United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
St. Louis, MO, Employer
__________________________________________

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Appearances:
Dale M. Weppner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-2053
Issued: August 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 14, 2011 appellant, through her attorney, filed a timely appeal from a
March 15, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying authorization for surgery. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP abused its discretion by denying authorization for cervical
surgery, a cervical collar and a bone stimulator.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant’s attorney contends that OWCP’s decision is erroneous and failed to
take into account the medical evidence of disc pathology at the surgical levels, which was
attributed to the accepted employment injury.
FACTUAL HISTORY
On June 3, 2002 appellant, then a 29-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on May 12, 2002 she sustained a neck strain after a patient kicked her in the
chin at work. OWCP accepted the claim for cervical neck strain. Appellant received
compensation for wage loss from October 21, 2002 to January 9, 2003 and returned to a lightduty position.
A May 12, 2002 magnetic resonance imaging (MRI) scan of the cervical spine showed
slightly reduced disc space at C4-5.
A July 15, 2002 MRI scan of the cervical spine revealed degenerative disc disease and
cervical spondylosis. On axial images at C3-4 and C5-6 there was mild disc bulge without
herniation or canal stenosis. At C4-5 there was a moderate disc bulge with posterior osteophytes
but not cord compression or canal stenosis.
In a November 25, 2002 report, Dr. John P. Metzler, a Board-certified physical medicine
and rehabilitation physician, diagnosed C4-5 central disc protrusion/herniation and advised
appellant to continue with her light-duty work. He reported discussing the possibility of a
referral for surgical evaluation.
On May 23, 2003 Dr. Metzler reported that appellant was pregnant and if she had
persistent symptoms beyond that time, he would consider evaluation for further injections versus
surgical referral.
In a June 9, 2003 report, Dr. Metzler reiterated his diagnosis of C4-5 disc protrusion and
indicated that appellant had been experiencing increased symptoms in her neck. He opined that
her symptoms were directly related to her employment injury and in no way related to her
pregnancy. Dr. Metzler stated that, as appellant was pregnant, she was not a candidate for a
surgical procedure, but would be reevaluated post pregnancy if physical therapy was not
successful.
On April 9, 2004 Dr. Metzler diagnosed history of a C4-5 disc protrusion and stated that
he had not seen appellant since May 2003. Appellant reported neck pain that radiated down into
her right shoulder and into her right arm. Dr. Metzler recommended an updated MRI scan and
referred her for evaluation for surgical intervention.
Appellant submitted an April 28, 2005 x-ray of the cervical spine which revealed loss of
cervical lordosis in the presence of degenerative disc disease at C4-5 with hypertrophic spurring
and narrowing of the right neural foramen at C4-5.
In a June 7, 2006 report, Dr. Robert P. Poetz, an osteopath Board-certified in family
medicine, diagnosed preexisting cervical degenerative disc disease and cervical strain with
2

possible C4-5 and C5-6 disc protrusion and exacerbation of cervical degenerative disc disease on
May 12, 2002. He opined that appellant’s prognosis was guarded due to the length of time
elapsed since the injury and the continuance of pain in all areas of symptomology. Dr. Poetz
recommended surgical intervention if indicated.
In an April 19, 2010 report, Dr. R. Peter Mirkin, a Board-certified orthopedic surgeon,
reviewed appellant’s medical records and conducted a physical examination. Appellant’s range
of motion of her cervical spine was markedly limited and she had a positive Spurling sign.
X-rays revealed spondylitic changes most severe at C4-5 and C5-6. Dr. Mirkin diagnosed
cervical spondylosis and indicated that she first developed symptomatology when she was kicked
in the face at work. He recommended a new MRI scan and indicated that she may be a candidate
for further intervention as she had had symptoms for many years.
An April 26, 2010 MRI scan of the cervical spine revealed C3-4 and C4-5 disc bulging
without spinal canal stenosis, C5-6 central disc protrusion with mild spinal canal stenosis and
moderate left neural foraminal narrowing and C6-7 minimal disc bulge.
On April 28, 2010 Dr. Mirkin indicated that appellant’s MRI scan showed severe
spondylosis with stenosis and foraminal narrowing at C5-6. She had less severe disease at other
levels, most notably C4-5. Dr. Mirkin opined that appellant had to consider living with the
condition or having a two-level decompression, instrumentation and fusion at C4-5-6.
In a June 8, 2010 report, Dr. Mirkin reviewed appellant’s diagnostic studies and opined
that her condition of cervical radiculopathy was causally related to the May 12, 2002
employment injury.
In a July 28, 2010 letter appellant, through her attorney, requested authorization of
cervical spinal surgery and utilization of a spinal stimulator. She stated that she had not received
medical treatment for the period May 3, 2006 through April 18, 2010 and had lived with her
condition hoping not to need surgery, but decided to proceed with treatment after consulting with
Dr. Mirkin.
By letter dated August 19, 2010, OWCP referred the case to an OWCP medical adviser to
review appellant’s request for cervical spinal surgery and spinal stimulator.
By report dated August 20, 2010, an OWCP medical adviser reviewed the medical
evidence and opined that cervical surgery, a cervical collar and a bone stimulator were not
necessitated by the employment injury. He noted that appellant was free of neck pain based on
physical therapy reports of July 22 and 29, 2002, that following a July 15, 2002 MRI scan
appellant underwent pain management procedures in 2002 and 2003 which ceased in 2004 and
that it was not until April 19, 2010 that she had a “markedly positive Spurling sign” resulting
from a very brief examination by Dr. Mirkin. The medical adviser went on to say that the MRI
scan showed cervical degenerative changes incidental to but did not correlate with appellant’s
symptoms at that time. According to the available documents, the medical adviser further noted
that appellant did not receive any further treatment until 2010.
By decision dated September 24, 2010, OWCP denied authorization for a cervical collar,
a bone stimulator and two-level decompression, instrumentation and fusion at C4-5-6 levels. It
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noted that her case was accepted only for cervical strain and found that the medical evidence of
record was not sufficient to establish that her current cervical condition was causally related to
the May 12, 2002 employment injury.
On October 13, 2010 appellant, through her attorney, requested an oral hearing before an
OWCP hearing representative. She submitted an October 20, 2010 report by Dr. Mirkin who
opined that there was a causal connection between the May 12, 2002 employment injury and
appellant’s current condition.
Appellant indicated that she developed significant
symptomatology on that date and had persisted to the present. She also indicated that the
symptoms did improve for a short period of time and there was a period when she was out for
pregnancy and her treatment stopped before her neck pain recurred. Dr. Mirkin explained that
the radiographs he reviewed indicated the pathology that would cause appellant’s
symptomatology. He opined that her symptomatology was due to the spondylosis that was
directly aggravated by the employment injury and the fact that she had no medical treatment for
several years had no relationship to causal relationship.
A hearing was held on January 19, 2011 before an OWCP hearing representative.
Appellant provided testimony and the hearing representative allotted 30 days for the submission
of additional evidence.
Subsequently, appellant submitted a narrative statement. In a January 27, 2011 report,
Dr. Mirkin opined that the indication for surgery was cervical spondylosis which was noted on
the x-rays. He reiterated his opinion that there was a significant aggravation of appellant’s
underlying disc disease on May 12, 2002 after significant trauma to her cervical spine.
Dr. Mirkin stated that he would agree that she did have some preexisting degenerative disc
disease, but it was not until the employment injury when she was struck in the face that she
became symptomatic. He noted that appellant acknowledged that her symptoms improved for a
short period of time but they recurred and became worse over time.
By decision dated March 15, 2011, an OWCP hearing representative affirmed the
September 24, 2010 decision denying the requested cervical surgery.
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.2 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.3 OWCP has administrative discretion in choosing the means to

2

5 U.S.C. § 8103(a).

3

See Dale E. Jones, 48 ECAB 648, 649 (1997).

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achieve this goal and the only limitation on its authority is that of reasonableness.4 Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.5
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.6 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.7 Therefore, in order to prove that
the surgical procedure is warranted, appellant must submit evidence to show that the procedure
was for a condition causally related to the employment injury and that the surgery was medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.8
ANALYSIS
OWCP accepted that appellant sustained cervical neck strain as a result of a May 12,
2002 employment injury. In a decision dated September 24, 2010, it denied authorization for a
cervical collar, a bone stimulator and two-level decompression, instrumentation and fusion at
C4-5-6 levels. By decision dated March 15, 2011, an OWCP hearing representative affirmed the
September 24, 2010 decision. The Board finds that OWCP did not abuse its discretion by
denying authorization for cervical surgery, a cervical collar and a bone stimulator.
Upon physical examination on April 19, 2010, Dr. Mirkin found markedly limited range
of motion of the cervical spine was and a positive Spurling sign. X-rays revealed spondylitic
changes most severe at C4-5 and C5-6. Dr. Mirkin diagnosed cervical spondylosis and stated
that appellant first developed symptomatology when she was kicked in the face at work. On
April 28, 2010 Dr. Mirkin indicated that appellant’s MRI scan showed severe spondylosis with
stenosis and foraminal narrowing at C5-6. Appellant had less severe disease at other levels, most
notably C4-5. Dr. Mirkin opined that she had to consider living with her condition or having a
two-level decompression, instrumentation and fusion at C4-5-6. In a June 8, 2010 report, he
reviewed appellant’s diagnostic studies and opined that her condition of cervical radiculopathy
was causally related to the May 12, 2002 employment injury. On August 20, 2010 an OWCP
medical adviser reviewed appellant’s medical history and found that cervical surgery, a cervical
collar and a bone stimulator were not necessitated by the employment injury. He explained that
all pain management treatments ceased in 2004, that appellant was not treated again for her
4

See Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
5

See Minnie B. Lewis, 53 ECAB 606 (2002).

6

See Kennett O. Collins, Jr., 55 ECAB 648 (2004); Debra S. King, 44 ECAB 203, 209 (1992).

7

Id.; see also M.B., 58 ECAB 588 (2007); Bertha L. Arnold, 38 ECAB 282 (1986).

8

See R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331, 333 (2000).

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cervical condition until April 19, 2010 when the positive Spurling sign was noted. The medical
adviser stated that the degenerative changes found in the MRI scan of July 2002 did not correlate
with appellant’s symptoms at the time. On October 20, 2010 and January 27, 2011 Dr. Mirkin
disagreed with the medical adviser and reiterated his prior opinion that there was a significant
aggravation of appellant’s underlying disc disease on May 12, 2002 after significant trauma to
her cervical spine. The Board notes that the mere fact that appellant’s preexisting degenerative
disc disease became symptomatic following the May 12, 2002 employment injury, does not in
and of itself establish a causal connection. The reports of Dr. Mirkin are not well rationalized as
to how the accepted cervical strain aggravated or contributed to her cervical degenerative
disease. He does not adequately address the gaps in medical treatment of record or explain how
the mechanism of injury caused or aggravated the preexisting degenerative disease thereby
necessitating surgery. The Board finds that his reports are speculative on the issue of causal
relationship between the employment injury and the need for further medical treatment.
Appellant also submitted reports by Dr. Metzler and Dr. Poetz which date back to 2002
and 2006. As they are not relevant to appellant’s medical status in 2010 when Dr. Mirkin
recommended surgical intervention, the Board finds that they are not sufficient to support the
need for surgery.
The Board finds that, based on the medical adviser’s report, OWCP did not abuse its
discretion when it denied authorization for cervical surgery, a cervical collar and a bone
stimulator.
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 by denying authorization for
cervical surgery, a cervical collar and a bone stimulator.

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ORDER
IT IS HEREBY ORDERED THAT the March 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2012
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-545
Issued: May 17, 2013

Case Submitted on the Record

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

JURISDICTION
On January 7, 2013 appellant, through her attorney, filed a timely appeal of a
September 26, 2012 Office of Workers’ Compensation Programs’ (OWCP) merit decision
terminating her compensation benefits. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective April 13, 2012 due to her accepted condition of
carpal tunnel syndrome.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 9, 2008 appellant, then a 51-year-old mail handler filed an occupational
disease claim alleging that she developed peripheral nerve damage from constant movement of
her limbs and strain to her back. On March 11, 2009 OWCP accepted her claim for bilateral
carpal tunnel syndrome.
Appellant’s attending physician, Dr. Allen S. Glushakow, a Board-certified orthopedic
surgeon, completed a note on October 5, 2010 and found that appellant had reduced grip strength
on the left with positive Tinel’s sign and Phalen’s test. He diagnosed left median neuritis,
lumbosacral radiculitis and peripheral polyneuropathy. Dr. Glushakow recommended surgery.
Appellant underwent left carpal tunnel surgery in April 2011.
Appellant filed a claim for recurrence of disability on June 5, 2011 noting that she did not
return to work after November 10, 2008 and that she sustained a recurrence on April 15, 2011.
OWCP accepted this claim on June 15, 2011.
Dr. Glushakow completed a work capacity evaluation on June 29, 2011 which indicated
that appellant could not work. He completed a similar form report on June 30, 2011 and
indicated that she could work eight hours a day with restrictions. Dr. Glushakow listed
appellant’s restrictions as no operating a motor vehicle, no repetitive movements of the left wrist
and no more than three hours of climbing. He indicated that she could lift, push and pull up to
10 pounds.
In a report dated June 30, 2011, Dr. Nazar H. Haidri, a Board-certified neurologist, found
decreased grip strength in both hands and decreased pinprick in the medial distribution of both
hands. He diagnosed bilateral carpal tunnel syndrome.
OWCP referred appellant for a second opinion examination with Dr. Kenneth Heist, a
Board-certified orthopedic surgeon, on September 15, 2011. In a report dated October 12, 2011,
Dr. Heist listed his findings as normal grip strength, full range of motion of the hands and no
focal atrophy. He found that Phalen’s test was negative bilaterally as was Tinel’s sign. Dr. Heist
diagnosed postoperative decompression of the left carpal tunnel and peripheral polyneuropathy
of the upper extremities secondary to diabetes mellitus. He found no signs of carpal tunnel
syndrome. Dr. Heist noted that appellant had temperature changes and hypersensitivity to touch
of both forearms and hands which he attributed to her diabetic condition and not her
employment. He opined that she could return to her full-duty date-of-injury position with no
further treatment necessary.
In a letter dated November 3, 2011, OWCP proposed to terminate appellant’s
compensation and wage-loss benefits based on Dr. Heist’s report. It allowed her 30 days to
respond. Counsel responded on November 9, 2011 and objected to Dr. Heist’s report on the
grounds that he did not discuss diagnostic testing, did not discuss whether appellant’s peripheral
neuropathy was aggravated by her work duties and did not offer sufficient medical reasoning in
support of his report.

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In a note dated November 3, 2011, Dr. Glushakow found that appellant’s left hand
examination revealed negative Phalen’s test and Tinel’s signs. He found that right hand was
within normal limits and diagnosed bilateral carpal tunnel syndrome.
In a letter dated December 20, 2011, OWCP stated that there was a conflict between
Drs. Heist and Glushakow regarding the extent of appellant’s disability. On January 4, 2012 it
referred appellant for an impartial medical examination with Dr. Ian Fries, a Board-certified
orthopedic surgeon.
Dr. Glushakow completed a note on January 19, 2012 and found decreased grip strength
bilaterally with a positive Phalen’s test in the right hand. He diagnosed bilateral carpal tunnel
syndrome peripheral polyneuropathy, cervical radiculitis and lumbosacral strain with radiculitis
as well as diabetes mellitus. Dr. Glushakow opined that appellant could not perform the duties
of her date-of-injury position and found signs of right carpal tunnel syndrome. He stated that he
disagreed with Dr. Heist’s report.
Appellant underwent additional diagnostic testing including nerve conduction and
electromyogram on February 16, 2012. These studies were normal with no indication of
neuropathy including carpal tunnel syndrome, ulnar neuropathy, cervical radiculopathy or
diabetic polyneuropathy.
In a report dated March 26, 2012, Dr. Fries provided appellant’s history of injury and
medical treatment. Appellant reported that surgery made her left hand worse, resulting in palmar
pain along the incision with repetitive use. Dr. Fries recommended diagnostic studies. After
reviewing the February 16, 2012 tests, on March 21, 2012, he reexamined appellant and found
that the diagnostic studies failed to identify objective electrical evidence of neuromuscular
pathology with no findings of carpal tunnel syndrome either on the left or right. Dr. Fries found
mild dysesthesias from the mid-wrist to mid-palmar area on the left with no swelling. He noted
appellant’s ganglion over the dorsal radial left wrist. Dr. Fries found local tenderness when
pressure was applied directly over the carpal tunnels bilaterally without pain radiation or
paresthesias. He reported 65 degrees of volar wrist flexion and 70 degrees of dorsiflexion
bilaterally. Dr. Fries described collapsing weakness in all muscles tested in the upper extremities
but no fasciculations or atrophies. He found two-point testing of sensory discrimination was
greater than 10 millimeters over all fingers, but that appellant could handle coins normally.
Dr. Fries diagnosed diabetes mellitus, bilateral carpal tunnel syndromes, left wrist dorsal
ganglion, possible diabetic peripheral neuropathy and chronic low back pain.
Dr. Fries stated that appellant did not have objective findings of bilateral carpal tunnel
syndrome other than her left palmar surgical scar and that objective electrodiagnostic testing did
not confirm a residual neuromuscular pathology. He further stated that she had nonphysiological
findings including inconsistently claimed sensory loss over all 10 fingers, inappropriate
responses to sham testing, no muscle atrophy and full weight bearing on her upper extremities.
Dr. Fries concluded that appellant’s carpal tunnel syndromes had objectively resolved and that
any residual subjective symptoms were clouded by behavioral complaints and nonphysiological
muscle and sensory testing. He opined that she did not require further treatment for bilateral
carpal tunnel syndrome and was capable of resuming her date-of-injury position with regards to
the accepted condition of bilateral carpal tunnel syndrome.

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By decision dated April 13, 2012, OWCP terminated appellant’s medical and wage-loss
compensation benefits effective April 13, 2012 based on Dr. Fries’ reports and review of
diagnostic studies.
Dr. Glushakow completed notes on January 23 and March 27, 2012 and found reduced
grip strength on the right with positive Tinel’ signs and Phalen’s tests on the right. He diagnosed
bilateral carpal tunnel syndrome and right median neuritis.
Counsel requested an oral hearing before an OWCP hearing representative on
April 19, 2012. In a note dated June 16, 2012, Dr. Haidri found positive Tinel’s sign bilaterally,
decreased grip strength on the left and decreased pinprick in the median distribution of both
hands. He completed an electromyography (EMG) on June 16, 2012 and found the test
demonstrated bilateral carpal tunnel syndrome and sensory motor polyneuropathy. Counsel
appeared at the oral hearing on July 11, 2012 and argued that Dr. Haidri’s report created an
additional conflict with Dr. Fries.
By decision dated September 26, 2012, OWCP’s hearing representative found that
OWCP met its burden of proof to terminate appellant’s compensation benefits based on
Dr. Fries’ detailed and well-reasoned report.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.2 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.3 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.4 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.5
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, 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 and resolve the conflict of medical evidence.6 This is called a referee

2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

Id.

4

Furman G. Peake, 41 ECAB 361, 364 (1990).

5

Id.

6

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

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examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.7
In situations where there are 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 on a proper
factual background, must be given special weight.8
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome on
March 11, 2009. Appellant underwent a left carpal tunnel release in April 2011. Her attending
physicians, Drs. Glushakow and Haidri continued to support her disability for work and her need
for additional medical treatment due to her accepted condition. OWCP referred appellant for a
second opinion evaluation with Dr. Heist, who opined that she had no disability or medical
residuals due to her accepted bilateral carpal tunnel syndrome. The Board finds that there was a
conflict of medical opinion between appellant’s physician and OWCP’s physician regarding both
appellant’s ability to work and her need for further treatment due to bilateral carpal tunnel
syndrome. To resolve this conflict, OWCP properly referred appellant to Dr. Fries to determine
the extent of her disability and medical residuals, pursuant to 5 U.S.C. § 8123(a).
In his March 26, 2012 report, Dr. Fries reviewed the statement of accepted facts. He
requested and reviewed additional diagnostic studies finding no objective electrical evidence of
carpal tunnel syndrome in either extremity. On physical examination, Dr. Fries found collapsing
weakness in all muscles tested in the upper extremities but no atrophy. He noted that appellant
reported two-point testing of sensory discrimination was greater than 10 millimeters over all
fingers, but that she could handle coins normally. Dr. Fries concluded that she did not have
objective findings of bilateral carpal tunnel syndrome on examination other than her left palmar
surgical scar and that objective electrodiagnostic testing did not confirm a residual
neuromuscular pathology. He further found that appellant had nonphysiological findings and no
muscle atrophy. Dr. Fries opined that her accepted bilateral carpal tunnel syndrome had resolved
and that she did not require further treatment for the accepted condition. He concluded that
appellant was capable of resuming her date-of-injury position.
The Board finds that Dr. Fries’ report was based on a proper factual background and
provided detailed findings on electrodiagnostic testing and physical examination. Dr. Fries
based his opinion that appellant had no residuals or disability due to her accepted bilateral carpal
tunnel syndrome on her conflicting responses to testing and lack of objective findings. As his
report was supported by medical findings and reasoning, the Board finds that his report is
entitled to the special weight of the medical evidence as an impartial medical specialist and met
OWCP’s burden of proof to terminate appellant’s compensation benefits.

7

R.C., 58 ECAB 238 (2006).

8

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

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Appellant submitted a report from Dr. Haidri dated June 16, 2012, finding positive
Tinel’s sign bilaterally, decreased grip strength on the left and decreased pinprick in the median
distribution of both hands. Dr. Haidri completed an EMG on that date and found bilateral carpal
tunnel syndrome and sensory motor polyneuropathy. He did not address the inconsistent
findings reported by Dr. Fries and did not offer any reasoning in support of his opinion that
appellant continued to experience residuals of her accepted condition. Furthermore, as
Dr. Haidri was on one side of the conflict that Dr. Fries resolved, the additional report from
Dr. Haidri is insufficient to overcome the weight accorded Dr. Fries’ report as the impartial
medical specialist or to create a new conflict with it.9
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 met its burden of proof to terminate appellant’s
compensation and medical benefits based on the detailed and well-reasoned report of Dr. Fries,
the impartial medical specialist.

9

Dorothy Sidwell, 41 ECAB 857, 874 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the September 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, SHARED SERVICE
CENTER, Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2376
Issued: June 23, 2011

Case Submitted on the Record

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

JURISDICTION
On September 26, 2010 appellant filed a timely appeal from the September 23, 2010
merit decision of the Office of Workers’ Compensation Programs (OWCP) concerning
entitlement to schedule award compensation. Pursuant to the Federal Employees’ Compensation
Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant has more than a 10 percent permanent impairment of his
left leg, for which he received a schedule award.
FACTUAL HISTORY
In a prior appeal, the Board issued a decision on February 5, 2010 setting aside an
April 22, 2009 OWCP decision and remanding the case to OWCP for further development of the
1

5 U.S.C. §§ 8101-8193.

medical evidence regarding appellant’s entitlement to schedule award compensation.2 The
Board found that there was an outstanding conflict in the medical opinion regarding the extent of
appellant’s left leg impairment between Dr. Nicholas Diamond, an attending osteopath and
Dr. Berman, the referral physician. In his February 12, 2009 report, Dr. Diamond determined
that, under the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001), appellant had a 30 percent impairment of his left leg due
to motor strength deficits and pain. In contrast, he found, in his April 12, 2009 report, that
appellant only had a 10 percent permanent impairment of his left leg under the fifth edition of the
A.M.A., Guides. Dr. Diamond explained his disagreement with Dr. Diamond’s impairment
rating methods and found that appellant was entitled to a 10 percent impairment rating of his left
leg due to his partial medial and lateral meniscectomies.
The Board remanded the case to OWCP for referral of appellant and the case record to an
impartial medical specialist in order to resolve the conflict in the medical opinion between
Dr. Diamond and Dr. Berman regarding the extent of appellant’s left leg impairment. After such
further development as it deemed necessary, OWCP was directed to issue an appropriate decision
regarding appellant’s entitlement to schedule award compensation. The facts and circumstances of
the case up to that point are set forth in the Board’s prior decision and are incorporated herein by
reference.
On remand to OWCP, appellant was referred to Dr. Sanford H. Davne, a Board-certified
orthopedic surgeon, for an impartial medical examination and an opinion on the extent of his left
leg impairment.
In an August 16, 2010 report, Dr. Davne discussed appellant’s medical history noting that
he reported having constant pain in his left knee with popping, snapping and shifting of the joint.
He indicated that, upon physical examination of the left knee, appellant had an obvious varus
deformity and restricted motion of 0 to 100 degrees. There was tenderness along the medial and
lateral joint lines and also along the patellar tendon and medial proximal tibial plateau. Appellant
did not exhibit swelling or effusion of the left knee, but there was pain elicited with any movement
of the knee. Dr. Davne stated that there was no weakness in appellant’s quadriceps with knee
extension or hamstrings with flexion and there was no atrophy noted of his thighs as they both
measured 44 centimeters in circumference at 10 centimeters above the superior pole of the patella.
There was a slight difference in the circumference of the left calf when measured 10 centimeters
below the anterior tibial tubercle (the left leg was 37.5 centimeters whereas the right leg was 38
centimeters).

2

Docket No. 09-1464 (issued February 5, 2010). On May 18, 2003 appellant, then a 52-year-old mail handler,
sustained a work-related medial meniscus tear of his left knee due to pushing a heavy mail container. On June 16,
2003 he underwent OWCP authorized partial left medial and lateral meniscectomies with partial synovectomy of the
patellofemoral joint. Appellant filed a claim alleging that he was entitled to a schedule award and, in an April 22,
2009 decision, OWCP granted him a schedule award for a 10 percent permanent impairment of his left leg based on
an April 12, 2009 report of Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving as OWCP’s medical
adviser.

2

Dr. Davne indicated that he was applying the standards of the sixth edition of the A.M.A.,
Guides (6th ed. 2009). He concluded that appellant had a 10 percent permanent impairment of his
left leg with a date of maximum medical improvement of February 12, 2009 (the date of
Dr. Diamond’s assessment). Dr. Davne stated:
“Specifically I have referenced page 509, Table 16.3 for medial and lateral partial
meniscal injury. The atrophy present is minimal and consistent with his
degenerative arthritis and not as a result of specific neurologic or muscle
weakness. There is no atrophy or weakness of his quadriceps. I do not agree with
the determination of Dr. Diamond of 27 percent or 30 percent impairment as
[appellant] does not suffer from motor strength impairment.”
In a September 23, 2010 decision, OWCP determined that appellant was not entitled to
schedule award compensation in addition to that received for a 10 percent permanent impairment
of his left leg. It found that the opinion of Dr. Davne, the impartial medical specialist, showed
that appellant only had a 10 percent permanent impairment of his left leg.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.6
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the knee, the relevant portion of the leg for the present case,
reference is made to Table 16-3 (knee regional grid) beginning on page 509.7 After the Class of
Diagnosis (CDX) is determined from the knee regional grid (including identification of a default
grade value), the net adjustment formula is applied using the grade modifier for Functional
History (GMFH), grade modifier for Physical Examination (GMPE) and grade modifier for
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
7

See A.M.A., Guides 509-11 (6th ed. 2009).

3

Clinical Studies (GMCS). The net adjustment formula is GMFH - CDX + GMPE - CDX +
GMCS - CDX.8 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations
of modifier scores.9
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.”10 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.11 In a situation where OWCP secures an opinion from an impartial medical specialist
for the purpose of resolving a conflict in the medical evidence and the opinion from such
specialist requires clarification or elaboration, OWCP has the responsibility to secure a
supplemental report from the specialist for the purpose of correcting the defect in the original
opinion.12
ANALYSIS
In the present case, OWCP accepted that appellant sustained a work-related medial
meniscus tear of his left knee. On June 16, 2003 appellant underwent OWCP-authorized left
medial and lateral meniscectomies with partial synovectomy of the patellofemoral joint. In an
April 22, 2009 decision, OWCP granted him a schedule award for a 10 percent permanent
impairment of his left leg. In a February 5, 2010 decision, the Board set aside OWCP’s schedule
award due to an existing conflict in the medical opinion regarding the extent of appellant’s left
leg impairment. The Board remanded the case to OWCP for further development.
On remand, OWCP properly referred appellant to Dr. Davne, a Board-certified orthopedic
surgeon, for an impartial medical examination and an opinion on the extent of his left leg
impairment. In a September 23, 2010 decision, OWCP found that the August 16, 2010 evaluation
of Dr. Davne showed that appellant had no more than a 10 percent impairment of his left leg.
The Board notes that Dr. Davne correctly chose to apply the standards of the sixth edition
of the A.M.A., Guides to evaluate appellant’s impairment as this edition of the A.M.A., Guides
was in effect at the time.13 Given appellant’s surgical history, Dr. Davne determined that, under
Table 16-3 (knee regional grid), the most appropriate diagnostic classification (known as CDX was
found under the “meniscal injury” category for both partial medial and lateral meniscectomies.
8

Id at 515-22.

9

Id. at 23-28.

10

5 U.S.C. § 8123(a).

11

William C. Bush, 40 ECAB 1064, 1975 (1989).

12

Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

13

See supra note 6.

4

Therefore, appellant fell under class 1, grade C, with a default impairment value of 10 percent.
Dr. Davne concluded that appellant had a 10 percent permanent impairment of his left leg.14
The Board notes, however, that Dr. Davne’s impairment evaluation was incomplete. As
noted above, after the CDX is determined from the knee regional grid (including identification of
a default grade value), the net adjustment formula is applied using the selected grade modifier for
GMFH, grade modifier for GMPE and grade modifier for GMCS.15 Dr. Davne did not select any
grade modifiers and did not apply the net adjustment formula to determine whether these
findings raised or lowered the impairment rating for appellant’s left knee.
For the above-described reasons, the opinion of Dr. Davne is in need clarification and
elaboration so that the appropriate standards of the sixth edition of the A.M.A., Guides can be
fully applied. Therefore, in order to resolve the continuing conflict in the medical opinion, the
case will be remanded to OWCP for referral of the case record, a statement of accepted facts,
and, if necessary, appellant, to Dr. Davne for a supplemental report regarding the extent of his
left leg impairment.16 If Dr. Davne is unable to clarify or elaborate on his original report or if his
supplemental report is also vague, speculative or lacking in rationale, OWCP must submit the case
record and a detailed statement of accepted facts to a second impartial specialist for the purpose of
obtaining his rationalized medical opinion on the issue.17 After such further development as
OWCP deems necessary, an appropriate decision should be issued regarding the extent of
appellant’s left leg impairment.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
has more than a 10 percent permanent impairment of his left leg. The case is remanded to
OWCP for further development.

14

See A.M.A., Guides 510.

15

Id at 515-22. The net adjustment formula is GMFH - CDX + GMPE - CDX + GMCS - CDX. See supra note

8.
16

See supra note 12. On appeal, counsel argued that Dr. Davne did not consider the effect of appellant’s
preexisting left knee arthritis on his impairment rating. It should be noted that, even when a meniscal injury is used
as the primary diagnosis under Table 16-3, knee arthritis may be considered when choosing the GMCS under Table
16-8. See A.M.A., Guides 509, 516.
17

Harold Travis, 30 ECAB 1071, 1078 (1979).

5

ORDER
IT IS HEREBY ORDERED THAT the September 23, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: June 23, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Absecon, NJ, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1175
Issued: February 15, 2022

Case Submitted on the Record

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

On July 28, 2021 appellant sought an appeal from a purported July 8, 2021 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1175.
The Board, having duly considered the matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act. 1
This jurisdiction encompasses any final adverse decision issued by OWCP within 180 days of the
date appellant filed his appeal.2 The case record as transmitted to the Board does not contain a
final adverse decision of OWCP issued within 180 days from the date of docketing of the current
appeal.3 In a July 8, 2021 memorandum of telephone call (Form CA-110), OWCP advised
appellant to follow his appeal rights if he disagreed with a decision. This communication is purely
informational in nature and does not constitute a final adverse decision of OWCP from which
appellant may properly appeal. As there is no final adverse decision issued by OWCP over which
1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
2

3

Id.

the Board may properly exercise jurisdiction, the Board concludes that the appeal docketed as No.
21-1175 must be dismissed.4 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1175 is dismissed. 5
Issued: February 15, 2022
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

4

OWCP issued a decision dated May 7, 2021 in a subsidiary file number, OWCP File No. xxxxxx062. Appellant
has appealed this decision to the Board. His appeal from the May 7, 2021 decision will proceed under Docket No.
21-1129.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
5

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0842
Issued: April 19, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 17, 2016 appellant, through counsel, filed a timely appeal from a
November 13, 2015 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 the claim.

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 met her burden of proof to establish that she has more than
five percent impairment of the right upper extremity for which he previously received a schedule
award.
FACTUAL HISTORY
On July 26, 2010 appellant, then a 53-year-old city carrier, injured her right elbow in a
work-related fall. She fell while walking up steps. Appellant had mail in her left arm and used
her right arm to try to prevent herself from falling. OWCP initially accepted the claim for right
elbow contusion, but subsequently expanded the claim to include aggravation of preexisting right
medial epicondylitis and right bicipital tenosynovitis.3 On January 19, 2012 appellant underwent
OWCP-approved right elbow surgery. She received wage-loss compensation for temporary total
disability through April 7, 2014, at which point appellant returned to work in a light/limited-duty
capacity.
On December 10, 2014 appellant filed a claim for a schedule award (Form CA-7).
In a September 11, 2014 report, Dr. David Weiss, a Board-certified orthopedic surgeon,
diagnosed chronic post-traumatic right elbow medial and lateral epicondylitis and status post
January 2012 right elbow lateral epicondylar debridement. He found that appellant had reached
maximum medical improvement (MMI). Dr. Weiss reviewed appellant’s medical records,
performed a physical examination, and provided a right upper extremity impairment rating under
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (2009) (A.M.A., Guides).4 Utilizing the diagnosis-based impairment (DBI)
methodology, he rated appellant based on a diagnosis of right elbow lateral epicondylitis with
surgery, citing Table 15-4, Elbow Regional Grid, A.M.A., Guides 399 (6th ed., 2009). The
default rating (grade C) for the above-noted class 1 Class of Diagnosis (CDX 1) was five
percent. Dr. Weiss assigned grade modifier 3 for Functional History (GMFH), grade modifier 2
for Physical Examination (GMPE), and grade modifier 2 for Clinical Studies (GMCS), and the
net adjustment (+4) resulted in an increased upper extremity impairment of seven percent (grade
E).5
On December 24, 2014 OWCP’s district medical adviser (DMA), Dr. Morley Slutsky,
Board-certified in occupational medicine, reviewed the claim and found appellant had five
percent right upper extremity impairment under Table 15-4, A.M.A., Guides 399 (6th ed., 2009).
He based his rating on the same diagnosis as Dr. Weiss, but disagreed with respect to the net
adjustment, particularly regarding grade modifier 1 assigned for functional history and grade
3

Appellant also has a prior accepted claim (File No. xxxxxx594) for right elbow strain, right medial
epicondylitis, and mild bicipital tendinitis, which occurred in the performance of duty on November 4, 2006.
4

On physical examination, Dr. Weiss noted, among other things, that right elbow range of motion (ROM)
revealed flexion-extension of 0-145/145 degrees, pronation of 80/80 degrees, and supination of 80/80 degrees.
5

Net Adjustment (+4) ꞊ (GMFH 3 - CDX 1) + (GMPE 2 - CDX 1) + (GMCS 2 - CDX 1). See Section 15.3d,
A.M.A., Guides 411 (6th ed., 2009).

2

modifier 0 assigned for physical examination. Dr. Slutsky found a net adjustment of 0, and thus,
the appropriate rating under Table 15-4 was the default (grade C) upper extremity permanent
impairment of five percent. As to the date of MMI, he identified April 22, 2014, which
coincided with the findings of appellant’s surgeon, Dr. Eon K. Shin, a Board-certified orthopedic
surgeon.
By decision dated January 23, 2015, OWCP granted appellant a schedule award for five
percent permanent impairment of the right upper extremity. The award covered a period of 15.6
weeks, from May 4 to August 21, 2014. OWCP relied on the Dr. Slutsky’s December 24, 2014
impairment rating, noting that he “correctly applied the [A.M.A., Guides] to the examination
findings.”
On January 27, 2015 counsel requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. A video hearing was held on August 28, 2015. Counsel argued
that there was an unresolved conflict in medical opinion between Dr. Weiss and the DMA,
Dr. Slutsky thereby warranting referral of the case to an impartial medical examiner.
By decision dated November 13, 2015, OWCP’s hearing representative affirmed the prior
schedule award decision.
On appeal counsel reiterates his contention that there is an unresolved conflict in medical
opinion, thus requiring referral to an impartial medical examiner.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.6 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.7 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.8
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
6

See 20 C.F.R. §§ 1.1-1.4.

7

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
8

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

3

5 U.S.C.

printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).9 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.10
ANALYSIS
The issue on appeal is whether appellant has met her burden of proof to establish more
than five percent permanent impairment of the right upper extremity for which she previously
received a schedule award. The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.11
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.12 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.13
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the November 13, 2015
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
10

Isidoro Rivera, 12 ECAB 348 (1961).

11

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

12

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

13

Supra note 11.

4

deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 13, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 19, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Raleigh, NC,
Employer
__________________________________________

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

Docket No. 11-1034
Issued: December 12, 2011

Case Submitted on the Record

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

JURISDICTION
On March 22, 2011 appellant, through her attorney, filed a timely appeal from a
January 18, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on May 24, 2009.
FACTUAL HISTORY
On October 1, 2009 appellant, then a 35-year-old mail processing clerk, filed a traumatic
injury claim alleging that she was bending over to sweep mail at a delivery bar code sorter on
1

5 U.S.C. § 8101 et seq.

May 24, 2009 when she stood up and felt sharp back pain. She did not incur any lost time from
work. The employing establishment controverted the claim on the grounds that appellant had
stated that she did not know if her injury was job related, previously fell out of a chair and was
involved in a motor vehicle accident sometime between May 24 and October 1, 2009.2
In an October 7, 2009 letter, OWCP informed appellant that additional evidence was
needed to establish her claim. It gave her 30 days to submit medical reports from a physician
explaining how the May 24, 2009 employment incident was causally related to her condition.
Appellant specified in a November 4, 2009 statement that she originally notified
management about her injury on May 24 and 29, 2009. Her supervisor later remarked, “I [a]m
going to have to write you up if you want to fill out the paperwork.” Appellant denied having
any preexisting condition.
In an October 7, 2009 duty status report, Dr. Ansha R. Alexander, a Board-certified
internist, obtained appellant’s account that she sustained back pain on May 24, 2009 due to
“bending over” and “repetitive motion sweeping” at work. She observed pain on palpation of the
lumbar region. Dr. Alexander diagnosed lower back pain and degenerative disc disease and
released appellant to light-duty work effective September 18, 2009.
A report signed by Dr. Alexander on October 30, 2009 indicated that appellant
experienced work-induced back pain that radiated to her left leg and shoulders and diagnosed
back pain and generalized myalgias.
By decision dated November 19, 2009, OWCP denied appellant’s claim, finding the
medical evidence insufficient to establish that the accepted May 24, 2009 employment incident
caused or contributed to a diagnosed medical condition.
Appellant’s counsel requested reconsideration on November 16, 2010 and submitted
additional medical evidence. In an August 4, 2009 report, Dr. Alexander noted that appellant
was recently involved in a motor vehicle collision, which aggravated her lower back pain. She
observed a positive straight leg raise test and trace bilateral patellar reflexes on examination
while a lumbar x-ray did not reveal any abnormalities. Dr. Alexander assessed back pain.
An August 10, 2009 magnetic resonance imaging (MRI) scan obtained by Dr. Lelan F.
Whitmire, a Board-certified diagnostic radiologist, exhibited a small L5-S1 posterior central disc
bulge.
In a September 18, 2009 report, Dr. Alexander mentioned that appellant carried up to 70
pounds of mail as part of her employment duties. She observed lower lumbar and right
paralumbar discomfort on palpation. After reviewing the results of the August 10, 2009 MRI
scan, Dr. Alexander diagnosed back pain with a mild lumbar disc bulge and opined, “[Appellant]
may have some musculoskeletal pain since her job requires her to lift heavy objects.” She
advised light duty “until we get some better etiology and treatment for [appellant’s] back pain.”
2

In an October 2, 2009 letter, the employing establishment added that appellant first filed for unpaid leave under
the Family and Medical Leave Act, but was denied.

2

A September 21, 2009 treatment record signed by a physical therapist pointed out that
appellant’s job required significant bending, squatting, lifting and rotation.
In an October 28, 2009 report, Dr. Alexander related that appellant sustained a lower
back injury at work. She recommended continuing light duty as “[i]t was felt that [appellant’s]
pain was purely muscular in etiology and exacerbated by her lifting at work.”
Dr. Karlus C. Artis, a general practitioner, stated in a November 10, 2010 medical form
that appellant felt sudden back pain while bending and lifting at work. He observed lumbosacral
tenderness on palpation and noted the prior MRI scan results. Dr. Artis diagnosed herniated disc
and lumbago and concluded that appellant’s history suggested a work-related lumbosacral injury.
On January 18, 2011 OWCP modified the November 19, 2009 decision to find that
appellant did not sufficiently establish that she experienced an employment incident on May 24,
2009 as alleged.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of her claim by the weight of reliable, probative and substantial evidence,3
including that she is an “employee” within the meaning of FECA and that she filed her claim
within the applicable time limitation.4 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.7
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and her subsequent
course of action. An employee has not met her burden in establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim. Circumstances such as late notification of injury, lack of confirmation of injury,
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

T.H., 59 ECAB 388 (2008).

7

Gregory J. Reser, 57 ECAB 277 (2005); R.T., Docket No. 08-408 (issued December 16, 2008).

3

continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in
determining whether a prima facie case has been established.8
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 evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. 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.9
ANALYSIS
Appellant alleged that she bent over to sweep mail on May 24, 2009 and experienced
back pain when she stood up. As noted, an employee’s statement that an incident occurred at a
given time and in a given manner is of great probative value and will stand unless refuted by
strong or persuasive evidence. Appellant’s allegation that she bent over to sweep mail on
May 24, 2009 is not disputed by any evidence of record. This factual account of the incident was
also consistent with the health histories obtained by Drs. Alexander and Artis.10 Appellant has
established that the incident occurred as alleged. The Board finds, however, that she failed to
establish her claim as the medical evidence did not sufficiently demonstrate that the accepted
May 24, 2009 work event caused or contributed to her lower back condition. Therefore,
appellant has not established fact of injury.
Dr. Alexander initially noted in an August 4, 2009 report that a motor vehicle collision
aggravated appellant’s lower back pain. She then mentioned in a September 18, 2009 report that
musculoskeletal pain may have resulted from carrying up to 70 pounds of mail and other heavy
objects on the job.11 In an October 7, 2009 duty status report, Dr. Alexander attributed
appellant’s condition to bending and repetitive sweeping at work on May 24, 2009. She
subsequently maintained that the injury was work related in October 28 and 30, 2009 reports.
Dr. Alexander, however, did not sufficiently establish causal relationship because she failed to
explain how bending and sweeping pathophysiologically caused appellant’s lower back

8

Betty J. Smith, 54 ECAB 174 (2002).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

See Caroline Thomas, 51 ECAB 451. The Board also notes that OWCP previously accepted that this
employment incident occurred in its November 19, 2009 decision, but subsequently modified the finding in the
January 18, 2011 decision.
11

See John W. Montoya, 54 ECAB 306, 309 (2003) (a physician’s opinion must discuss whether the employment
incident described by the claimant caused or contributed to the diagnosed medical condition). See also M.W., 57
ECAB 710 (2006); James A. Wyrick, 31 ECAB 1805 (1980) (medical opinions based on an incomplete or inaccurate
history are of diminished probative value).

4

condition.12 The need for such rationale is particularly important here since appellant was
involved in a car accident before she filed a traumatic injury claim.
Dr. Artis concluded in a November 10, 2010 medical form that appellant sustained
lumbago and herniated disc due to bending and lifting at work. Nevertheless, his opinion lacked
fortifying medical rationale and thus offered limited probative value on the issue of causal
relationship.13
The remaining medical reports were also inadequate to establish the claim.
Dr. Whitmire’s August 10, 2009 MRI scan report was of diminished probative value because the
physician did not address whether appellant’s federal employment caused or contributed to her
lower back injury.14 Finally, because a physical therapist is not a “physician” as defined under
FECA, the September 21, 2009 treatment record cannot constitute competent medical evidence.15
In the absence of rationalized medical opinion evidence, appellant failed to meet her burden.
Appellant’s counsel contends on appeal that the decision was contrary to fact and law.
As noted, the medical evidence was insufficient to establish that the accepted May 24, 2009
employment incident was causally related to her lower back condition.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on May 24, 2009.

12

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

13

See George Randolph Taylor, 6 ECAB 986, 988 (1954). The Board points out that Dr. Artis’ opinion suggested
that appellant’s condition developed over a period of time rather than during a single workday or shift, which was
more consistent with a claim for occupational disease. See 20 C.F.R. § 10.5(q) & (ee).
14

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

15

5 U.S.C. § 8101(2); Jennifer L. Sharp, 48 ECAB 209 (1996). See also Charley V.B. Harley, 2 ECAB 208, 211
(1949) (medical opinion, in general, can only be given by a qualified physician).

5

ORDER
IT IS HEREBY ORDERED THAT the January 18, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed, as modified.
Issued: December 12, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-87
Issued: May 23, 2012

Case Submitted on the Record

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

JURISDICTION
On October 24, 2011 appellant filed a timely appeal from the April 28, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $7,225.25 overpayment of
compensation; and (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on August 2, 1993 appellant, then a 48-year-old problem resolution
officer, sustained a lumbar strain, chest wall contusion and bilateral knee contusions after a taxi
began moving while she was exiting.2 Appellant stopped work on August 19, 1993 and OWCP
paid wage-loss compensation for total disability.
Appellant retired from the employing establishment in late 2004 and elected to continue
to receive OWCP compensation benefits. A May 19, 2005 document from the Office of
Personal Management (OPM) noted that appellant elected Postretirement Basic Life Insurance
(PRBLI) effective January 9, 2005.3
On July 27, 2010 the Social Security Administration (SSA) advised OWCP that, effective
June 1, 2010, appellant began receiving Federal Employment Retirement System (FERS)
retirement benefits. The SSA reported the amount of appellant’s benefits with and without
FERS. OWCP was also advised by OPM that appellant elected to be converted to PRBLI, but
that deductions for PRBLI premiums were not made from her compensation payments beginning
January 9, 2005. Effective August 1, 2010, it adjusted appellant’s wage-loss compensation
based on the FERS offset received as part of her SSA retirement benefits and began to make
deductions for PRBLI premiums.
In an August 10, 2010 letter, OWCP made a preliminary determination that appellant
received an overpayment of compensation in the amount of $7,225.25 from January 9, 2005 to
July 31, 2010 as deductions for PRBLI premiums were not made from her wage-loss benefits. It
also made a preliminary determination that she was not at fault in the creation of the
overpayment. OWCP advised appellant that she could submit evidence challenging the fact,
amount, or finding of fault and request waiver of the overpayment. It informed appellant that she
could submit additional evidence in writing or at a prerecoupment hearing, but that a
prerecoupment hearing must be requested within 30 days of the date of the written notice of
overpayment. OWCP requested that appellant complete and return an enclosed overpayment
recovery questionnaire form within 30 days even if she was not requesting waiver of the
overpayment.4
Appellant requested a prerecoupment hearing in connection with the $7,225.25
overpayment. She submitted an overpayment recovery questionnaire form, completed on
September 9, 2010, in which she disputed the amount but she did not provide any of the
2

OWCP later accepted that appellant sustained post-traumatic stress disorder and insomnia as a consequence of
the August 2, 1993 accident.
3

The document showed that no PRBLI premium deductions were made.

4

On September 22, 2010 OWCP issued a preliminary determination that appellant received an overpayment of
compensation in the amount of $1,102.44 on the basis that her compensation benefits were not reduced by the
applicable SSA/FERS offset for the period June 1 to August 28, 2010. It later finalized this preliminary
determination and found that it was not subject to waiver. Appellant has not contested OWCP’s findings with
respect to the $1,102.44 overpayment and the matter is not currently before the Board.

2

requested financial information. Appellant asserted that she did not elect PRBLI and claimed
that she was never advised that she had to pay such premiums upon retirement.
In an October 5, 2010 letter, OWCP clarified how it computed the overpayment of
compensation due to a lack of deductions for PRBLI premiums. It noted that the rate for PRBLI
prior to appellant’s 65th birthday was $2.15 per month and after her 65th birthday it was $1.83 a
month. These monthly rates were for each $1,000.00 of the basic insurance amount in effect at
the time of appellant’s retirement.5 Based on the information provided by OPM regarding the
insurance premium rates, it calculated the overpayment amount of $7,225.25.
Appellant submitted another overpayment recovery questionnaire form, completed on
October 22, 2010. She continued to dispute the $7,225.25 overpayment without providing any of
the requested financial information. Appellant stated that she had contacted the SSA and was
told that there was no problem with her retirement arrangements.
On February 25, 2011 a prerecoupment hearing was held by telephone with an OWCP
hearing representative. Appellant contended that she did not owe any money for PRBLI
premiums. She noted that, in a June 4, 1998 letter, OWCP advised her that she would be paid
compensation under the conditions set forth in the letter, namely that, if she had basic life
insurance, Federal Employees’ Group Life Insurance Program (FEGLI) would continue at no
cost to her.6 Appellant asserted that she had never received any communication telling her
anything different regarding her compensation payments. When she retired, the employing
establishment asked if she wanted to continue her FEGLI and noted that she responded in the
affirmative. Appellant assumed that her life insurance would continue to be paid and believed
that OWCP would advise her if anything changed. She stated that when she retired OPM had her
complete forms advising that she wanted to continue her life insurance. Appellant indicated that
she did not have a normal retirement briefing where she sat down with someone, but rather
discussed the matter over the telephone and had forms sent to her to complete. She stated that
when she retired she could not recall requesting PRBLI. Appellant asserted that had she known
the rate would be about $90.00 a month she would not have requested the coverage.7 She stated
that OWCP initially advised her that the rate was $2.15 and $1.83 a month. When appellant
pointed out that these rates, computed from 2005, would not total $7,225.25, she was informed
that the rates were for each $1,000.00 of coverage. The hearing representative asked appellant
about providing financial information as requested on the overpayment recovery questionnaire
form. Appellant stated that she was financially able to repay the overpayment. When further
advised that providing the financial information would be used to determine the method of
recovery of the overpayment, appellant responded that she did not want to deal with the matter
anymore.

5

The record contains computer records detailing how the calculations of the required PRBLI premiums were
made.
6

The record contains a June 4, 1998 letter to appellant in which OWCP stated, “If you have basic life insurance
(FEGLI), coverage will continue at no cost to you.”
7

The Board notes that the monthly average for PRBLI premiums was actually greater than $90.00.

3

In an April 28, 2011 decision, OWCP’s hearing representative determined that appellant
received a $7,225.25 overpayment of compensation. He found that she was not at fault in the
creation of the overpayment and that the overpayment was not subject to waiver. The hearing
representative found that the overpayment occurred when required PRBLI premiums were not
deducted from appellant’s compensation between January 9, 2005 and July 31, 2010. Waiver of
recovery of the overpayment was not warranted as appellant did not submit the requested
financial information.8
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 her duty.9 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
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 an
individual is entitled.”10
Section 8116(a) of FECA provides that while an employee is receiving compensation or
if she has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.11
Under FEGLI, most civilian employees of the Federal Government are eligible to
participate in basic life insurance and one or more of the options.12 The coverage for basic life
insurance is effective unless waived13 and the premiums for basic and optional life insurance
coverage are withheld from the employee’s pay.14 While the employee is receiving
compensation under FECA, deductions for insurance are withheld from the employee’s
compensation.15 At separation from the employing establishment, FEGLI insurance will either
8

OWCP’s hearing representative also finalized OWCP’s preliminary determination that appellant received an
overpayment of compensation in the amount of $1,102.44 because her compensation benefits were not reduced by
the applicable SSA/FERS offset for the period June 1 to August 28, 2010. As previously noted, this matter is not
currently before the Board.
9

5 U.S.C. § 8102(a).

10

Id. at § 8129(a).

11

Id. at § 8116(a).

12

Id. at § 8702(a).

13

Id. at § 8702(b).

14

Id. at § 8707.

15

Id. at § 8707(b)(1).

4

terminate or be continued under “compensationer” status. If the compensationer chooses to
continue basic and optional life insurance coverage, the schedule of deductions made will be
used to withhold premiums from his or her compensation payments.16 When an under
withholding of life insurance premiums occurs, the entire amount is deemed an overpayment of
compensation because OWCP must pay the full premium to OPM upon discovery of the error.17
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $7,225.25 overpayment of compensation.
Appellant received OWCP compensation for the period January 9, 2005 to July 31, 2010 but did
not have $7,225.25 in PRBLI premiums deducted for this period. OWCP was advised by OPM
that appellant elected, effective January 9, 2005, to be converted to PRBLI. However,
deductions for PRBLI premiums were not made from appellant’s wage-loss compensation
payments until August 1, 2010. Before OWCP and on appeal to the Board, appellant stated that
when she retired she did not recall requesting PRBLI coverage. She asserted that she just wanted
her previous life insurance to continue as before and that no one advised her that there would be
any change in her compensation benefits. The Board finds, however, that appellant has not
provided any evidence to show that she declined PRBLI coverage. Appellant stated that OWCP
failed to advise her of any change in her benefits after retirement and asserted that, had she
known the cost of the PRBLI premiums, she would not have requested the coverage. Such
circumstances would not have any bearing on whether appellant actually received an
overpayment of compensation due to the failure to make deductions for PRBLI premiums.18
OWCP explained how it computed the amount of the PRBLI premiums for the period January 9,
2005 to July 31, 2010 based on the information provided by OPM.
The record establishes that appellant received $7,225.25 in compensation for the period
January 9, 2005 to July 31, 2010 that she was not entitled to receive. Therefore, OWCP properly
determined that appellant received a $7,225.25 overpayment.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.19 These statutory
guidelines are found in section 8129(b) of FECA which states: “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.”20 Since OWCP found
16

Id. at § 8706(b).

17

5 U.S.C. § 8707(d); see Keith H. Mapes, 56 ECAB 130 (2204); James Lloyd Otte, 48 ECAB 334 (1997).

18

Appellant submitted a June 4, 1998 letter addressed to her in which OWCP stated, “If you have basic life
insurance (FEGLI), coverage will continue at no cost to you.” However, this letter does not relate to appellant’s
circumstances after her retirement.
19

See Robert Atchison, 41 ECAB 83, 87 (1989).

20

5 U.S.C. § 8129(b).

5

appellant to be without fault in the matter of the overpayment, then, in accordance with section
8129(b), OWCP may only recover the overpayment if it determined that recovery of the
overpayment would neither defeat the purpose of FECA nor be against equity and good
conscience.
Section 10.438 of OWCP’s regulations provide:
“(a) 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.
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.”21
ANALYSIS -- ISSUE 2
OWCP properly determined that appellant did not establish entitlement to waiver of
recovery of the $7,225.25 overpayment under the above-described standards. Appellant did not
provide financial information within the appropriate time to show that she was entitled to waiver
of the overpayment. Despite being advised of the importance of providing financial information
on an overpayment recovery questionnaire form, she failed to provide such information. For
these reasons, OWCP properly determined that appellant did not show that recovery of the
overpayment would defeat the purpose of FECA or be against equity and good conscience.
Therefore, OWCP properly denied waiver of recovery of the $7,225.25 overpayment.22
CONCLUSION
The Board finds that appellant received a $7,225.25 overpayment of compensation. The
Board further finds that OWCP did not abuse its discretion by refusing to waive recovery of the
overpayment.

21

20 C.F.R. § 10.438.

22

On appeal, appellant asserted that OWCP told her that she did not have to complete an overpayment recovery
questionnaire form, but there is no evidence in support of this assertion.

6

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7