United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINSITRATION MEDICAL
CENTER, Orlando, FL, Employer
__________________________________________

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

Docket No. 17-0834
Issued: August 11, 2017

Case Submitted on the Record

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

JURISDICTION
On March 6, 2017 appellant, through counsel, filed a timely appeal from a January 23,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has more than one percent permanent impairment of her
left lower extremity for which she previously received a schedule award.
FACTUAL HISTORY
The case has previously been before the Board.3 The facts of the case as presented in the
Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
OWCP accepted that appellant sustained a left knee contusion and left knee derangement
when she tripped on a chair in the performance of duty on October 13, 2006. Appellant
underwent an authorized left knee arthroscopic surgery on February 9, 2007. She received leave
buy-back compensation from February 9 to 23, 2007.
On May 21, 2007 appellant filed a claim for a schedule award (Form CA-7). On
October 30, 2007 OWCP denied appellant’s schedule award claim as no evidence had been
submitted in support of the claim. On November 5, 2007 appellant requested a telephone
hearing before an OWCP hearing representative. By decision dated June 12, 2008, OWCP’s
hearing representative affirmed the denial of the schedule award claim, finding that the record
was devoid of evidence establishing permanent impairment.
By decision dated April 3, 2009, the Board affirmed the June 12, 2008 OWCP decision
denying a schedule award for the left lower extremity.4 The Board noted that the medical
evidence of record did not contain a probative medical opinion as to an employment-related
permanent impairment.
Appellant submitted a May 12, 2010 report from Dr. Robert Murrah, a Board-certified
orthopedic surgeon. Dr. Murrah noted that a magnetic resonance imaging (MRI) scan had shown
some chondromalacia patella, with no tear of the meniscus.
In an August 10, 2010 report, Dr. Murrah provided results on examination and diagnosed
chronic left knee pain and swelling following the October 13, 2006 injury, and chondromalacia
patella. He opined that appellant had reached maximum medical improvement and had five
percent whole body permanent impairment. In an October 26, 2010 report, Dr. Murrah wrote
that he had assigned appellant 11 percent left lower extremity permanent impairment under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides) (2009).
By report dated April 13, 2012, an OWCP medical adviser, Dr. Howard Hogshead, a
Board-certified orthopedic surgeon, opined that appellant had one percent left lower extremity
permanent impairment. He applied Table 16-3 of the A.M.A., Guides, to determine a diagnosisbased impairment (DBI) rating for the knee.
3

Docket No. 13-0894 (issued July 8, 2013); Docket No. 08-2054 (issued April 3, 2009).

4

Docket No. 08-2054 (issued April 3, 2009).

2

In a decision dated July 10, 2012, OWCP issued a schedule award for one percent left
lower extremity permanent impairment. The period of the award was 2.88 weeks from
August 10, 2010. An OWCP hearing representative affirmed the schedule award determination
in a February 5, 2013 decision. Appellant appealed to the Board.
The Board subsequently set aside the February 5, 2013 decision.5 The Board found that
OWCP’s medical adviser had not fully explained how Table 16-3 had been applied with respect
to the net adjustment for the diagnosed condition. It was noted that the medical adviser had
found clinical studies not applicable, although Dr. Murrah had referred to MRI scan results.
OWCP referred the case to another OWCP medical adviser, Dr. James Dyer, a Boardcertified orthopedic surgeon. By report dated July 25, 2013, Dr. Dyer opined that the left lower
extremity permanent impairment under Table 16-3 was one percent. In an August 8, 2013
report, he opined that there was no tear of the meniscus and no basis for an additional permanent
impairment.
By decision dated August 14, 2013, OWCP found that appellant was not entitled to an
additional schedule award. It found the medical evidence of record did not establish more than
one percent left lower extremity permanent impairment.
Appellant, through counsel, on September 3, 2013 requested an oral hearing before an
OWCP hearing representative. A hearing was held on February 13, 2014. Counsel argued that
the case should be referred for a second opinion examination.
By decision dated April 7, 2014, the hearing representative affirmed the August 14, 2013
OWCP decision. He found the weight of the evidence was represented by OWCP’s medical
adviser, Dr. Dyer.
On December 16, 2015 appellant submitted a report dated February 13, 2015 from
Dr. Samy Bishai, an orthopedic surgeon. Dr. Bishai provided results on examination, including
left knee range of motion (ROM). He opined that appellant had 20 percent left lower extremity
permanent impairment under Table 16-23 of the A.M.A., Guides, for loss of knee ROM.
In a report dated June 4, 2015, Dr. Murrah provided a history and results on examination.
He reported full ROM of the left knee. The record also contains a report from Dr. Murrah dated
December 10, 2015, reporting full ROM of the left knee.
The case was referred to an OWCP medical adviser, Dr. Jovito B. Estaris, Board-certified
in occupational medicine. In a report dated February 27, 2016, Dr. Estaris found that appellant
had one percent permanent impairment under Table 16-3. He reviewed Dr. Murrah’s report and
indicated the diagnosis was contusion, with a class 1 default impairment of one percent.
Dr. Estaris applied grade modifier 1 for physical examination, functional history, and clinical
studies, resulting in no adjustment from the default impairment.

5

Docket No. 13-0894 (issued July 8, 2013).

3

By decision dated March 14, 2016, OWCP found that appellant was not entitled to
additional left lower extremity permanent impairment. It found that the probative medical
evidence did not establish more than one percent permanent impairment of the left lower
extremity.
On March 31, 2016 counsel again requested a hearing before an OWCP hearing
representative. A hearing was held on November 9, 2016. Counsel argued the medical evidence
was sufficient to require further development.
By decision dated January 23, 2017, the hearing representative affirmed the March 14,
2016 OWCP decision. He found that OWCP’s medical adviser properly utilized the findings of
Dr. Murrah and the medical evidence did not establish more than one percent left lower
extremity permanent impairment.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.6 Neither FECA,7 nor its
implementing regulations8 specify the manner in which the percentage of impairment for a
schedule award shall be determined. For consistent results and to ensure equal justice for all
claimants, OWCP has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.9 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth
edition.10
With respect to knee impairment, the A.M.A., Guides provides a regional grid at Table
16-3. The class of impairment (CDX) is determined based on specific diagnosis, and then the
default value for the identified CDX is determined. The default value (grade C) may be adjusted
by using grade modifiers for Functional History (GMFH, Table 16-6), Physical Examination
(GMPE, Table 16-7), and Clinical Studies (GMCS, Table 16-8). The adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11

6

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
7

Id.

8

20 C.F.R. § 10.404.

9

A. George Lampo, 45 ECAB 441 (1994).

10

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

11

The net adjustment is up to +2 (grade E) or -2 (grade A).

4

ANALYSIS
OWCP accepted that appellant’s left knee contusion and left knee derangement had
occurred in the performance of duty on October 13, 2006. Appellant underwent left knee
arthroscopic surgery on February 9, 2007. She received a schedule award for one percent
permanent impairment of the left lower extremity. The issue is whether appellant has established
greater permanent impairment for purposes of an increased schedule award.
The Board finds that appellant has not established more than one percent permanent
impairment of the left lower extremity for which she previously received a schedule award.
Following the Board’s last review of this schedule award claim, OWCP requested and
received a July 25, 2013 report from Dr. Dyer, an OWCP medical adviser. Dr. Dyer explained
that appellant did not have a tear of the meniscus and, therefore, had one percent permanent
impairment pursuant to Table 16-3.
In support of her claim, appellant submitted a February 13, 2015 report from Dr. Bishai,
opining that appellant had 20 percent left lower extremity permanent impairment.
The February 13, 2015 report, however, is of diminished probative value to the issue
presented. Dr. Bishai applied Table 16-23, for knee motion impairment. He did not, however,
discuss how the ROM measurements for knee flexion were made.12 Moreover, as noted by
OWCP’s medical adviser, subsequent reports from appellant’s attending physician, Dr. Murrah,
reported full ROM of the left knee. Dr. Murrah reported full ROM in reports dated June 4 and
December 10, 2015. It is unclear whether any reported limitation of knee ROM by Dr. Bishai
were in accord with the A.M.A., Guides.
The Board has previously held that the diagnosis-based impairment (DBI) methodology
is the primary method of lower extremity permanent impairment evaluation.13 Dr. Bishai did not
explain why use of the ROM method was appropriate in the present case. The ROM method is
used to determine actual impairment values of the lower extremities only when it is not possible
to otherwise define impairment.14
For these reasons, the Board finds Dr. Bishai’s opinion is insufficient to establish the
degree of left lower extremity permanent impairment in this case. OWCP’s medical adviser did
provide a rationalized medical opinion on this issue. In his February 27, 2016 report, Dr. Estaris
indicated that he had applied Table 16-3, the DBI table, to the knee examination findings by
Dr. Murrah. The medical adviser noted that the grade C (default) impairment for history of knee
contusion or other soft tissue lesion was one percent.15 Applying the net adjustment formula,16
12

A.M.A., Guides 546, Figure 16-8 discusses measuring knee flexion.

13

Id. at 497.

14

See P.M., Docket No. 16-0367 (issued March 27, 2017).

15

A.M.A., Guides 509, Table 16-3.

16

Supra note 9.

5

Dr. Estaris used grade modifier one for functional history, physical examination, and clinical
studies. This results in no adjustment from the default impairment.
The Board finds that the weight of the evidence is represented by Dr. Estaris. Dr. Estaris
properly explained how he applied Table 16-3 to determine the degree of appellant’s left lower
extremity permanent impairment. Based on the evidence of record, appellant has not established
more than one percent left lower extremity permanent impairment.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established more than one percent permanent
impairment of her left lower extremity for which she previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 23, 2017 is affirmed.
Issued: August 11, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, FIELD OFFICE,
Hartford, CT, Employer
__________________________________________

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Appearances:
Michael Patterson, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1244
Issued: March 14, 2013

Case Submitted on the Record

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

JURISDICTION
On May 16, 2012 appellant filed a timely appeal of a November 22, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP), denying reconsideration without merit
review of the claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the November 22, 2011
nonmerit decision. Since more than 180 days elapsed from the most recent merit decision of
October 5, 2011 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
the claim.
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant further review of the merits. Under 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 16, 2011 appellant, then a 51-year-old equal opportunity assistant, filed a
traumatic injury claim (Form CA-1) alleging that on August 4, 2011 she sustained injuries in the
performance of duty. She stated that her office was moving to a different floor and she had been
cleaning and preparing files which exacerbated her “physical and mental disabilities.” Appellant
described the nature of her injuries as “fibromyalgia, pain musculoskeletal, left knee, support
cane and secondary physiological.”
Appellant submitted an August 17, 2011 note from Dr. Andrew Feller, a family
practitioner. She received treatment commencing August 4, 2011 and was able to return to work
on August 13, 2011.
By decision dated October 5, 2011, OWCP denied the claim for compensation. It found
that the incident on August 4, 2011 occurred as alleged, but the medical evidence was
insufficient to establish causal relation.
In a letter dated October 17, 2011, appellant requested reconsideration of her claim. She
stated that she had been unable to send documents by fax and was told by an employing
establishment compensation manager that she could have requested a time extension, but she was
unaware that such a request could be made. Appellant submitted physical therapy records. She
also submitted an October 4, 2011 report from Dr. Jay Kimmel, an orthopedic surgeon, providing
results on examination. Dr. Kimmel stated that appellant continued to have right knee pain.
Appellant received an injection of Lidocaine and Depo-Medrol. Dr. Kimmel also completed an
October 4, 2011 form report stating that she should remain out of work until October 20, 2011
due to a right medial meniscus tear.
By decision dated November 22, 2011, OWCP determined that appellant’s application
for reconsideration was insufficient to warrant merit review of the claim. It stated, “Although
the claimant states that she has attached medical evidence from various providers, [OWCP] has
in receipt physical therapy notes dated September 15 to 30, 2011, which is irrelevant to the issues
at hand. To date no medical evidence from a physician has been received.”
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either (1) shows that OWCP erroneously applied or interpreted a specific point of
law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent evidence not previously considered by OWCP.3 20 C.F.R.
§ 10.608(b) states that any application for review that does not meet at least one of the

2

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at anytime on his own motion or on application.”)
3

20 C.F.R. § 10.606(b)(2).

2

requirements listed in 20 C.F.R. § 10.606(b)(2) will be denied by OWCP without review of the
merits of the claim.4
ANALYSIS
Appellant submitted an October 17, 2011 application for reconsideration. She submitted
medical evidence from Dr. Kimmel on October 31, 2011 consisting of reports dated
October 4, 2011. OWCP did not review this evidence in the November 22, 2011 decision, as it
specifically noted that no medical evidence from a physician had been received. The
implementing federal regulations provide that “OWCP will consider all evidence submitted
appropriately.” In this case, OWCP did not consider the evidence submitted with appellant’s
request.5 The Board has also held that OWCP must review all the evidence received prior to the
issuance of its final decision.6
The case will be remanded to OWCP to properly consider the medical evidence of record
with respect to the reconsideration request. After such further development as OWCP deems
necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision as OWCP failed to consider
the evidence of record.

4

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

5

Id. at § 10.119.

6

M.M., Docket No. 11-1852 (issued April 12, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 22, 2011 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: March 14, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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DEPARTMENT OF JUSTICE, BUREAU OF
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PRISONS, MEDICAL CENTER FOR FEDERAL )
PRISONERS, Springfield, MO, Employer
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__________________________________________ )
L.J., Appellant

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

Docket No. 13-104
Issued: March 25, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On October 18, 2012 appellant filed a timely appeal from a September 10, 2012 decision
of the Office of Workers’ Compensation Programs (OWCP) that denied his schedule award
claim for facial disfigurement. The claim was docketed as No. 13-104.
The Board has duly considered the matter and finds that this case is not in posture for
decision. Upon review of the case record submitted by OWCP, the Board finds that the record
before it is incomplete. OWCP accepted that appellant, a sports specialist, sustained multiple
injuries on April 26, 2008 when he was accidentally struck in the head by a softball bat.1 On
October 1, 2009 appellant filed a schedule award claim. Following an initial denial and remand
by an OWCP hearing representative, by decision dated November 8, 2010, appellant was granted
a schedule award for 10 percent impairment of the right arm. In a May 4, 2011 decision, an
OWCP hearing representative affirmed the November 8, 2010 decision regarding schedule award
1

The accepted conditions are: fracture other facial bones, closed; periocular bruising; black eye, not otherwise
specified; concussion with loss of consciousness of 30 minutes or less; closed fracture of C7 cervical vertebral
without spinal cord injury; acute and subacute iridocyclitis, not otherwise specified, right; closed fracture of base of
skull without intracranial injury; multiple closed fracture of skull without intracranial injury, with brief loss of
consciousness; closed fracture of mandible; traumatic subarachnoid hemorrhage without open wound, brief coma.

entitlement for the right arm and remanded the case to OWCP to determine to whether appellant
was entitled to a schedule award for additional accepted conditions. In a July 18, 2011 decision,
OWCP found that appellant was not entitled to a schedule award for additional conditions.
In July 2011 appellant claimed a schedule award for disfigurement. In an August 1, 2011
report, Dr. Carl Claxton, an osteopath, noted that appellant had a healed longitudinal right
temporal bone fracture and fracture through the zygomatic arch and inferolateral orbital wall
with fracture of the right mandibular sinus which resulted in permanent anatomic abnormalities
and loss of function and an additional four centimeters healed surgical incision on the right
anterior neck. In an October 10, 2011 report, Dr. Daniel D. Zimmerman, Board-certified in
internal medicine and pediatrics and an OWCP medical adviser, opined that the accepted
condition had not resulted in permanent disfigurement of a scheduled member. He indicated that
he had reviewed photographs and that these did not show a facial disfigurement that would act as
a hindrance to employability.
By decision dated October 17, 2011, OWCP denied appellant’s claim for a disfigurement
award. Appellant timely requested hearings on both the July 18 and October 17, 2011 decisions.
A hearing was held on November 10, 2011. On January 26, 2012 an OWCP hearing
representative affirmed the July 18, 2011 decision. In a separate decision, the hearing
representative set aside the October 17, 2011 decision regarding disfigurement on the grounds
that OWCP had not followed its procedures because OWCP’s medical adviser did not address
whether maximum medical improvement had been reached, and because there was no indication
that the District Director had concurred with the medical adviser’s conclusion, as required by
OWCP procedures.
In a February 28, 2012 report, Dr. Zimmerman, the medical adviser, indicated that
maximum medical improvement was reached on July 27, 2011, the date of three photographs.
He stated that the minimally visible scar was not sufficient to entitle a monetary award and that
the August 1, 2011 report from Dr. Claxton provided no reason to consider a monetary award.
On March 16, 2012 Lois Maxwell, the District Director, concurred with the medical adviser’s
conclusion. In a March 22, 2012 decision, OWCP denied the claim for a schedule award for
disfigurement. Appellant requested a hearing that was held on March 28, 2012. On
September 10, 2012 an OWCP hearing representative affirmed the March 22, 2012 decision.
OWCP procedures indicate that payment of compensation not to exceed $3,500.00 may
be made for disfigurement of the face, head or neck which is likely to handicap the claimant in
securing or maintaining employment. The procedures further provide that the medical adviser
will be asked to review such claims and to evaluate the employee’s disfigurement. If the medical
adviser finds that maximum medical improvement has occurred, the medical adviser shall review
the photographs submitted along with the medical evidence of record. The concurrence of the
District Director or the Assistant District Director must be obtained.2
In the case at hand, Dr. Zimmerman, the medical adviser, indicated that he reviewed three
photographs in reaching his conclusion that appellant was not entitled to a disfigurement award.
2

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010); see
D.H., Docket No. 10-2095 (issued June 6, 2011).

2

These photographs, however, are not found in the imaged case record forwarded to the Board.
Hence the Board finds this case is not in posture for decision as the record before the Board is
incomplete and would not permit an informed adjudication of the case by the Board. The case
must therefore be remanded to OWCP to obtain the aforementioned three photographs and for
further reconstruction and assemblage deemed necessary, to be followed by a de novo decision
on the merits of appellant’s claim for a monetary award for facial disfigurement due to the
April 26, 2008 employment injury.
IT IS HEREBY ORDERED THAT the September 10, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: March 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. SENATE, OFFICE OF THE SERGEANT
AT ARMS, Washington, DC, Employer
__________________________________________

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Appearances:
Stephen Domenic Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-350
Issued: April 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 2, 2014 appellant, through counsel, filed a timely appeal from a June 5,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On August 31, 2012 appellant, then a 56-year-old printing reprographics specialist, filed
an occupational disease claim alleging that he sustained dilated nonischemic cardiomyopathy as
a result of strong chemical odors and occasional spills at the employing establishment. He
1

5 U.S.C. § 8101 et seq.

alleged that his work environment was poorly ventilated and that it worsened with the
installation of a new press machine in August 2006. Appellant first became aware of his
condition on August 31, 2006 and its relation to his federal employment on October 30, 2009.
He stopped work permanently on December 11, 2009.
In an undated narrative statement that accompanied the claim, appellant advised that he
worked at the employing establishment from 2002 until 2010. He noted that he worked in the
press room where he was in daily contact with chemicals and that there were numerous incidents
of chemical spills in the work area. Appellant further noted that the press room was in a
basement and that there were no windows or doors that could be opened to allow for proper
ventilation. He provided a list of the products that he came in contact with at work. Appellant
advised that he was very health conscious and had a complete work up of his heart in 1993 which
found that it was in good condition with no signs of heart disease. He advised that around
August 24, 2006 a nurse notified him that his blood pressure was normal, but his heart sounded
strange and that he should see a cardiologist. Appellant noted that on August 30, 2006 the
chemical odors were particularly strong because new equipment had recently been installed. He
advised that he became sick and vomited at work and later went to the emergency room.
Appellant’s emergency room nurse told him that he should have his heart evaluated. He then
underwent multiple tests which revealed nonischemic cardiomyopathy. Appellant’s children and
siblings were tested for the disease in order to find a hereditary link, but no one else had the
disease. While hospitalized the doctors found an arrhythmia and determined that appellant
needed an implantable cardiac defibrillator (ICD). Appellant advised that he never had a
medical condition of this sort before and was first diagnosed with cardiomyopathy in 2006.
In another undated statement, an unidentified supervisor confirmed that appellant worked
for the employing establishment from 2002 to 2010 and advised that, before working for the
employing establishment, appellant had over 30 years’ experience working in the printing
industry. The supervisor acknowledged that there were several spills, leaks, and broken pipes
during the last few years, that the employing establishment was located at the Postal Square
Building, and that appellant was present for “some of the significant water events and resulting
repairs. The supervisor noted that the work environment was ventilated to exceed Government
Services Administration (GSA) standards and that the work area always passed inspections by
the Office of Compliance. Standard printing industry chemicals were used and a list of the
products used was provided. The supervisor advised that protective gear was made available to
employees, but was not mandatory. Appellant’s job description was also submitted, which stated
that the hazards of the position included moving machinery, excessive noise, and exposure to
chemicals from inks, solvents, and paper dust. Also submitted were material safety data sheets
(MSDS) for several substances.
A variety of medical reports accompanied the claim. This included a September 8, 2006
report from Dr. Zayd Eldadah, Board-certified in internal medicine and cardiovascular disease,
who advised that appellant had noncongestive cardiomyopathy and ventricular tachycardia. He
noted that appellant was implanted with an ICD that day without incident. In an August 11,
2009 report, Dr. Manish Shah, Board-certified in internal medicine and cardiovascular disease,
advised that appellant underwent a radiofrequency ablation of an outflow tract tachycardia
emanating from his left coronary artery. In a December 15, 2009 report, Dr. Bruce Zinsmeister,
Board-certified in internal medicine and cardiovascular disease, advised that appellant was

2

diagnosed with cardiomyopathy with recurrent episodes of ventricular tachycardia. He stated
that he advised appellant to take a leave of absence from work in order to better maintain his
condition. Dr. Zinsmeister further advised that appellant could possibly be a candidate for a
cardiac transplant. In a November 18, 2009 report, Dr. Peter Boolukos advised that appellant
had an onset of shortness of breath with disorientation while sleeping. He noted that appellant
was diagnosed with cardiomyopathy in 2006 and had an ICD placement at that time.
Dr. Boolukos noted that appellant also had a prior history of mild hypertension. Appellant
submitted several status reports concerning his arrhythmias and defibrillator.
In a January 2, 2011 report, Dr. Lynese Lawson, an osteopath and family practitioner,
advised that she had treated appellant since November 7, 2009 for dilated cardiomyopathy,
which was diagnosed in 2006. She noted that appellant did not have a history of heart disease or
any significant past medical history. Dr. Lawson advised that cardiomyopathy can be either
acquired or inherited. She stated that appellant did not have any known family history of
cardiomyopathy. Dr. Lawson noted that appellant’s employment as a press operator exposed
him to a number of different chemicals including heavy metals which can become toxic and
worsen heart function. She advised that urine toxic metals tests and hair elements tests revealed
elevated levels of mercury, lead, aluminum, antimony, arsenic, cadmium, mercury, potassium,
vanadium, boron, and iodine. Dr. Lawson opined that appellant’s condition was the result of
exposure to chemicals or metals in his work environment. She advised that appellant should not
return to the work environment because it could possibly exacerbate and worsen his heart
disease.
In an August 17, 2012 report, Dr. Erika Feller, Board-certified in cardiovascular disease
and advanced heart failure and transplant cardiology, advised that she began treating appellant
nearly two years earlier. She stated that appellant was first diagnosed with dilated
cardiomyopathy in 2006, which was complicated by his frequent deleterious episodes of
ventricular tachycardia (VT). Dr. Feller noted that a defibrillator was implanted to treat his VT
with electric shock therapy. She also advised that appellant was given a number of tests which
revealed no evidence to suggest that his cardiomyopathy was secondary to ischemia, coronary
artery disease, tachycardia, thyroid disease, alcohol, substance abuse, noncompaction, infiltrative
diseases, right ventricular dysplasia, genetics, or myocarditis. Dr. Feller opined that after
researching the chemicals involved in the operation of a print press she found that many of the
chemicals were cardiotoxic. She stated that testing had not identified an etiology for appellant’s
cardiomyopathy, but it was entirely likely that his exposure to print press chemicals for many
years caused his cardiomyopathy. Dr. Feller stated that there was no definitive way to make that
diagnosis, but noted that she currently diagnosed cardiomyopathy due to toxic exposure.
By letter dated December 14, 2012, OWCP notified appellant that evidence was
insufficient to establish that notification of his injury was timely and advised him to submit a
questionnaire substantiating the factual element of his claim. In a letter of the same date,
OWCP asked the employing establishment to provide comments from a knowledgeable
supervisor and to provide all information relevant to appellant’s claim.
In a January 14, 2013 response, appellant advised of his work history and exposure to
chemicals. He reiterated that, although he was diagnosed in 2006, he did not become aware of
its relation to its employment until 2009. Appellant also advised that his primary care physician,

3

prior to being diagnosed with heart problems in 2006, had treated him for 15 years for conditions
such as mild hypertension, walking pneumonia, the flu, and colds. He stated that the medical
records from this physician were in storage and not readily available.
On June 14, 2013 OWCP forwarded the medical record and a statement of accepted facts,
to an OWCP medical adviser, Dr. Cynthia Crawford-Green, Board-certified in cardiovascular
disease and internal medicine.2 The statement of accepted facts advised that appellant’s job
responsibilities as a printing reprographics specialist included plate-making, press room, electric
printing, photocopying, book assembly, bindery, floor chart printer management, floor chart
mounting work, and mailing operations. It advised that appellant had a preexisting history of
noncongestive cardiomyopathy and ventricular tachycardia and a family history of sudden death,
congestive heart failure and coronary artery disease. In an August 1, 2013 report, Dr. CrawfordGreen opined that appellant’s cardiomyopathy was not caused or exacerbated by the fumes,
strong chemical odors and occasional spills in the pressroom. She noted that appellant had
preexisting hypertension which could have contributed to his condition and states that there were
no corroborating statements from any source that appellant was exposed to strong fumes on
August 30, 2006 or exposed to chronic fumes in his work environment. Dr. Crawford-Green
questioned the extent of appellant’s chemical exposure and also whether his condition only
began in 2006. She opined that he had cardiomyopathy for some time prior.
By decision dated September 25, 2013, OWCP denied appellant’s claim because
evidence was insufficient to establish that the diagnosed condition was causally related to the
established work-related events.
On April 11, 2014 appellant through his attorney requested reconsideration. Counsel
noted submitting additional documentation and asserted that the evidence supported that
appellant’s condition was work related.3
By decision dated June 5, 2014, OWCP denied modification of a September 25, 2013
decision as the medical evidence was insufficient to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to

2

OWCP advised that it was unable to send appellant for a second opinion examination because he was in the
hospital awaiting a heart transplant.
3

Counsel stated that a 32-page document accompanied the request. The record before the Board does not contain
this document. A two-page document regarding workplace solvent exposure did accompany the request.

4

the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (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 employment factors identified by the employee.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.7
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.8
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant submitted a January 2, 2011 report from Dr. Lawson and an August 17, 2012
report from Dr. Feller, which provide some support that his cardiac condition was caused or
aggravated by workplace chemical exposure. To further develop the matter, on June 14, 2013
OWCP forwarded the medical record and a statement of accepted facts, to an OWCP medical
adviser. The statement of accepted facts advised that appellant’s job responsibilities as a printing
reprographics specialist included plate-making, press room, electric printing, photocopying, book
assembly, bindery, floor chart printer management, floor chart mounting work, and mailing
operations. It advised that he had a preexisting history of noncongestive cardiomyopathy and
ventricular tachycardia and a family history of sudden death, congestive heart failure and
coronary artery disease. OWCP’s procedures state that “wherever possible, exposure data, job
descriptions or duties, and other records should be condensed to essential information and
incorporated into the body of the statement of accepted facts.”9 The statement of accepted facts
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

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

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 5.

8

James Mack, 43 ECAB 321 (1991).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.4
(September 2009).

5

did not fully detail appellant’s exposure to particular chemicals. In fact, no mention of any
chemicals are listed.
In her August 1, 2013 report, Dr. Crawford-Green opined that appellant’s
cardiomyopathy was not caused or exacerbated by the fumes, strong chemical odors and
occasional spills in the pressroom. She noted that appellant had preexisting hypertension which
could have contributed to his condition and states that there were no corroborating statements
from any source that appellant was exposed to strong fumes on August 30, 2006 or exposed to
chronic fumes in his work environment. Dr. Crawford-Green’s report, however, is not
sufficiently rationalized. She stated that there was no evidence that appellant had exposure to
chronic fumes during his employment, when the employing establishment and his job description
stated that there was some degree of chemical exposure at work. Dr. Crawford-Green also did
not address Dr. Lawson’s report which stated that appellant had elevated levels of certain toxins
in his urine and hair samples. She concluded that appellant had cardiomyopathy for some time
prior to 2006, but did not explain how this would rule out his condition being caused or
aggravated by his work environment, given the fact that he began working for the employing
establishment in 2002.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done.10 Once OWCP undertakes development of the record it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.11 As OWCP began
development of the medical evidence, regarding whether appellant’s condition was work related,
it had the obligation to assure that a proper evaluation was done.12
The case will be remanded to OWCP for further development of the factual and medical
evidence. It should obtain from the employing establishment the results of any industrial
hygiene tests taken during appellant’s period of employment, and obtain past and present listings
of all chemicals, irritants, and pathogenic agents in appellant’s work area and all available
information on concentration levels for such agents. Thereafter, OWCP shall prepare a new
statement of accepted facts and refer appellant to an appropriate Board-certified specialist for a
second opinion examination. The specialist shall provide a rationalized medical opinion
regarding whether appellant’s cardiac condition was caused or aggravated by factors of his
federal employment.13 Following this and any other further development deemed necessary, it
shall issue a de novo decision on appellant’s claim.

10

Richard Kendall, 43 ECAB 790 (1992).

11

Phillip L. Barnes, 55 ECAB 426, 441 (2004).

12

See Robert Kirby, 51 ECAB 474 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983).

13

If appellant is medically unable to attend an examination, OWCP shall provide the referral specialist with the
statement of accepted facts, relevant exposure data, and the medical record.

6

CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant
developed a heart condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2014 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this decision.
Issued: April 15, 2015
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF THE INTERIOR, LASSEN
VOLCANIC NATIONAL PARK, Mineral, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Brian L. Pocock, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2265
Issued: September 28, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 15, 2008 appellant, through his attorney, filed a timely appeal from a July 3,
2008 merit decision of an Office of Workers’ Compensation Programs’ hearing representative
finding that he received an overpayment of compensation and denying waiver of the recovery of
the overpayment. He also appeals an April 10, 2008 merit decision which affirmed the
termination of his compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant received an overpayment of $15,378.79 because he
was paid at an inaccurate pay rate for the period September 29, 1994 to October 2, 2004;
(2) whether the Office properly denied waiver of the recovery of the overpayment; and
(3) whether the Office properly terminated appellant’s monetary compensation benefits effective
February 2, 2007 on the grounds that he refused an offer of suitable work pursuant to 5 U.S.C.
§ 8106(c)(2). On appeal, appellant’s attorney contends that the Office failed to provide
information as to how the overpayment was calculated.

FACTUAL HISTORY
On September 29, 1994 appellant, then a 48-year-old seasonal motor vehicle operator,
filed a traumatic injury claim alleging that on that date he strained his lower back and skinned his
left jaw while in the performance of duty. On the back of the form, the employing establishment
noted that he worked 10-hour days Monday through Thursday. The Office accepted the claim
for left jaw contusion and low back strain, which was subsequently expanded to include
postconcussion syndrome, aggravation of preexisting migraines and suboccipital neuralgia.1
Appellant stopped work on September 29, 1994 and was placed on the periodic rolls for
temporary total disability by letter dated March 19, 2002. The Office based his compensation
upon a weekly pay rate of $420.63 and noted that with the 75 percent rate pay and cost-of-living
adjustments it increased his gross compensation to $365.75.2
On a January 23, 1995 wage-loss computation sheet, the Office noted appellant’s weekly
pay rate as $420.63 and paid him at the ¾ rate for the period October 2 to November 18, 1994.3
On April 10, 1995 the employing establishment submitted a notification of personnel
action which contained information on appellant’s pay rate which was a base pay of $13.86 per
hour.
In a letter dated September 20, 1995, the Office informed appellant that his pay rate was
calculated based upon his hourly rate for 10 hours per day at $13.86 per hour plus $7.22 per day
quarters allowance for a total daily pay rate of $145.82. It then multiplied the $145.82 by 150/52
to find a total weekly pay rate of $420.63.
On January 29, 2002 appellant elected to receive benefits under the Federal Employees’
Compensation Act.
On March 12, 2004 Dr. Stephen C. Zinsmeister, a second opinion Board-certified
psychiatrist and neurologist, diagnosed lumbar strain, concussion with postconcussion syndrome,
difficult concentrating, feeling loss of balance, aggravation of preexisting migraine headaches,
left jaw contusion and preexisting cervical spondylosis and lumbar degenerative disc disease,
which was not caused by the employment injury. A physical examination revealed a gait which
“is slow and wide-based, seeming somewhat unsteady, saying he can fall to either side” and mild
lumbar paraspinal, upper thigh and left upper buttock tenderness. Dr. Zinsmeister stated that
appellant’s current symptoms are likely permanent as the injury occurred approximately 10½
years ago and no improvement has been seen in the symptoms. He opined that appellant was

1

The employing establishment terminated appellant’s employment effective September 29, 1994.

2

The computer printout showing payment for the period September 30 to November 18, 1994 based upon a
weekly pay rate of $340.67 while a weekly pay rate of $420.63 was used to calculate his compensation for the
period November 19, 1994 to March 13, 1995 and April 26 to March 23, 2002. The record also contains appellant’s
pay stubs from July 9 to October 1, 1994 showing an hourly pay rate of $13.86 and a deduction of $72.18.
3

The Office noted that it deducted the amount he had been paid for the period September 29 to
November 3, 1994.

2

capable of performing sedentary work part time initially and then working up to eight hours a
day within four to six months.
On March 27, 2004 Dr. David B. Hagie, a treating osteopath, reported that appellant’s
“low back injury has degenerated over the years with a now quite significant spondylolisthesis
not present at the time of the initial injury.”
On April 26, 2004 Dr. Hagie reviewed Dr. Zinsmeister’s report and noted his
disagreement with the findings.
On June 9, 2004 the Office referred appellant for an impartial medical examination with
Dr. Mary Reif, a Board-certified neurologist, to resolve the conflict in the medical opinion
evidence between Dr. Hagie, a treating osteopath, who opined that appellant’s current condition
was employment related and he was totally disabled, and Dr. Zinsmeister, a second opinion
Board-certified psychiatrist and neurologist, who opined that appellant was capable of
performing sedentary work for eight hours a day.
On July 8, 2004 Dr. Reif, based upon a review of the medical evidence, statement of
accepted facts and physical examination, concluded that appellant was capable of working with
restrictions. She reported that from a work-related disability standpoint that appellant would
continue to have climbing and balancing problems, which she attributed to his concussion.
Dr. Reif opined that appellant had no neck limitations and that “[a]ny limitations on his lumbar
spine are not related to the industrial injury but related to the preexisting degenerative changes.”
She provided restrictions of very occasional lifting of not more than 50 pounds and limited
twisting, bending, pushing, twisting, pulling. In an attached work capacity evaluation form,
Dr. Reif indicated that appellant was capable of working with restrictions. These included sitting
up to six hours per day, two hours of walking per day, minimum bending, stooping and operating
a motor vehicle at work, less than 50 pounds of pushing or pulling, minimum squatting and
kneeling, no excessive climbing, a 15-minute break every four hours and lifting of up to 25
pounds.
An August 27, 2004 computer worksheet reflected that appellant was paid at the weekly
pay rate of $319.85 for the periods September 29, 1994 to September 15, 1999 and
September 16, 1999 to September 4, 2004.
In an October 13, 2004 daily rolls payment form, the Office noted that appellant was not
entitled to any supplement to his salary. It noted that appellant was a temporary employee who
was paid at $13.86 per hour. Using the 150-hour rule it calculated appellant’s weekly pay rate as
follows $13.86 x 8 x 150 divided by 52, resulting in a weekly pay rate of $319.85. The Office
noted that he had been paid $153,667.11 when he had only been entitled to a payment of
$138,288.32 resulting in an overpayment of $15,378.79.
On October 13, 2004 the employing establishment offered appellant a temporary position
of park guide for the period November 29, 2004 through March 4, 2005. The duty station was
Lassen Volcanic National Park and housing was offered at a biweekly cost of $126.00. The
duties of the position were providing visitor information, operating an adding machine, cash
register and other office equipment and selling merchandise. Physical duties required occasional

3

lifting of up to 25 pounds and carrying up to 25 pounds for up to 10 feet. It noted that the
position required limited bending, stooping, pushing, twisting and pulling and no ladder
climbing. Appellant was advised that he would be earning $10.19 per hour. He was given until
November 18, 2004 to accept or reject the offered position.
On October 22, 2004 the Office advised appellant that the offered position was suitable.
Appellant was notified that, if he failed to accept the position or demonstrate that the failure was
justified, his right to wage-loss compensation would be terminated pursuant to section 8106. He
was given 30 days from the date of this letter to respond.
On November 2, 2004 the Office received a September 8, 2004 report from Edwin
Pearson, Ph.D. and psychologist, who noted that appellant had been referred by his vocational
rehabilitation counselor to assist in developing a vocational plan. Dr. Pearson diagnosed
cognitive disorder, limited panic disorder and migraine headaches. He opined that he believed it
was unrealistic “to assume that this man can make a transition to competitive employment” due
to his vertigo/inner ear disorder, cognitive inefficiencies and chronic headaches. Dr. Pearson
reported that “[t]o a lesser extent, this individual’s functioning is going to be affected by his
ability to tolerate certain situations that he perceives to be claustrophobic in one way or another.”
On November 2, 2004 the Office requested Dr. Reif review Dr. Pearson’s September 8,
2004 report and asked whether it altered her opinion regarding appellant’s work restrictions and
work capability.
On November 8, 2004 appellant declined the offered position. He could not commute
225 miles one way every Saturday and Sunday particularly during winter storm season.
In a November 23, 2004 letter, the Office advised appellant that the offered position was
still found to be suitable work and remained available. It afforded him 15 days to accept the
position or incur the termination of his compensation benefits. The Office stated that no further
reasons for refusal would be considered.
In a letter dated December 2, 2004, the employing establishment informed the Office that
appellant was not entitled to a housing allowance which the Office erroneously included in his
compensation. It noted that housing was available and that rent was deducted directly from the
employee’s pay check. The employing establishment specified that his date-of-injury pay rate
was $13.86 per hour.
On December 2, 2004 Dr. Hagie reviewed Dr. Reif’s report and provided comments and
requested that a functional capacity evaluation and neuropsychiatric testing be performed.
In a December 2, 2004 report, Dr. Reif noted that she had reviewed Dr. Pearson’s
neuropsychological report and stated that she believed the testing was incomplete. She stated
that there was nothing in the report that altered her opinion that appellant was capable of
performing sedentary work.
On December 17, 2004 the Office received an undated letter from appellant explaining
why he refused the offered position. Appellant contended that physical restrictions were beyond
his capability and the 224 miles one way from home only allows him 24 hours at home per week.
4

Lastly, he contended that the cost of housing and fuel to get to and from the job on the weekends
was too expensive.
By decision dated December 27, 2004, the Office terminated appellant’s wage-loss
compensation as he had refused an offer of suitable work.
On December 5, 2005 appellant filed a request for reconsideration of the termination of
his benefits and submitted medical and factual evidence in support of his request.
By decision dated March 13, 2005, the Office vacated the December 27, 2004 decision
and reinstated his benefits retroactive to that date. In vacating the prior decision, it noted that
Dr. Reif’s opinion constituted the weight of the evidence as to his ability to work from a
neurological standpoint. However, Dr. Pearson’s report required additional development on the
issue of whether appellant was capable of working from a psychiatric standpoint. It was
recommended that appellant be referred for a second opinion evaluation with a Board-certified
psychiatrist.
In a March 13, 2006 letter, the Office explained the adjustment to appellant’s weekly pay
rate. It noted that appellant’s weekly pay rate had erroneously included housing quarter’s
allowance. Appellant was informed that his current pay rate was calculated as using the 150formula which is based on multiplying the hourly pay rate by the hours worked per day. The
Office then multiplied his hourly rate of $13.86 by eight hours per day to find a daily pay rate of
$110.88. The daily pay rate was then multiplied by 150 which resulted in a minimum annual pay
of $16,632.00. The Office then divided $16,632.00 by 52 to find a weekly pay rate of $319.85.
On May 4, 2006 Jack M. Davies, Psy.D. and Office referral psychologist, diagnosed
chronic pain disorder, white matter tract lesions secondary to ischemia and vasculitis and
passive-dependent and histrionic personality traits. He reported the neuropsychological
evaluation to be within normal limits. Dr. Davies stated that he could not evaluate physical
limitations, but concluded that from a psychological or neuropsychological standpoint appellant
was capable of working.
On June 12, 2006 the employing establishment reoffered appellant the position it had
previously offered on November 8, 2004 with a salary adjustment for 2006. The position was
temporary and offered housing at a biweekly cost of $126.00 so that appellant would be within
walking distance of his job. The position was at Lassen Volcanic National Park, where he had
been employed at the time of his injury and was based on restrictions noted by Dr. Reif.
Appellant was advised that he would be earning $10.82 per hour. The employing establishment
did not provide a date by which appellant was to accept or reject the position, but did note an
entrance date for the position of June 26, 2006.
In a July 25, 2006 letter, the Office advised appellant that the offered park guide position
was found suitable work within his medical restrictions. It afforded him 30 days in which to
either accept the position or provide good cause for refusal. The Office also advised appellant
that, under section 8106(c) of the Act, he would lose his entitlement to compensation if he
refused suitable work.

5

On August 18, 2006 appellant refused the offered position as being beyond his mental
and physical abilities. He noted that Dr. Pearson’s September 8, 2004 examination found that he
“could not be gainfully employed.”
In a November 16, 2006 letter, the Office advised appellant that the offered position was
still found to be suitable work and remained available. It afforded him 15 days to accept the
position or incur the termination of his compensation benefits. The Office stated that no further
reasons for refusal would be considered.
In a November 24, 2006 letter, appellant contended that he had not seen Dr. Davies’
report and that he was unable to perform the duties of the offered position. He also contended
that driving 225 miles one way was beyond his work restrictions. Appellant also states that
being asked to live away from home during the winter except for 24 hours a week is
unacceptable and the money offered by the position is financially unfeasible. Lastly, he contends
that Dr. Reif’s report is outdated and should not be used as a basis for determining his work
capability.
By decision dated February 2, 2007, the Office terminated appellant’s wage-loss benefits
effective that day on the grounds that he refused an offer of suitable work. It further found that
he did not provide good cause for refusing the position, which remained open and available to
him. The Office noted that appellant did not have to commute as arrangements for temporary
housing would be provided, which was the same arrangement appellant had before his injury on
September 29, 1994.
On September 6, 2007 the Office notified appellant of its preliminary determination that
he received an overpayment of compensation in the amount of $15,378.79 because he received
compensation at an inaccurate pay rate for the period September 29, 1994 to October 2, 2004. It
determined that it had erroneously included a housing allowance in calculating his pay rate for
the period September 29, 1994 to October 2, 2004. The Office indicated that appellant’s pay rate
without the housing allowance was $13.86 per hour. It noted that a biweekly housing allowance
of $72.18 had been included in appellant’s pay rate compensation. The Office calculated that
appellant received $153,667.11 in compensation, but should have been paid only $138,288.32
which resulted in an overpayment of $15,378.79. It found that appellant was without fault in the
creation of the overpayment and requested that he complete an overpayment recovery
questionnaire. The Office additionally advised appellant that, within 30 days of the letter, he
could request a telephone conference, a final decision based on the written evidence or a
prerecoupment hearing.
On September 28, 2007 appellant’s attorney requested a prerecoupment hearing. A
telephonic hearing was held on April 18, 2008 at which appellant was represented by counsel
and testified.
On January 15, 2008 appellant requested reconsideration and submitted evidence in
support of his request. The evidence consisted of a May 25, 2005 neuropsychological report by
Francis Gilbert, Ph.D., magnetic resonance imaging scans dated August 24, 2005 and
January 10, July 19 and December 7, 2007, a November 1, 2005 report by Dr. Kevin Sullivan,
and various reports from Dr. David Hagie, a treating osteopath.

6

By decision dated April 10, 2008, the Office denied modification of the February 20,
2007 decision.
By decision dated July 3, 2008, a hearing representative found that there was an
overpayment of $15,378.79. The hearing representative found that appellant was not entitled to
a housing allowance from September 29, 1994 to October 4, 2004 and, thus, received an
overpayment of $15,378.79. The hearing representative further determined that appellant was
not at fault in the creation of the overpayment. However, the hearing representative found that
he was not entitled to waiver of the recovery of the overpayment as he did not complete an
overpayment recovery questionnaire.4
LEGAL PRECEDENT -- ISSUE 1
The Act provides that monthly pay means the monthly pay at the time of injury, or the
time disability begins, or the time compensable disability recurs, if the recurrence begins more
than six months after the injured employee resumes regular full-time employment, whichever is
greater.5 Section 8114(d) of the Act provides:
Average annual earnings are determined as follows:
“(1) If the employee worked in the employment in which he was employed at the
time of his injury during substantially the whole year immediately preceding the
injury and the employment was in a position for which an annual rate of pay -(A) was fixed, the average annual earnings are the annual rate of pay; or
(B) was not fixed, the average annual earnings are the product obtained by
multiplying his daily wage for particular employment, or the average
thereof if the daily wage has fluctuated, by 300 if he was employed on the
basis of a 6-day workweek, 280 if employed on the basis of a 5½-day
week, and 260 if employed on the basis of a 5-day week.6
“(2) If the employee did not work in employment in which he was employed at
the time of his injury during substantially the whole year immediately preceding
the injury, but the position was one which would have afforded employment for
substantially a whole year, the average annual earnings are a sum equal to the
average annual earnings of an employee for the same class working substantially
the whole immediately preceding year in the same or similar employment by the
4

The Board notes that, following the July 3, 2008 decision, the Office received additional pay stub evidence from
1983 to 1992. On July 29, 2008 the Office received a July 25, 2008 and financial documentation. However, the
Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); J.T., 59 ECAB ___ (Docket No. 071898, issued January 7, 2008); G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
5

5 U.S.C. § 8101(4).

6

Id. at § 8114(d).

7

United States in the same or neighboring place as determined under paragraph
(1) of this subsection.”7
If sections 8114(d)(1) and (2) of the Act are not applicable, such as in cases where the
date-of-injury employment was seasonal work that would not have provided employment for
substantially the whole year preceding the injury, section 8114(d)(3) provides as follows:
“If either of the foregoing methods of determining the average annual earnings
cannot be applied reasonably and fairly, the average annual earnings are a sum
that reasonably represents the annual earning capacity of the injured employee in
the employment in which he was working at the time of injury having regard to
the previous earnings of the employee in [f]ederal employment and of other
employees of the United States in the same or most similar class working in the
same or most similar employment in the same or neighboring location, other
previous employment of the employee, or other relevant factors. However, the
average annual earnings may not be less than 150 times the average daily wage
the employee earned in the employment during the days employed within one
year immediately preceding his injury.”8
The Act, at section 8114(e), provides:
“The value of subsistence and quarters, and of any other form of remuneration in
kind for services if its value can be estimated in money, and premium pay under
section 5545(c)(1) of this title are included as part of pay, but account is not taken
of overtime pay; additional pay or allowance authorized outside the United States
because of differential in cost of living or other special circumstances; or bonus or
premium pay for extraordinary service including bonus or pay for particularly
hazardous service in time of war.”9
ANALYSIS -- ISSUE 1
The Office found an overpayment in this case on the grounds that appellant had received
compensation based on an incorrect pay rate. The initial pay rate used by the Office, as of the
date disability began July 29, 2003, was $420.63 per week. This was based on an hourly wage of
$13.86 working 40 hours per week10 plus a daily housing allowance of $7.22.
The Office found that appellant received an overpayment of compensation because he
received wage-loss compensation at an incorrect pay rate. It determined the correct pay rate
pursuant to section 8101(4) and section 8114 of the Act. Appellant’s pay rate for compensation
purposes is the rate of pay he was receiving as of the time of disability on September 29, 1994.
7

Id. at § 8114(d)(1), (2).

8

Id. at § 8114(d)(3).

9

Id. at § 8114(e).

10

This was based on four 10-hour workdays.

8

The evidence shows that appellant was a temporary employee who did not work
substantially the whole year immediately preceding the injury nor was employed in a position
that would have afforded employment for substantially a whole year.11 For these reasons,
section 8114(d)(3)12 applies to the computation of appellant’s pay rate.13 This section specifies
that an employee’s average annual earnings may not be less than 150 times the average daily
wage the employee earned in the employment during the days employed within one year
immediately preceding his injury.14 The two formulas used by the Office to calculate appellant’s
rate of pay are found at section 8114(d)(3). The Office used the statutory mathematical formula
incorporated at section 2.807.11(e) of the Office’s procedure manual, dealing with calculation of
initial payments for a claimant who is not a full-time worker.15 The Board finds that the Office
properly utilized section 8114(d)(3) of the Act.
The Office used appellant’s earnings and leave statements to find that he had a weekly
salary of $1,108.80 each pay period based upon a 40-hour week or an hourly wage of $13.86. It
compared this amount to the amount derived by multiplying the average daily wage by 150.
Using the 150-hour rule it calculated appellant’s weekly pay rate as follows $13.86 multiplied by
8 hours a day multiplied by the minimum 150 days which equaled $16,632.00 divided by 52,
resulting in a weekly pay rate of $319.85. The Office determined appellant’s actual hourly
earnings to be $14.14 ($23,080.39 annual earnings divided by 1632.75 hours worked), multiplied
by 8 hours a day multiplied by the minimum 150 days, equaled $16,963.08 a year or $326.21 a
week. The Board therefore finds that an overpayment in compensation was created.
On appeal, appellant contends that the Office erred in using 8 hours when it calculated his
pay rate using the 150-formula as he worked 10 hours per day. The Board finds, however, that
the Office properly used the 150 formula and 8 hours a day as this formula is based on a 40-hour
work week. While appellant is correct in stating that he worked 10 hours per day, the record
reveals that he worked four days a week or 40 hours per week. The 8 hours used in the 150-rule
is based on a 5-day workweek or 40 hours per week. As appellant worked a 40-hour week the
Office properly used 8 hours a day when calculating the 150-rule.
On appeal appellant contends that the $7.22 housing allowance which the Office included
in his pay rate in 1995 was correct. Thus, he argues that the Office erred in using this payment to
contribute to his overpayment. We disagree. The employing establishment clearly explained
why appellant was not at any time eligible for a housing allowance. It noted that it was simply
an error on this part. Section 8114(e) provides that subsistence and quarters and of any other
form of remuneration in kind for services shall be included in determining the pay rate. Unlike
11

Office procedures indicate the phrase substantially the whole year means 11 months. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.4(a) (April 2002).
12

5 U.S.C. § 8114(d)(3).

13

See H.S., 58 ECAB ___ (Docket No. 06-1774, issued May 10, 2007); Ricardo Hall, 49 ECAB 390 (1998).

14

See 5 U.S.C. § 8114(d)(2); see also L.C., 60 ECAB ___ (Docket No. 08-224, issued December 23, 2008).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter
2.807.11(e) (March 2004).

9

the claimant in Robert J. Lima,16 where the claimant received remuneration in kind for services
in the form of living quarters while working overseas, appellant was not required to stay in
housing provided by the employing establishment. In fact, he regularly paid rent for his housing.
There is no evidence in the record showing that it was a requirement for employees to stay at
housing provided by the employing establishment. Thus, the Office properly determined that the
cost of his housing should not be included in his compensation rate and that section 8114(e) was
not applicable.
The record demonstrates that, for the period September 29, 1994 through October 4,
2004, appellant received compensation in the amount of $153,667.11 based on the incorrect pay
rate of $420.63 per week, when he should have received compensation totaling $138,288.32
based on the correct pay rate of $319.85 per week, yielding an overpayment in compensation in
the amount of $15,378.79, as determined by the Office. The Board will affirm fact and amount
of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Act provides that, where an overpayment of compensation has
been made because of an error of fact or law, adjustment shall be made by decreasing later
payments to which an individual is entitled. The only exception to this requirement is a situation
which meets the tests set forth as follows in section 8129(b): “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 the Act or would be
against equity and good conscience.”17
Office regulations, at 20 C.F.R. § 10.438, state:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [the Office]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of the Act or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”18
ANALYSIS -- ISSUE 2
Although appellant was found without fault in creating the $15,378.79 overpayment, he
bears responsibility for providing the financial information necessary to support a request for
16

55 ECAB 546 (2004).

17

5 U.S.C. § 8129.

18

20 C.F.R. § 10.438.

10

waiver of the recovery. The Office requested that he provide financial information and submit
any request for waiver within 30 days of the preliminary overpayment determination. Appellant
did not respond within the 30-day time period. The Office noted that his failure to submit the
requested information would result in the denial of waiver. Appellant failed to respond within 30
days, as requested by the Office, under the implementing federal regulations, the Board finds that
the Office properly denied waiver of the recovery of the overpayment pursuant to 20 C.F.R.
§ 10.438(b).19
LEGAL PRECEDENT -- ISSUE 3
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation.20 Under section 8106(c)(2) of the Act, the Office may terminate
the compensation of a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for the employee.21 To justify termination, the Office
must show that the work offered was suitable and must inform appellant of the consequences of
refusal to accept such employment.22 Section 8106(c) will be narrowly construed as it serves as
a penalty provision, which may bar an employee’s entitlement to compensation based on a
refusal to accept a suitable offer of employment.23
Office regulations provide that, in determining what constitutes suitable work for a
particular disabled employee, the Office should consider the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.24 It is well
established that the Office must consider preexisting and subsequently acquired conditions in the
evaluation of suitability of an offered position.25 The issue of whether an employee has the
physical ability to perform a modified position offered by the employing establishment is
primarily a medical question that must be resolved by the medical evidence.26
In assessing medical evidence, the number of physicians supporting one position or
another is not controlling, the weight of such evidence is determined by its reliability, its
probative value and its convincing quality. The factors that comprise the evaluation of medical
19

Id. at § 10.438(b) provides that failure to submit requested information within 30 days shall result in the denial
of waiver of an overpayment. See R.W. (A.T.), 59 ECAB ___ (Docket No. 07-1845, issued December 7, 2007);
Madelyn Y. Grant, 57 ECAB 533 (2006).
20

A.W., 59 ECAB ___(Docket No. 08-306, issued July 1, 2008).

21

5 U.S.C. § 8106(c)(2); see also Mary E. Woodard, 57 ECAB 211 (2005); Geraldine Foster, 54 ECAB
435 (2003).
22

T.S., 59 ECAB ___ (Docket No. 07-1686, issued April 24, 2008); Ronald M. Jones, 52 ECAB 190 (2000).

23

Richard P. Cortes, 56 ECAB 200 (2004); Joan F. Burke, 54 ECAB 406 (2003).

24

20 C.F.R. § 10.500(b).

25

Richard P. Cortes, supra note 4.

26

Id.; Bryant F. Blackmon, 56 ECAB 752 (2005).

11

evidence include the opportunity for and the thoroughness of physical examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of
analysis manifested and the medical rationale expressed in support of the physician’s opinion.27
Office procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer, medical evidence of inability to do the work or travel to the job or the
claimant found other work which fairly and reasonably represents his or her earning capacity (in
which case compensation would be adjusted or terminated based on actual earnings).28
Furthermore, if medical reports document a condition which has arisen since the compensable
injury and the condition disables the employee, the job will be considered unsuitable.29
The Office’s procedures states that, to be valid, an offer of light-duty must be in writing
and must include the following information: (1) a description of the duties to be performed;
(2) the specific physical requirements of the position and any special demands of the workload or
unusual working conditions; (3) the organizational and geographical location of the job; (4) the
date on which the job will first be available; and (5) the date by which a response to the job offer
is required.30 The employer must make any job offer in writing.
ANALYSIS -- ISSUE 3
On June 12, 2006 the employing establishment reoffered appellant the position it had
previously offered on November 8, 2004 based upon a July 8, 2004 report by Dr. Reif, the
impartial medical examiner.31 On July 25, 2006 the Office informed appellant that the temporary
job offered by the employing establishment constituted suitable work. It found that the position
was commensurate with the medical restrictions set forth in the July 8, 2004 report of Dr. Reif.
On February 2, 2007 the Office terminated his wage-loss compensation effective that date based
upon his refusal of a suitable job offer. The Board finds that the Office improperly relied on
Dr. Reif’s opinion when determining that the position offered by the employing establishment
constituted suitable employment.
Dr. Reif’s July 9, 2004 report is stale with regard to the modified job offer extended to
appellant on June 8, 2006. The Board has recognized the importance of medical evidence being
contemporaneous with a job offer in order to ensure that a claimant is medically capable of
returning to work.32 Although Dr. Reif performed an impartial medical examination in 2004, she
27

See Connie Johns, 44 ECAB 560 (1993).

28

Les Rich, 54 ECAB 290 (2003).

29

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(b)(4) (July 1997).
30

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4 (December 1993).
31

The Board notes that the June 12, 2006 offer did not identify the term of the offered position. At the time
appellant was injured in 1994 he was a seasonal employee. In the November 2004 job offer, the employing
establishment did not identify the term of the appointment for the temporary position.
32

See generally Eileen R. Kates, 46 ECAB 573 (1995).

12

examined appellant some 23 months prior to the job offer. In similar cases, the Board held that
medical opinions that were nearly two years old were not reasonably current.33 The Office also
notes that appellant’s record demonstrated that he had a history of medical conditions, including
migraine headaches, suboccipital neuralgia and degenerative disc disease that were likely to
deteriorate over time. Because of the likelihood that his condition had changed since July 2004,
the Office did not reasonably rely on Dr. Reif’s reports to determine appellant’s current physical
limitations in July 2006. The Board finds that the medical evaluation relied on by the Office was
not reasonably current.
The Board finds that the Office did not establish the suitability of the offered position
because it relied on Dr. Reif’s opinion which was not reasonably current.
CONCLUSION
The Board finds that appellant received an overpayment of $15,378.79 because he was
paid at an inaccurate pay rate for the period September 29, 1994 to October 2, 2004. The Board
further finds that the Office properly denied waiver of recovery of the overpayment of
compensation. Lastly, the Board finds that the Office improperly terminated appellant’s
monetary compensation benefits effective February 2, 2007 on the grounds that he refused an
offer of suitable work under 5 U.S.C. § 8106(c).

33

See M.A., 59 ECAB ___ (Docket No. 07-349, issued July 10, 2008) (the Board stated that the medical evidence
upon for a wage-earning capacity determination must provide a detailed description of the claimant’s condition and
must be based on a reasonably current medical evaluation); Keith Hanselman, 42 ECAB 680 (1991) (two-year-old
medical report and year-old work restriction evaluation form were not reasonably current for wage-earning capacity
determination); Ellen G. Trimmer, 32 ECAB 1878 (1981) (two-year old work tolerance limitation report was
outdated).

13

ORDER
IT IS HEREBY ORDERED THAT the July 3, 2008 decision of the Office of Workers’
Compensation Programs’ hearing representative is affirmed. The Office decision dated April 10,
2008 is reversed.
Issued: September 28, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14