated March 30, 2019
covering wage-loss compensation for the period March 3 to 30, 2019 and a check dated April 27,
2019 covering wage-loss compensation for the period March 31 to April 27, 2019. Appellant did
not return the compensation checks he received.
Therefore the Board concludes that appellant was at fault in the creation of the overpayment
as he should have known that, at the time he returned to work on March 16, 2019, he was not
entitled to continue to receive compensation and had an obligation to return payments he knew or

11

20 C.F.R. § 10.433(a).

12

Id. at § 10.433(b).

13

Id. at § 10.430(a).

14

Id. at § 10.430(b).

15

Id.

5

should have known were incorrect.16 As he was at fault in the creation of the overpayment,
appellant is precluded from waiver of recovery of the overpayment of compensation.17
On appeal appellant asserts that he should not be found at fault in the creation of the
overpayment as it was the employing establishment’s error. As explained above, the record
establishes that he should have known that the payment he received was incorrect. Appellant was,
therefore, at fault in the creation of the overpayment.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$1,600.21 for the period March 16 through April 27, 2019 because he continued to receive wageloss compensation following his return to full-duty work. The Board further finds that he was at
fault in the creation of the overpayment, thereby precluding waiver of recovery of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the December 4, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: January 26, 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
16

Supra note 11. See also J.H., Docket No. 17-0592 (issued May 1, 2018); William F. Salmonson, 54 ECAB
152 (2002).
17

Supra note 10.

6


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

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

Docket No. 20-1303
Issued: June 28, 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 June 17, 2020 appellant filed a timely appeal from a March 24, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, OWCP received additional evidence following the March 24, 2020 decision. 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than seven
percent permanent impairment of the left lower extremity, for which he previously received
schedule award compensation.
FACTUAL HISTORY
On April 13, 2016 appellant, then a 45-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on April 12, 2016 he injured his left knee when he jumped
over a fence evading a pit bull dog as he was being chased in the performance of duty. OWCP
accepted that he sustained a nondisplaced transverse fracture of shaft of left tibia, closed fracture
and paid compensation.
In a September 20, 2016 report, Dr. Mufaddal Gombera, a Board-certified orthopedic
surgeon, utilized the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides)3 to rate appellant’s permanent impairment. He
indicated that appellant had normal left knee range of motion (ROM). Dr. Gombera referred to
Table 16-3, on page 510-11 of the A.M.A., Guides and explained that appellant had a default rating
of five percent for a class of diagnosis (CDX) of 1 for the diagnosis of fracture, a grade modifier
for functional history (GMFH) of 1 based on altered gait, a grade modifier for physical examination
(GMPE) of 2 for tenderness to palpation, atrophy, edema and loss of strength, and grade modifier
for clinical studies (GMCS) of 1, as they confirmed the diagnosis. He utilized the net adjustment
formula and found a left lower extremity permanent impairment of six percent.
On November 30, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a January 8, 2017 report, Dr. Jovito Estaris, Board-certified in occupational medicine
and serving as a district medical adviser (DMA), reviewed a statement of accepted facts (SOAF)
and the medical record, including Dr. Gombera’s report. He diagnosed nondisplaced fracture of
shaft of left tibia, initial encounter for closed fracture. The DMA noted that appellant had a normal
gait, full ROM, a stable knee, and a healed fracture in good alignment. He referred to Table 16-3,
on page 510 of the A.M.A., Guides, for a fracture of the Tibial Plateau of the left knee, and found
that it warranted a CDX 1, with a default value of 5, nondisplaced with abnormal examination
findings. The DMA applied a GMFH of 0 due to no antalgic gait, pursuant to Table 16-6.4 He
found a GMPE of 1.5 The DMA noted that the GMCS was not used as the computerized
tomography scan showed tibial plateau fracture (nondisplaced) and was used for classification of
the diagnosis in the diagnosis-based impairment (DBI) grid. He utilized the net adjustment
formula and found that appellant had four percent left lower extremity impairment. The DMA
explained that his rating differed from that of Dr. Gombera due to non-key modifiers assignment.
He noted that Dr. Gombera assigned a grade modifier of 1 for GMFH due to an altered gait,
3

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

4

A.M.A., Guides 516.

5

Id. at 517.

2

however, he found that appellant had a normal gait therefore the grade modifier was 0. The DMA
explained that Dr. Gombera assigned a GMPE of 2, but the only positive finding was tenderness
over the anterior knee and the knee was stable therefore the grade modifier was 1, as objective
findings took precedence over subjective findings.
On March 6, 2017 OWCP granted appellant a schedule award for four percent permanent
impairment of the left lower extremity. The award covered a period of 11.52 weeks from
September 20 to December 9, 2016.
On June 21, 2018 appellant underwent a left knee arthroscopy with partial medial
menisectomy.
On October 17, 2018 appellant filed a claim for an additional schedule award (Form CA-7).
By development letter dated November 13, 2018, OWCP requested that appellant submit
a report from his attending physician, which addressed whether he had reached maximum medical
improvement (MMI) and, if so, to evaluate permanent impairment in accordance with the standards
of the A.M.A., Guides. It afforded him 30 days to submit the requested information.
In a January 8, 2019 report, Dr. Charles Kennedy, Jr., a Board-certified orthopedic
surgeon, utilized the A.M.A., Guides, examined appellant, and provided findings. He advised that,
using the DBI method, appellant had undergone medial meniscectomy, for which the CDX default
rating was two percent impairment, and that a tibial plateau fracture undisplaced with abnormal
findings warranted five percent rating for permanent impairment of the lower extremity.
Dr. Kennedy also utilized the ROM method for rating the left knee permanent impairment. He
found that ROM was between 80 and 109 degrees, and warranted 10 percent impairment according
to Table 16-23.6 Dr. Kennedy explained that, because the ROM method rating was higher, it would
be utilized. He opined that appellant reached MMI on January 8, 2019.
On June 20, 2019 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, serving as a
district medical adviser (DMA), reviewed a SOAF and the medical record. He diagnosed status
post left knee arthroscopic partial medial menisectomy and a left lateral tibial plateau fracture.
The DMA utilized the DBI method and referred to Table 16-3.7 He opined that appellant had
seven percent left lower extremity impairment for lateral tibial plateau fracture and arthroscopic
partial medial menisectomy. Regarding the ROM method, the DMA explained that the A.M.A.,
Guides were to be utilized as a stand-alone rating when there were no diagnosis that was applicable
or in very rare cases where a severe injury resulted in a passive ROM loss, qualifying for a class 3
or 4 impairment or for amputation ratings according to section 16.7 on page 543. He advised that
appellant’s diagnosed conditions did not meet any of the criteria discussed in section 16.7, page
543, to allow for impairment to be calculated under the ROM method and that the DBI method
provided the appropriate impairment rating. The DMA opined that appellant had no more than
seven percent left lower extremity impairment under the DBI method.

6

Id. at 549.

7

Id. at 510.

3

On March 24, 2020 OWCP granted appellant an additional schedule award for three
percent permanent impairment of the left lower extremity. The award covered a period of 8.64
weeks from January 8 to March 9, 2019. It explained that appellant had previously received an
award of four percent to the left lower extremity and that Dr. Harris, the DMA, found that
appellant’s left lower extremity impairment was seven percent, which represented an increase of
three percent.
LEGAL PRECEDENT
The schedule award provisions of FECA,8 and its implementing federal regulations,9 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. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 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
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).12 Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower
extremities, provides that diagnosis-based impairment is the primary method of calculation for the
lower limb and that most impairments are based on the diagnosis-based impairment where
impairment class is determined by the diagnosis and specific criteria as adjusted by the grade
modifiers for functional history, physical examination, and clinical studies. It further provides that
alternative approaches are also provided for calculating impairment for peripheral nerve deficits,
complex regional pain syndrome, amputation, and ROM. ROM is primarily used as a physical
examination adjustment factor.13 The A.M.A., Guides, however, also explain that some of the
diagnosis-based grids refer to the ROM section when that is the most appropriate mechanism for
grading the impairment. This section is to be used as a stand-alone rating when other grids refer
8

Supra note 1.

9

20 C.F.R. § 10.404.

10

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Chapter 3.700, Exhibit 1 (January 2010).
11

See A.C., Docket No. 19-1333 (issued January 8, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
12

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
13

Id. at 497, section 16.2.

4

to this section or no other diagnosis-based sections of the chapter are applicable for impairment
rating of a condition.14
Under the sixth edition, the evaluator identifies the impairment CDX, which is then
adjusted by GMFH, GMPE, and GMCS.15 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).16 Evaluators are directed to provide reasons for their
impairment choices, including the choices of diagnoses from regional grids and calculations of
modifier scores.17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the percentage of permanent impairment
using the A.M.A., Guides.18
ANALYSIS
The Board finds that the case is not in posture for decision.
In support of his claim, appellant submitted a January 8, 2019 report from Dr. Kennedy.
Dr. Kennedy first utilized the DBI method and found that appellant had undergone a medial
meniscectomy for which the default rating was two percent impairment, and that he had a tibial
plateau fracture undisplaced with abnormal findings, which had a default rating of five percent
permanent impairment, for a total of seven percent lower extremity impairment under the DBI
method. He also utilized the ROM method for the knee, referred to Table 16-23, and opined that
appellant had 10 percent permanent impairment. Dr. Kennedy indicated that, because the ROM
rating was higher, it should be utilized.
OWCP properly routed the medical evidence to the DMA, Dr. Harris. On June 20, 2019
the DMA explained that the ROM method for rating appellant’s left knee permanent impairment
was not applicable in this instance, as appellant’s accepted condition did not meet the criteria for
rating the left knee condition under the ROM method.19
Dr. Harris, using the DBI method under the sixth edition of the A.M.A., Guides, found that
appellant’s diagnoses of lateral tibial plateau fracture and left knee arthroscopic partial medial
meniscectomy resulted in seven percent permanent impairment of the left lower extremity pursuant
14

Id. at 543; see also M.D., Docket No. 16-0207 (issued June 3, 2016); D.F., Docket No. 15-0664 (issued
January 8, 2016).
15

Id. at 494-531.

16

Id. at 521.

17

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

18
Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.808.6(f) (March 2017); B.B., Docket No. 18-0782
(issued January 11, 2019).
19

See A.M.A., Guides 543. This section of the A.M.A., Guides relates that the ROM impairment section is to be
used as a stand-alone rating when other grids refer to this section or no other diagnosis-based sections of this chapter
are applicable for impairment rating of a condition.

5

to Table 16-3. However, he did not reference nor explain how the grade modifiers were applied
to determine the default impairment rating for each of these diagnoses to reach seven percent
permanent lower extremity impairment. Thus, the Board finds that Dr. Harris’ report requires
clarification.20
It is well established that, proceedings under FECA are not adversarial in nature, and while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.21 Once OWCP undertook development of the
evidence by referring appellant’s file to a DMA, it had an obligation to do a complete job and
obtain a fully-rationalized opinion regarding the issue in this case.22 The Board will therefore set
aside OWCP’s March 24, 2020 decision and remand the case to its DMA to apply the A.M.A.,
Guides and provide a rationalized opinion to determine if appellant has greater than seven percent
permanent impairment of his left lower extremity. After such further development as deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an additional schedule
award.
CONCLUSION
The Board finds that the case is not in posture for decision.

20

G.M., Docket No. 19-1931 (issued May 28, 2020).

21

See W.W., Docket No. 18-0093 (issued October 9, 2018); Donald R. Gervasi, 57 ECAB 281, 286 (2005);
William J. Cantrell, 34 ECAB 1233, 1237 (1983).
22

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 28, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF THE ARMY, Fort Sill, OK,
Employer
__________________________________________

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

Docket No. 17-0668
Issued: June 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 2, 2017 appellant filed a timely appeal from a January 11, 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.2
ISSUE
The issue is whether OWCP properly exercised its discretion in denying appellant’s
requests for reimbursement of travel expenses exceeding 100 miles round trip.
On appeal appellant asserts that, because OWCP had not notified him, he was unaware
that reimbursement procedures had changed.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted evidence with his appeal to the Board. The Board cannot consider this
evidence as its jurisdiction is limited to the evidence that was before OWCP at the time it issued its final decision.
20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).

FACTUAL HISTORY
On April 27, 1992 appellant, then a 50-year-old painter, injured his back when he fell
from a ladder. OWCP adjudicated the case under File No. xxxxxx604 and accepted back
contusion and lumbar strain. Appellant was placed on the periodic compensation rolls. He has
additional claims for back injuries that were combined with the instant claim.3 The accepted
conditions were subsequently expanded to include aggravation of degeneration of lumbar
intervertebral disc and venous thrombosis of veins, left.
Appellant moved from Oklahoma to Indiana in December 1992. He was referred for
vocational rehabilitation and trained in drafting technology. In January 1994 appellant
underwent a lumbar laminectomy. He earned an associate’s degree in drafting in May 1996 and
began private employment as a production assembler in September 1996. Appellant elected
Civil Service Retirement benefits, effective September 23, 1996. Nonetheless, by decision dated
December 18, 1996, OWCP determined that appellant’s actual earnings in private employment
had fairly and reasonably represented his wage-earning capacity and reduced his compensation
accordingly.
Appellant relocated to The Villages, Florida and began employment as a maintenance
man. He stopped work on November 1, 2002 and reverted his retirement benefits to FECA
compensation benefits effective that date. Dr. Devin K. Datta, a Board-certified orthopedic
surgeon, in Melbourne, Florida, 32901, began treating appellant in November 2002. On June 4,
2003 he performed authorized anterior discectomy and fusion at L4-S1. Appellant had
additional surgery in June 2009. He was placed on the periodic compensation rolls in June 2003,
and continues to receive FECA compensation benefits.
On November 9, 2016 appellant requested authorization for travel reimbursement of 255
miles each for medical appointments on December 15, 2015, February 12, April 13, June 10,
August 11, and October 17, 2016 for medical visits in Melbourne, Florida.
OWCP informed appellant that it was unable to authorize the travel because, effective
December 18, 2012, travel limitations had been reduced to 100 miles round trip. Treatment
notes contained in the record indicate that appellant was seen by Dr. Syed Farhan Zaidi, a Boardcertified orthopedic surgeon and associate of Dr. Datta, on the dates listed.
On December 1, 2016 appellant wrote OWCP requesting reconsideration of the
November 14, 2015 denial of reimbursement for mileage. He maintained that none of the local
doctors would treat him. The claims examiner telephoned appellant on January 5, 2017. She
explained that, as he lived in an area with an abundance of physicians, OWCP could no longer
continue paying travel expenses for 255 miles round trip. The claims examiner informed him
that, if he wished to continue with his current physician, he would be reimbursed at the rate of

3

A claim for an April 20, 1979 injury, assigned OWCP File No. xxxxxx742, was accepted by OWCP for low
back strain and temporary aggravation of preexisting scoliosis. It also accepted a claim for an August 19, 1981
injury, assigned OWCP File No. xxxxxx725, for lumbar strain and aggravation of preexisting herniated nucleus
pulposus.

2

100 miles round trip only. Appellant requested that OWCP send him a list of physicians in his
area and a formal decision denying his request for travel reimbursement.
On January 11, 2017 OWCP forwarded appellant an eight-page list of physician
providers in appellant’s commuting area which included The Villages, Lady Lake, Fruitland
Park, Leesburg, and Ocala, Florida.
By decision dated January 11, 2017, OWCP denied appellant’s claim for 255 miles travel
reimbursement on December 15, 2015, February 12, April 13, June 10, August 11, and
October 17, 2016. It found that the evidence of record did not establish that travel for medical
treatment was warranted from The Villages, Florida, 32159 to Melbourne, Florida, 32901,
because there was no compelling reason for travel outside his commuting area. OWCP noted
that appellant’s commuting area included specialists who are qualified to treat his employmentrelated conditions.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.4 In interpreting section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in
the shortest amount of time.5 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.6
OWCP regulations provide that the employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances, or supplies.7 To determine a reasonable distance, OWCP will consider the
availability of services, the employee’s condition, and the means of transportation. Effective
August 29, 2011, OWCP regulations provide that a round-trip distance of up to 100 miles is
considered a reasonable distance to travel.8 If round-trip travel of more than 100 miles is
contemplated, or air transportation or overnight accommodations will be needed, the employee
must submit a written request to OWCP for prior authorization with information describing the
circumstances and necessity for such travel expenses. OWCP will approve the request if it

4

5 U.S.C. § 8103(a).

5

Dale E. Jones, 48 ECAB 648 (1997).

6

Daniel J. Perea, 42 ECAB 214 (1990) (Abuse of discretion by OWCP is generally shown through proof of
manifest error, clearly unreasonable exercise of judgement, or administrative actions which are contrary to both
logic and probable deductions from established facts).
7

20 C.F.R. § 10.315(a).

8

Id.

3

determines that the travel expenses are reasonable and necessary and are incidental to obtaining
authorized medical services, appliances or supplies.9
Pursuant to FECA Bulletin No. 14-02, issued January 29, 2014, when a claimant submits
a travel reimbursement in excess of 100 miles for a single date of service, the bill will
automatically be suspended and the Central Bill Processing provider will send notification to
OWCP claims examiner.10 FECA Bulletin No. 14-02 notes that in some limited circumstances it
may be necessary for a claimant to travel more than 100 miles on a regular basis, such as when
the claimant lives in a remote area.11
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s requests
for travel reimbursement.
On November 9, 2016 appellant requested authorization for mileage reimbursement of
255 miles each for medical appointments on December 15, 2015, February 12, April 13, June 10,
August 11, and October 17, 2016.
As noted above, OWCP regulations provide that generally a round trip of up to 100 miles
is a reasonable distance to travel.12 There may be circumstances where travel reimbursement of
more than 100 miles is appropriate. An example of those circumstances might be an appellant
who lives in a remote area with limited medical services and physicians of an appropriate
specialty. To establish that a travel reimbursement of more than 100 miles is warranted, OWCP
regulations indicate that the claimant must provide information describing the circumstances and
necessity for such travel expenses.13
In this case, there is no evidence that appellant lived in a remote area with limited access
to medical services or providers. There is no indication that competent and appropriate medical
care was not available within his commuting area. Although OWCP had authorized travel
expenses to Dr. Datta and his associates in the past, this past practice does not establish a right to
continuing authorization.14 As indicated in FECA Bulletin No. 14-02, any travel reimbursement
request of more than 100 miles is to be reviewed by an OWCP claims examiner.15

9

Id. at § 10.315(b).

10

FECA Bulletin No. 14-02 (issued January 29, 2014).

11

Id.

12

20 C.F.R. § 10.315(a).

13

Id. at § 10.315(b).

14

See W.H., Docket No. 14-1662 (issued February 3, 2015).

15

Supra note 10.

4

The Board finds that OWCP properly denied the travel reimbursement request in this
case. No probative evidence was presented with respect to the necessity of travel over the 100mile standard set forth in OWCP regulations. OWCP has administrative discretion with respect
to authorization of travel reimbursement.16 The Board finds that OWCP did not abuse its
discretion in denying appellant’s travel reimbursement requests.17
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 OWCP did not abuse its discretion in denying appellant’s request
for travel reimbursement.
ORDER
IT IS HEREBY ORDERED THAT the January 11, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

Supra note 6.

17

See V.K., Docket No. 12-1103 (issued October 12, 2012).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
FEDERAL JUDICIARY, U.S. PROBATION
OFFICE, Dallas, TX, Employer
__________________________________________

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

Docket No. 07-322
Issued: May 2, 2007

Case Submitted on the Record

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

JURISDICTION
On November 15, 2006 appellant filed a timely appeal from the September 7, 2006
nonmerit decision of the Office of Workers’ Compensation Programs, which denied her request
for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the reconsideration issue.
ISSUE
The issue is whether the Office properly denied appellant’s August 25, 2006 request for
reconsideration.
FACTUAL HISTORY
On June 24, 2003 appellant, then a 43-year-old office clerk, filed a claim alleging that her
bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome and her neck and shoulder
musculoskeletal disorders were a result of her federal employment. The Office accepted her
claim for bilateral carpal tunnel syndrome and bilateral lesion of the ulnar nerve. Appellant

underwent surgical decompression of the right and left median nerve on November 3, 2003 and
January 12, 2004. She underwent surgical decompression of the right and left ulnar nerve on
March 1, 2004.
On February 13, 2006 appellant filed a claim for a schedule award. She submitted an
impairment rating from her hand surgeon, Dr. R. Robert Ippolito. On March 20, 2006 an Office
medical adviser, Dr. H. Mobley, reviewed Dr. Ippolito’s findings and determined that appellant
had a 29 percent impairment of her left upper extremity and a 32 percent impairment of her right
upper extremity due to sensory and motor deficits of the median and ulnar nerves. The record
showed that appellant received a schedule award in 1996, under another case number,1 for a
34 percent impairment of her right upper extremity. Dr. Mobley stated: “In my opinion, this
32 percent RUE [right upper extremity] evaluation represents the present total impairment of the
RUE and is a duplication of [the earlier medical adviser’s] 34 percent RUE. Therefore, there is
no additional RUE schedule award.”
On June 29, 2006 the Office issued a schedule award for a 29 percent permanent
impairment of appellant’s left upper extremity. On August 25, 2006 appellant requested
reconsideration. She explained that her 1996 schedule award for the right upper extremity was
specifically for loss of thumb and wrist motion and loss of strength, while Dr. Ippolito’s current
impairment rating was for the newly accepted conditions of bilateral carpal and cubital tunnel
syndrome. Dr. Ippolito addressed the same point in his August 21, 2006 report. He stated that
he disagreed with the Office medical adviser that appellant’s impairment rating for the newly
accepted conditions was a duplication.
In a decision dated September 7, 2006, the Office denied appellant’s request for
reconsideration. The Office found that the request neither raised substantive legal questions nor
included new and relevant evidence and was, therefore, insufficient to warrant a review of the
prior decision.
On appeal, appellant advances the same argument she made in her August 25, 2006
request for reconsideration. She disagrees that Dr. Ippolito’s current impairment rating is a
duplication of the rating she received in 1996. Appellant asks the Board to review all the
documentation she provided “as I feel that no schedule award was paid for the right ulnar and
median nerve damage.”
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against payment of compensation at anytime on its own motion or upon

1

Office File No. 160221910.

2

application.2 The employee shall exercise this right through a request to the Office. The request,
along with the supporting statements and evidence, is called the “application for
reconsideration.”3
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.4
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.5 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.6
ANALYSIS
The Board has jurisdiction to consider and decide appeals from the final decision of the
Office in any case arising under the Act.7 As the Board’s jurisdiction is limited to final decisions
of the Office issued within one year prior to the date of the filing of the appeal,8 the only decisions
the Board may review on this appeal are the Office’s June 29, 2006 schedule award for a
29 percent permanent impairment of the left upper extremity and the Office’s September 7, 2006
decision denying appellant’s request for reconsideration. However, appellant does not appeal the
schedule award for her left upper extremity. Neither she nor her hand surgeon, Dr. Ippolito, has
expressed disagreement with the percentage awarded or the number of weeks paid for the
impairment of that extremity. All of appellant’s argument relates to the right upper extremity
and her contention that the Office should issue an additional schedule award for that extremity
because her previous schedule award reflected no impairment for the accepted carpal and cubital
tunnel syndromes.

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.605 (1999).

4

Id. at § 10.606.

5

Id. at § 10.607(a).

6

Id. at § 10.608.

7

Id. at § 501.2(c).

8

Id. at § 501.3(d).

3

The Office’s June 29, 2006 schedule award decision makes no mention of the right upper
extremity. It cannot be interpreted by its terms or on its face as a denial of schedule
compensation for the right upper extremity. The Office has issued no final decision on
appellant’s entitlement to an additional schedule award for her right upper extremity based on the
newly accepted conditions. Dr. Mobley is an Office medical adviser and his March 20, 2006
comments do not constitute a final, appealable decision of the Office. Appellant observes that no
schedule award was paid for the right ulnar and median nerve damage. More to the point,
neither was a schedule award denied. With no final decision on the issue, the Board has no
jurisdiction to entertain the merits of appellant’s argument or to make a finding on whether she is
entitlement to an additional schedule award on the right.
The Board finds that appellant’s request for reconsideration fails to meet at least one of
the three standards for obtaining a merit review of her case. It does not show that the Office
erroneously applied or interpreted a specific point of law when it awarded compensation for a
29 percent permanent impairment of the left upper extremity. Neither does it advance a relevant
legal argument or include relevant new evidence. The reason is that the June 29, 2006 decision
related solely to the left upper extremity. All of appellant’s arguments and evidence relate to the
right upper extremity, a matter not yet adjudicated by the Office. None of this argument or
evidence is relevant to the schedule award for the left upper extremity.
Because appellant’s request for reconsideration fails to meet at least one of the criteria for
obtaining a merit review of her case, the Board will affirm the Office decision denying that
request.9
CONCLUSION
The Board finds that the Office properly denied appellant’s August 25, 2006 request for
reconsideration.

9

Appellant may simply ask the Office to issue a final decision with appeal rights on whether she is entitled to an
additional schedule award for her right upper extremity.

4

ORDER
IT IS HEREBY ORDERED THAT the September 7, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 19-1510
Issued: February 12, 2020

Case Submitted on the Record

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

JURISDICTION
On July 8, 2019 appellant, through counsel, filed a timely appeal from a May 7, 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 knee injury
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On November 24, 2015 appellant, then a 55-year-old management/program assistant, filed
an occupational disease claim (Form CA-2) alleging that she sustained a meniscus tear of her left
knee due to receiving, packing, and shipping boxes/cases to the service center while in the
performance of duty.3 She indicated that she first became aware of her claimed injury on April 14,
2015 and first realized its relation to factors of her federal employment on November 18, 2015.
Beginning in May 2015, appellant periodically stopped work to seek medical care for her left knee
condition.4
In an accompanying statement, appellant indicated that, beginning in October 2000, she
handled boxes for two to four hours at a time at least three times per week. She advised that these
boxes weighed approximately 10 to 25 pounds and that handling the boxes required bending,
stooping, lifting boxes, and carrying boxes 10 to 15 feet.5
Appellant submitted a November 18, 2015 report from Dr. Marc M. Levison, Boardcertified in physical medicine and rehabilitation, who indicated that appellant presented with the
primary complaint of pain in the left lateral and left posterior areas of her left knee.6 Dr. Levison
noted that physical examination of the left knee revealed swelling, medial joint tenderness, and a
positive McMurray test. He diagnosed internal derangement of the left knee and referred appellant
for evaluation by an orthopedic specialist. In an attending physician’s report (Form CA-20),
Dr. Levison listed the date of injury as April 14, 2015 and diagnosed internal derangement of the
left knee due to the employment activity.
The findings of a November 9, 2015 magnetic resonance imaging (MRI) scan of
appellant’s left knee contained an impression of “high probability of tear of the posterior horn of
the medial meniscus.”
In a January 15, 2016 development letter, OWCP requested that appellant submit
additional factual and medical evidence in support of her claim. On January 15, 2016 it also

3

A position description of the management/program assistant position indicates that it required intermittent
standing, walking, bending/stooping, twisting, simple grasping, pushing/pulling/lifting, and reaching above the
shoulder.
4

In 2005 appellant suffered a nonwork-related anterior cruciate ligament tear of her left knee which improved
without surgical intervention.
5

Appellant indicated that she had some right knee pain, but she did not associate a specific right knee condition
with employment factors.
6
In a March 31, 2015 report, Dr. Levison noted that appellant complained of pain and swelling in both knees.
Appellant submitted additional reports of Dr. Levison which showed that, by late-2015, she was primarily complaining
of symptoms in her left knee.

2

requested additional evidence from the employing establishment. OWCP afforded appellant 30
days to submit the requested information.
In a January 28, 2016 e-mail, appellant’s immediate supervisor indicated that he did not
dispute appellant’s description of her job duties since June 2013 when he became her supervisor.
He indicated that he did not have knowledge of her job duties prior to that time.
Appellant submitted additional medical evidence, including a December 29, 2015 report
from Dr. Darren J. Friedman, a Board-certified orthopedic surgeon, who discussed his
performance on that date of left knee surgery, including arthroscopic lysis of adhesions, partial
medial meniscectomy, and chondroplasty/debridement of the patellofemoral compartment. The
surgery was not authorized by OWCP. In a January 6, 2016 report, Dr. Freidman discussed the
follow-up care appellant received after her December 29, 2015 surgery.
By decision dated February 26, 2016, OWCP accepted that appellant had established
employment factors in the form of bending, stooping, twisting, and packing, lifting, and carrying
boxes. However, it denied her claim, finding that she had not submitted sufficient medical
evidence to establish a medical condition causally related to the accepted factors of her federal
employment. OWCP concluded, therefore, that appellant had not met the requirements to establish
“an injury and/or medical condition causally related to the accepted work event(s).”
On March 9, 2016 appellant, through counsel, requested a hearing with a representative of
OWCP’s Branch of Hearings and Review.
Appellant submitted a statement in which she provided additional details about her work
activities and indicated that the pain in her left knee was constant. She also submitted physical
therapy reports and additional medical reports from early-2016, including a February 12, 2016
addendum that Dr. Levison made to his November 18, 2015 report. Dr. Levison indicated that
appellant reported that her job required her to constantly bend and handle heavy boxes over the
past 13 years. Appellant advised that she had to pack boxes, lift boxes in and out of mails carts,
and push mail carts filled with packed boxes. Dr. Levison noted that, in particular, appellant
reported increased left knee discomfort due to shipping boxes between November 2014 and
February 2015 and in September 2015. He advised that a November 9, 2015 MRI scan of
appellant’s left knee showed a tear of the posterior horn of the medial meniscus and indicated, “As
there is no other history of injury or trauma to the left knee and the patient did not develop
discomfort until she performed the activities mentioned above, the injury to the left knee is causally
related to her duties as described.”
Prior to a hearing being held, OWCP’s hearing representative conducted a preliminary
review and issued a September 20, 2016 decision which set aside the February 26, 2016 decision.
She found that Dr. Levison’s February 12, 2016 addendum report necessitated further development
of the medical evidence and remanded the case to OWCP for referral of appellant for a second
opinion examination and opinion regarding whether she sustained an employment-related knee
condition.
On remand OWCP referred appellant and the case record to Dr. Mark Berman, a Boardcertified orthopedic surgeon, for a second opinion examination and opinion regarding whether she
sustained an employment-related knee condition.

3

In an October 24, 2016 report, Dr. Berman reported his physical examination findings and
noted that appellant complained of bilateral knee pain and that she had osteoarthritis in both knees.
He indicated that she did not describe a twisting injury to either knee and he posited that her
bilateral knee condition was not related to her employment activities. Dr. Berman advised that
appellant could perform her date-of-injury job on a full-time basis.
By decision dated January 11, 2017, OWCP determined that appellant had not met her
burden of proof to establish a knee injury causally related to the accepted factors of her federal
employment. It found that the weight of the medical evidence with respect to this matter rested
with the opinion of Dr. Berman.
On January 18, 2017 appellant, through counsel, requested a telephonic hearing with
OWCP’s hearing representative. During the hearing held on June 28, 2017, counsel argued that
Dr. Berman’s October 24, 2016 report did not contain adequate medical rationale in support of its
conclusions.
By decision dated August 1, 2017, OWCP’s hearing representative set aside the
January 11, 2017 decision due to her determination that there was an unresolved conflict in the
medical opinion evidence between Dr. Levison and Dr. Berman regarding whether appellant had
an employment-related knee condition. She remanded the case to OWCP for referral of appellant
and the case record to an impartial medical specialist for an examination and opinion on the matter.
On remand OWCP referred appellant and the case record, including an August 9, 2017
statement of accepted facts (SOAF), to Dr. Alan M. Crystal, a Board-certified orthopedic surgeon,
for an impartial medical examination and opinion regarding whether she sustained an employmentrelated knee condition.
In a September 13, 2017 report, Dr. Crystal discussed appellant’s factual and medical
history and reported his findings upon physical examination. He indicated that she exhibited
normal range of motion of both knees and that there was no tenderness to palpation in either knee.
Dr. Crystal opined that there was no explanation to link causation between appellant’s diagnosed
knee conditions (arthritis and torn meniscus) and her work duties. He indicated that she had a
complex tear of the medial meniscus of the left knee and advised that a complex tear pattern (torn
in multiple directions) of a meniscus occurred with long-term degeneration. Dr. Crystal posited
that all the physical requirements listed in the SOAF would not have any twisting motion that
could cause a torn meniscus. He noted that appellant also had left knee patella chondral
degenerative changes and indicated that this was an area where arthritic articular surface
degeneration could first occur. Dr. Crystal advised that, because the diagnostic testing did not
show evidence of patellar tendinitis, the work duties described in the SOAF could not be causally
linked to a knee pathology. He asserted that there were no objective findings of employmentrelated aggravation of preexisting knee arthritis or a “degenerating tearing meniscus.” Dr. Crystal
posited that degenerative arthritis had a direct relationship to obesity and noted that appellant had
been treated for obesity, including treatment through gastric bypass surgery. He advised that
obesity could not only be a causative factor in degenerative knee arthritis, but also “potentiates the
arthritis once the degeneration has commenced.” Dr. Crystal maintained that appellant could
perform her date-of-injury job, noting that she had only minor patellar degeneration. In an attached
September 28, 2017 work capacity evaluation form (Form OWCP-5c), he noted that appellant did
not have work restrictions.
4

By decision dated November 9, 2017, OWCP determined that appellant had not met her
burden of proof to establish a knee injury causally related to the accepted factors of her federal
employment. It found that the special weight of the medical opinion evidence rested with the
September 13, 2017 report of Dr. Crystal, the impartial medical specialist.
On November 17, 2017 appellant, through counsel, requested a telephonic hearing with
OWCP’s hearing representative. During the hearing held on April 13, 2018 counsel argued that
Dr. Crystal’s opinion was not well rationalized.
By decision dated June 20, 2018, OWCP’s hearing representative set aside the
November 9, 2017 decision due to her determination that Dr. Crystal did not provide adequate
medical rationale in support of his opinion that appellant did not have an employment-related knee
condition. She remanded the case to OWCP in order to request a supplemental report from
Dr. Crystal which would provide further explanation regarding the question of whether appellant
had an employment-related knee condition. OWCP provided Dr. Crystal with an updated SOAF,
dated July 19, 2018, which provided additional details regarding appellant’s work duties.
In an August 20, 2018 supplemental report, Dr. Crystal indicated that he had reviewed the
July 19, 2018 SOAF and advised that it remained his opinion that appellant’s knee conditions were
not caused or contributed to by the accepted employment exposures. He indicated that the
additional tasks described in the July 19, 2018 SOAF had not changed his previous opinion and
noted that “a realistic traumatic mechanism causing signiﬁcant knee arthritis is not caused by
carrying 10 [to] 25 pounds, by repetitive bending, repetitive stooping, or any of the tasks listed in
the revised SOAF.” Dr. Crystal posited that a realistic causative factor for knee arthritis was
obesity, which for appellant had been treated. He indicated that a realistic mechanism causing torn
menisci was not carrying 10 [to] 25 pounds or any of the other tasks listed in the revised SOAF,
but rather a realistic factor causing torn menisci was knee arthritis.
By decision dated September 12, 2018, OWCP determined that appellant had not met her
burden of proof to establish a knee injury causally related to the accepted factors of her federal
employment. It found that the special weight of the medical opinion evidence rested with the
September 13, 2017 and August 20, 2018 reports of the Dr. Crystal.
On September 19, 2018 appellant, through counsel, requested a telephonic hearing with
OWCP’s hearing representative. During the hearing held on February 15, 2019, counsel argued
that Dr. Crystal did not provide sufficient medical rationale for his opinion on causal relationship
in his August 20, 2018 supplemental report.
By decision dated May 7, 2019, OWCP’s hearing representative affirmed the
September 12, 2018 decision, finding that the special weight of the medical opinion evidence
rested with the reports of Dr. Crystal.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
7

Supra note 2.

5

evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or medical condition for which compensation is claimed is causally related to the employment
injury.8 These are the essential elements of every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.9
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.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.12 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.13
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.”14 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.15

8

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
9

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

10
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
11

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018).

13

Id.; Victor J. Woodhams, supra note 10.

14

5 U.S.C. § 8123(a).

15
D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).

6

ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP properly determined that there was a conflict in the medical opinion evidence
between Dr. Levison, an attending physician, and Dr. Berman, an OWCP referral physician, on
the issue of whether appellant sustained a knee injury causally related to the accepted factors of
her federal employment. In order to resolve the conflict, it properly referred appellant, pursuant
to 5 U.S.C. § 8123(a), to Dr. Crystal for an impartial medical examination and an opinion on the
matter.
In a situation where OWCP secures an opinion from an impartial medical examiner for the
purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, it has the responsibility to secure a supplemental report from
the examiner for the purpose of correcting the defect in the original opinion.16 If a given impartial
medical specialist is unable to clarify or elaborate on his or her original report or if his or her
supplemental report is also vague, speculative, or lacking in rationale, it must submit the case record
and a detailed SOAF to a second impartial specialist for the purpose of obtaining his or her
rationalized medical opinion on the issue.17
In a September 13, 2017 report, Dr. Crystal opined that there was no explanation to link
causation between appellant’s diagnosed knee conditions (arthritis and torn meniscus) and her
work duties. He indicated that she had a complex tear of the medial meniscus of the left knee and
advised that a complex tear pattern of a meniscus occurred with long-term degeneration.
Dr. Crystal asserted that there were no objective findings of employment-related aggravation of
preexisting knee arthritis or a “degenerating tearing meniscus.” He posited that degenerative
arthritis has a direct relationship to obesity and noted that appellant had been treated for obesity.
Dr. Crystal further advised that obesity could not only be a causative factor in degenerative knee
arthritis, but also “potentiates the arthritis once the degeneration has commenced.” In an
August 20, 2018 supplemental report, he indicated that he had reviewed an updated SOAF and
advised that it remained his opinion that appellant’s knee conditions were not caused or contributed
to by the accepted employment exposures. Dr. Crystal indicated that the additional tasks described
in the updated SOAF had not changed his previous opinion and noted that “a realistic traumatic
mechanism causing signiﬁcant knee arthritis is not caused by carrying 10 [to] 25 pounds, by
repetitive bending, repetitive stooping, or any of the tasks listed in the revised SOAF.”
In both his September 13, 2017 report and his August 20, 2018 supplemental report,
Dr. Crystal provided an opinion that appellant’s accepted work duties, including bending,
stooping, lifting boxes, and carrying boxes, did not cause a knee condition or aggravate a
preexisting knee condition. The Board notes that Dr. Crystal’s opinion in this regard was
essentially conclusory in nature and was not adequately supported by explanatory medical
rationale. For this reason, the September 13, 2017 report of Dr. Crystal and his August 20, 2018
supplemental report did not sufficiently address the underlying issue of the present case.
Therefore, in order to resolve the conflict in the medical opinion evidence, the case will be
16

S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

17

M.D., Docket No. 19-0510 (issued August 6, 2019); Harold Travis, 30 ECAB 1071, 1078 (1979).

7

remanded to OWCP for referral of the case record (including a SOAF) and appellant to a new
impartial medical specialist for examination and an opinion which evaluates whether she sustained
a knee condition causally related to the accepted factors of her federal employment.18 After such
further development as OWCP deems necessary, a de novo decision shall be issued.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 7, 2019 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: February 12, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

18

See supra note 17.

8