United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, CHICAGO CENTRAL
CARRIER ANNEX, Chicago, IL, Employer
__________________________________________

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

Docket No. 21-1192
Issued: March 14, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 29, 2021 appellant filed a timely appeal from an April 23, 2021 merit decision and
a May 26, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award; and

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 26, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 18, 2015 appellant, then a 47-year-old sales and services distribution
associate, filed a traumatic injury claim (Form CA-1) alleging that on December 12, 2015 she
strained her abdomen when lifting a package while in the performance of duty. OWCP accepted
the claim for a ventral hernia without obstruction or gangrene. On August 15, 2016 appellant
underwent an OWCP-authorized ventral hernia repair. OWCP paid her wage-loss compensation
on the supplemental rolls for time lost from work for the period August 13 through
October 21, 2016. Appellant returned to modified light-duty employment on October 17, 2016
and to her date-of-injury employment on November 7, 2016.
In an impairment evaluation dated November 23, 2020, Dr. Blair Andrew Rhode, a Boardcertified orthopedic surgeon, discussed appellant’s history of sustaining a ventral hernia lifting a
package at work on December 12, 2015. He noted that the hernia had been surgically repaired and
that she had returned to her regular work duties. On examination, Dr. Rhode found tenderness
along the midline of the abdomen with no evidence of a recurrent hernia. Referencing the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),3 he found class 1 impairment of the abdomen using Table 6-4 on page 107,
relevant to determining impairments of the digestive tract, which yielded a default whole person
impairment of five percent. Dr. Rhode applied grade modifiers of zero for functional history,
physical examination, and clinical studies, and found a total of five percent whole person
impairment.
On February 3, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated February 3, 3021, OWCP requested that appellant submit an
impairment evaluation addressing whether she had obtained maximum medical improvement
(MMI) and providing an impairment rating in accordance with the A.M.A., Guides.
On March 18, 2021 Dr. David I. Krohn, a Board-certified internist serving as a district
medical adviser (DMA), noted that Dr. Rhode had not described any current symptoms or
attributed the tenderness to palpation along the midline to the surgical incision. Utilizing Table
6-10 on page 122 of the A.M.A., Guides, relevant to determining impairment due to abdominal
herniation, he found class 0 impairment based on physical findings showing “no palpable defect
in supporting structures of the abdominal wall and no description of slight protrusion at the site of
defect with increased abdominal pressure.” Dr. Krohn advised that Dr. Rhode had used Table 6-4,
which was relevant to impairment of the upper digestive tract, instead of Table 6 -10, the
appropriate method set forth in the A.M.A., Guides for calculating impairment due to herniations.
He found that appellant had reached MMI on December 15, 2020.

3

A.M.A., Guides (6 th ed. 2008).

2

On March 22, 2021 OWCP requested that Dr. Rhode review and discuss Dr. Krohn’s
March 14, 2021 report. It afforded him 30 days to submit the requested information. No response
was received.
By decision dated April 23, 2021, OWCP denied appellant’s schedule award claim. It
found that Dr. Krohn’s report constituted the weight of the evidence and established that she had
no permanent impairment.
On May 24, 2021 appellant requested reconsideration. She argued that Dr. Rhode had not
responded to OWCP’s March 22, 2021 letter requesting clarification of his report, as he had
retired. Appellant asserted that she had recently attended an appointment at a new facility for an
evaluation.
By decision dated May 26, 2021, OWCP denied appellant’s request for reconsideration of
the merits under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body . FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009. 6 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. 7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF): A Contemporary Model of Disablement.8 Under the sixth edition, the evaluator
identifies the impairment class of diagnosis (CDX), which is then adjusted by grade modifiers
based on functional history (GMFH), physical examination (GMPE), and clinical studies

4

Supra note 1.

5

20 C.F.R. § 10.404.

6

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id., at Chapter 3.700, Exhibit 1 (January 2010).
7

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8

A.M.A., Guides (6 th ed. 2009), p.3, section 1.3.

3

(GMCS).9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
Evaluators are directed to provide reasons for their impairment choices, including the choices of
diagnoses from regional grids and calculations of modifier scores. 11
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the implementing regulations.12 FECA identifies members such as the arm, leg,
hand, foot, thumb and finger, organs to include the eye and functions as loss of hearing and loss
of vision.13 Section 8107(c)(22) of FECA provides for the payment of compensation for
permanent loss of any other important external or internal organ of the body as determined by the
Secretary of Labor. 14 The Secretary of Labor has made such a determination and pursuant to the
authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis, testicle,
ovary, uterus, and tongue to the schedule. 15
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the p ercentage of permanent impairment
using the A.M.A., Guides.16
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In a November 23, 2020 impairment evaluation, Dr. Rhode found that appellant had
tenderness along the abdominal midline with no evidence of a recurrent hernia. Utilizing Table
6-4 on page 107, which rates upper digestive tract impairment, he found that she had five percent
whole person impairment. FECA, however, does not allow schedule awards for impairment of the
body as a whole. 17 Furthermore, a schedule award cannot be granted for a digestive impairment
or hernia because neither are listed in FECA or the regulations as a scheduled member or function
of the body. 18 The terms of FECA are specific as to the method and amount of payment of

9

Id. at 494-531.

10

Id. 411.

11

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

12

See G.S., Docket No. 17-1318 (issued October 11, 2017); Leroy M. Terska, 53 ECAB 247 (2001).

13

5 U.S.C. § 8107(c).

14

Id. at § 8122(c)(22).

15

20 C.F.R. § 10.404; Henry B. Floyd, III, 52 ECAB 220 (2001).

16

Supra note 6 at Chapter 2.808.6(f) (March 2017); B.B., Docket No. 18-0782 (issued January 11, 2019).

17

D.K., Docket No. 21-0303 (issued July 8, 2021); S.M., Docket No. 14-1052 (issued September 4, 2014).

18

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404; see D.C., Docket No. 14-1618 (issued December 15, 2014).

4

compensation. Neither OWCP, nor the Board, has the authority to enlarge the terms of FECA or
to make an award of benefits under terms other than those specified in the statute. 19
On March 18, 2021 Dr. Krohn found that appellant had no impairment due to her hernia
using Table 6-10 on page 122, which provides criteria for evaluating whole person impairment
due to abdominal herniation. As discussed, however, a hernia is not listed in FECA or the
regulations as a scheduled member or function of the body, and thus there is no basis for awarding
a schedule award for a hernia. 20
As the medical evidence of record is insufficient to establish permanent impairment of a
member or function of the body listed in FECA or its implementing regulations, the Board finds
that appellant has not met her burden of proof. 21
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progressio n of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his or her own motion or on application. 22
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (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 new evidence not previously considered by OWCP. 23
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought. 24 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.25 If the request is timely, but fails to meet at least one

19

G.S., supra note 12; S.K., Docket No. 08-848 (issued January 26, 2009).

20

Supra note 18.

21

G.S., supra note 12.

22

5 U.S.C. § 8128(a).

23

20 C.F.R. § 10.606(b)(3); see also S.S., Docket No. 18-0647 (issued October 15, 2018).

24
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Supra note 6 at Chapter 2.1602.4
(September 2020). Timeliness is determined by the document receipt date of the request for reconsideration as
indicated by the received date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter
2.1602.4b.
25

Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).

5

of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 26
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Initially, the Board finds that OWCP properly considered appellant’s representative’s
correspondence as a request for reconsideration and not as a claim for a schedule award. 27 The
underlying issue on reconsideration is whether the medical evidence demonstrates a permanent
impairment of a scheduled member or function warranting a schedule award. Thus, the Board
must determine whether appellant presented sufficient evidence or argument demonstrating
permanent impairment sufficient to warrant a merit review pursuant to 5 U.S.C. § 8128(a).28
Appellant has not submitted evidence or raised an argument in support of her request for
reconsideration sufficient to warrant further merit review pursuant to 20 C.F.R. § 10.606(b)(3).
She did not show that OWCP erroneously applied or interpreted a specific point of law or raise a
relevant legal argument not previously considered. On reconsideration, appellant asserted that
Dr. Rhode had retired and that she had sought an impairment evaluation from another physician.
Her contention, however, is not relevant to the underlying issue of whether she sustained a
permanent impairment causally related to her accepted employment injury. 29 That is a medical
issue which must be addressed by relevant and pertinent medical evidence. 30 Thus, appellant is
not entitled to a review of the merits of her claim based on the first and second above -noted
requirements under section 10.606(b)(3). 31
The Board further finds that appellant did not submit any relevant or pertinent new
evidence not previously considered. As she did not provide relevant and pertinent new evidence,
appellant is not entitled to a merit review based on the third requirement under section
10.606(b)(3). 32
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 33

26

Id. at § 10.608(b); K.S., Docket No. 18-1022 (issued October 24, 2018).

27

See K.W., Docket No. 19-0553 (issued November 8, 2019); B.W., Docket No. 18-1415 (issued March 8, 2019).

28

S.W., Docket No. 18-1261 (issued February 22, 2019).

29

See A.G., Docket No. 20-0290 (issued June 24, 2020).

30

See T.V., Docket No. 19-1504 (issued January 23, 2020); S.P., Docket No. 18-1419 (issued February 27, 2019).

31

20 C.F.R. § 10.606(b)(3)(i) and (ii); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

32

Id. at § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

33

A.F., Docket No. 18-1154 (issued January 17, 2019); C.C., Docket No. 17-0043 (issued June 15, 2018).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award. The
Board further finds that OWCP properly denied her request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 26, 2021 and April 23, 2021 are affirmed.
Issued: March 14, 2022
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 12-1947
Issued: May 9, 2013

Case Submitted on the Record

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

JURISDICTION
On September 24, 2012 appellant filed a timely appeal from the June 13, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she had continuing disability after
July 19, 2011 due to her accepted employment injury.
FACTUAL HISTORY
On September 8, 2010 appellant, a 56-year-old correctional officer, filed a claim alleging
that she sustained an exacerbation of left shoulder and elbow conditions as a result of
1

5 U.S.C. § 8101 et seq.

employment activities.2 The claim was accepted for impingement syndrome of the left shoulder,
left lateral epicondylitis, left lateral extensor tendon tear and left elbow tendinitis. On April 5,
2011 OWCP accepted appellant’s claim for a recurrence of total disability due to approved
surgery of the left elbow, which occurred on March 16, 2011. Appellant was paid appropriate
wage-loss compensation.
OWCP received a January 6, 2011 magnetic resonance imaging (MRI) scan of
appellant’s left shoulder, which was interpreted by Dr. Jeffrrey J. Larkin, a Board-certified
diagnostic radiologist, as revealing areas of probably tendinosis of the rotator cuff without
significant-sized rotator cuff tear visualized.
Appellant was treated by Dr. Laura Ross, a Board-certified osteopath specializing in
orthopedic surgery. In a June 17, 2011 attending physician’s report, Dr. Ross diagnosed
recalcitrant lateral epicondylitis of the left elbow and left shoulder impingement syndrome
causally related to employment activities. She indicated that appellant was totally disabled from
March 25 through July 18, 2011, when she would be able to resume regular work.
OWCP referred appellant, together with the medical record, statement of accepted facts
(SOAF) and a position description for her date-of injury position, to Dr. Kenneth P. Heist, a
Board-certified osteopath specializing in orthopedic surgery, for an examination and an opinion
as to whether she was able to return to her regular, full-time job. Dr. Heist was asked to include
a well-reasoned explanation of how his findings supported his medical opinion. He was asked to
complete an OWCP-5 form for work restrictions and specifically to indicate how many pounds
appellant was capable of handling occasionally.
In a report dated July 6, 2011, Dr. Heist opined that appellant was capable of returning to
her date-of-injury job with no restrictions. Examination of the upper extremities revealed the left
elbow with well-healed lateral incisions. There was no evidence of infection. Inspection of the
left upper extremity revealed circulation was satisfactory. Examination of the shoulders revealed
forward elevation right, 0 to 150 degrees and left, 0 to 150 degrees; bilateral abduction was 0 to
150 degrees; bilateral adduction was 0 to 30; internal rotation was 0 to 40 degrees bilaterally; and
external rotation was 0 to 90 degrees bilaterally. There was no evidence of a rotator cuff tear
bilaterally and no acromioclavicular crepitation or any evidence of impingement bilaterally.
Range of elbow motion included: flexion-extension right, 0 to 150 degrees and left, 0 to 140
degrees; supination and pronation were 0 to 80 degrees bilaterally. Dr. Heist diagnosed status
postoperative left lateral epicondylectomy and right lateral epicondylectomy and left shoulder
sprain. He opined that appellant had reached maximum medical improvement and that no
additional orthopedic treatment or diagnostic testing was indicated. In response to questions
posed by OWCP, Dr. Heist stated that appellant had a slight restriction of the last few degrees of
2

Appellant initially filed a claim for a recurrence of total disability under File No. xxxxxx526, which was
accepted for disorder of bursae and tendons of the left shoulder and enthesopathy of the left elbow. The case was
administratively converted into a new injury claim under File No. xxxxxx608. Appellant’s September 28, 2011
claim (File No. xxxxxx466) was accepted for left elbow strain. These claims were consolidated, due to the
overlapping nature of the claims, with File No. xxxxxx608 serving as the master file. Other prior claims include
appellant’s December 15, 2001 occupational disease claim was accepted for lateral epicondylitis of the right elbow
(File No. xxxxxx257). Her April 2, 2003 claim (File No. xxxxxx630) was accepted for neck and shoulder sprain.

2

extension of the left elbow, but that his clinical examination was otherwise normal with good
range of motion and strength. He indicated that appellant had no current disabilities.
In a decision dated July 19, 2011, OWCP terminated appellant’s wage-loss benefits based
on Dr. Heist’s second opinion report.3
On October 14, 2011 appellant, through her representative, requested reconsideration.
Counsel argued that Dr. Heist’s report was insufficient to constitute the weight of the medical
evidence. He also argued that OWCP had denied appellant’s due process rights by failing to
provide notice of termination of compensation benefits.
Appellant submitted numerous reports from Dr. Ross supporting her claim of disability.
In a July 15, 2011 report, Dr. Ross stated that physical examination revealed weakness of
appellant’s left arm, compared to her right, but that appellant’s condition had improved. She
reported better range of motion, no gross instability of the left elbow and some crepitation with
range of motion of the left shoulder. Dr. Ross concluded that appellant could return to full duty
in four weeks.
On July 22, 2011 Dr. Ross opined that appellant could return to work with restrictions,
but was unable to perform the duties of her usual job.
In a narrative report dated July 25, 2011, Dr. Ross disagreed with Dr. Heist’s opinion that
appellant no longer had a medical condition due to her accepted injury, as she clearly had
weakness in the left arm and positive impingement signs in the left shoulder. These issues
needed to be addressed prior to a return to work. In an August 19, 2011 report, Dr. Ross opined
that appellant could work with restrictions, including lifting a maximum of 15 pounds. On
September 16, 2011 she released appellant to work full time without restrictions. Dr. Ross stated
that appellant was totally disabled from March 16 through August 19, 2011 due to her accepted
injury.
An MRI scan of appellant’s left elbow dated August 26, 2011, interpreted by Dr. Sherrill
Little, a Board-certified diagnostic radiologist, stated an impression of underlying tendinosis of
the common extensor tendon with perhaps a minimal partial thickness tear remaining. Dr. Little
concluded that the overall appearance of appellant’s elbow had improved significantly when
compared to the prior study.
In a decision dated January 10, 2012, OWCP denied modification of its prior decision.
Referencing Chapter 2.1400.4c of its procedure manual, the claims examiner noted that OWCP
was not required to provide notice of its intent to terminate appellant’s compensation benefits
because she was not on the periodic rolls.
On March 16, 2012 appellant again requested reconsideration, contending that appellant
was still unable to perform her date-of-injury job. Alternatively, counsel argued that the medical
evidence was sufficient to create a conflict.
3

On July 19, 2011 OWCP also issued a notice of proposed termination of medical benefits based on Dr. Heist’s
opinion that appellant had no residuals from her accepted injury.

3

In a February 8, 2012 report, Dr. Ross provided examination findings reflecting
tenderness to palpation in the radial tunnels of the left arm. In March 21, 2012 report, she stated
that appellant had been unable to return to her date-of-injury position since her September 28,
2011 injury.
Dr. Trina Lisko, an osteopathic physician specializing in physical medicine and
rehabilitation, reported on March 19, 2012 that electrodiagnostic evaluation was positive for
acute left ulnar neuritis; however, all nerve conduction studies and F-wave latencies of the left
upper extremity were within normal limits.
In a March 23, 2012 report, Dr. Ross stated that appellant’s electromyography (EMG)
and nerve conduction studies showed left ulnar neuropathy. She also related that appellant’s left
elbow MRI scan revealed postsurgical change in the common extensor tendon with no evidence
of a new tear.
By decision dated June 13, 2012, OWCP denied modification of its prior decisions on the
grounds that the medical evidence did not establish that appellant’s current disability was work
related.
LEGAL PRECEDENT
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability which continued after termination of compensation
benefits.4
ANALYSIS
OWCP accepted that appellant sustained left shoulder and elbow injuries on September 8,
2010 and terminated appellant’s compensation benefits on July 19, 2011. The subject of this
appeal is her March 16, 2012 request for reconsideration and the June 13, 2012 OWCP decision
which denied her claim for continuing disability. With her request for reconsideration, appellant
submitted medical evidence to the record to substantiate continuing disability due to the
September 8, 2010 injury. The Board finds that appellant did not meet her burden of proof to
establish continuing disability after July 19, 2011, due to the September 8, 2010 injury.
On July 22, 2011 Dr. Ross reported that appellant could work eight hours a day, with
restrictions. In a narrative report dated July 25, 2011, she stated that she disagreed with
Dr. Heist’s conclusion that appellant no longer had a medical condition causally related to her
accepted injury. Dr. Ross opined that appellant still had weakness in the left arm and positive
impingement signs in the left shoulder. She, however, did not explain the basis of her opinion,
based upon objective evidence, and did not explain how her findings differed from Dr. Heist’s
findings upon examination. Dr. Ross did not provide a rationalized medical opinion explaining

4

Howard Y. Miyashiro, 51 ECAB 253 (1999).

4

why appellant remained disabled and required further medical treatment as a result of the
accepted injury.
Dr. Ross again evaluated appellant in February and March 2012. In her February 8, 2012
report, she noted tenderness to palpation in the radial tunnel of the left arm. Dr. Ross related on
March 21, 2012 that appellant had been unable to return to work since her September 28, 2011
injury. On March 23, 2012 she related that appellant’s EMG and nerve conduction studies
showed left ulnar neuropathy. Dr. Ross also reported that appellant’s left elbow MRI scan
revealed postsurgical change in the common extensor tendon with no evidence of a new tear.
She offered no medical opinion relating these findings to appellant’s September 8, 2010 injury,
rather than the new September 28, 2011 injury.
The issue of whether a claimant’s disability is related to an accepted condition is a
medical question which must be established by a physician, who, on the basis of a complete and
accurate factual and medical history, concludes that the disability is causally related to
employment factors and supports that conclusion with sound medical reasoning.5
The Board finds that Dr. Ross did not provide a medical opinion which based upon a
complete medical history, objective findings and supported by sound medical reasoning
explained that appellant had continuing disability after July 19, 2011 causally related to her
accepted injury of September 8, 2010.
The final report from Dr. Lisko, dated March 19, 2012, noted acute ulnar neuritis, but
offered no opinion as to the cause of this condition or whether it disabled appellant.
While appellant’s counsel argues on appeal that there is at least a conflict in medical
evidence as to whether appellant had continuing disability after July 19, 2011 causally related to
the September 8, 2010 injury, the Board finds that appellant did not meet her burden of proof to
establish continuing disability, with rationalized medical evidence explaining causal relationship.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective July 19, 2011. The Board also finds that she has not established
continuing disability after July 19, 2011.

5

Sandra D. Pruitt, 57 ECAB 126 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the June 13, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Bronx, NY, Employer
)
___________________________________________ )
K.C., Appellant

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

Docket No. 14-819
Issued: August 4, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On February 27, 2014 appellant filed an application for review of an Office of Workers’
Compensation Programs’ (OWCP) decision dated October 3, 2013, which denied his
reconsideration request on the grounds that the evidence and argument that he presented did not
warrant a merit review.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued.
In this case, in a decision dated March 15, 2013, an OWCP hearing representative found
that appellant had not established his claim because the medical evidence was not sufficient to
establish causal relationship between work activities and diagnosed conditions. On July 1, 2013
appellant requested reconsideration and he referenced additional medical evidence that he was
submitting. The additional medical evidence included a May 7, 2013 report from Dr. Richard
Memoli, an orthopedic surgeon, which clarified the history of the claimed injury. This evidence
was received by OWCP on July 8, 2013. In its October 3, 2013 decision, OWCP denied
1

41 ECAB 548 (1990).

appellant’s reconsideration request without a merit review.
Dr. Memoli’s report was not received.

It particularly found that

The Board finds that OWCP, in its October 3, 2013 decision, specifically found that the
report from Dr. Memoli was not received. However, as noted above, this report was received by
OWCP on July 8, 2013, prior to the October 3, 2013 decision. For this reason, the case will be
remanded to OWCP to enable it to properly consider all the evidence submitted at the time of the
October 3, 2013 decision. Following such further development as OWCP deems necessary, it
shall issue an appropriate decision on the claim.
IT IS HEREBY ORDERED THAT the October 3, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case recorded is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: August 4, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CLEVELAND MEDICAL CENTER,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 14-1812
Issued: February 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 18, 2014 appellant, through her attorney, filed a timely appeal of a June 4,
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 to consider the merits of the case.
ISSUE
The issue is whether appellant has more than one percent impairment of each upper
extremity for which she received schedule awards.
FACTUAL HISTORY
On December 18, 2011 appellant, then a 64-year-old supervisory social worker, filed an
occupational disease claim alleging that on June 5, 2008 she developed carpal tunnel syndrome

1

5 U.S.C. § 8101 et seq.

due to factors of her federal employment. She stated that she was required to type patient notes
and e-mails and to fill out computerized forms and evaluations.
In a report dated June 13, 2011, Dr. Mark F. Hendrickson, a Board-certified surgeon,
stated that he first examined appellant on August 17, 2009 and diagnosed rheumatoid arthritis
and bilateral carpal tunnel syndrome. He stated that an electromyogram (EMG) on March 27,
2009 demonstrated bilateral median neuropathies in the wrists. Dr. Hendrickson found that
appellant’s second EMG on September 20, 2010 demonstrated mild progression of her carpal
tunnel syndrome on the right, but no change on the left. He opined that appellant’s bilateral
carpal tunnel syndrome was caused and continued to be aggravated by typing at work.
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome on
December 28, 2011. Appellant underwent an additional EMG on January 26, 2012 which
demonstrated right median nerve entrapment at the wrist affecting both the sensory and motor
nerve fibers and, electrodiagnostically, the right median nerve mononeuropathy was of a
moderate degree. EMG also demonstrated a very mild left medial entrapment at the wrist which
affected only the sensory fibers and was borderline abnormal. Dr. Hendrickson performed a
right carpal tunnel release on May 3, 2012.
Appellant filed a claim for a schedule award on May 26, 2013. On July 2, 2013 OWCP
requested additional medical evidence in support of her claim. Appellant submitted a report
from Dr. John L. Dunne, an osteopath, dated June 27, 2013. Dr. Dunne noted her employment
duties and her resulting right carpal tunnel release on May 3, 2012. He found that appellant had
continued right wrist pain, numbness, and tingling as well as an inoperable ganglion cyst in the
right wrist. Dr. Dunne opined that her QuickDASH score was 75 on the right and 22 on the left.
On physical examination he identified a symptomatic ganglion cyst, markedly positive Tinel’s
sign, and positive Phalen’s test. Dr. Dunne found two-point discrimination at seven to nine
millimeters with no atrophy of the thenar or hypothenar eminences.
Dr. Dunne applied the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment2 (A.M.A., Guides) and noted that appellant had reached
maximum medical improvement. He applied Table 15-23, Entrapment/Compression Neuropathy
Impairment3 and determined that her clinical studies were grade modifier 2, functional history
was grade modifier 3 due to constant symptoms, and physical examination were grade modifier
2. Dr. Dunne added the grade modifiers and obtained an average of 2 for the final rating
category. He stated that appellant’s QuickDASH score was severe or 3 for a final upper
extremity impairment of six percent impairment of the right upper extremity.
In regard to appellant’s left upper extremity, Dr. Dunne found that she had no atrophy of
the thenar or hypothenar eminence with strong pinch and grip strength. He stated that she had a
positive Tinel’s sign and positive Phalen’s test with widened two-point discrimination at seven
millimeters. Dr. Dunne stated that appellant’s QuickDASH score on the left was 22. He again
2

A.M.A., Guides (6th ed. 2009). For impairment ratings calculated on and after May 1, 2009, OWCP should
advise any physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
3

A.M.A., Guides 449, Table 15-23.

2

applied Table 15-23 and determined that clinical studies were grade modifier 1, functional
history grade modifier 1 due to mild intermittent symptoms, and physical examination grade
modifier 2. Dr. Dunne totaled and averaged the grade modifiers to reach category 1 for two
percent impairment of the left upper extremity.
The medical adviser reviewed this report on July 20, 2013 and requested a copy of EMG
and nerve conduction studies. He stated that, if this testing was not available, then appellant’s
condition would be rated as nonspecific wrist pain rather than as compression neuropathy. In
accordance with Table 15-3,4 Wrist Regional Grid, the medical adviser found that she had one
percent impairment of each upper extremity due to nonspecific wrist pain following surgery or
acute injury.5
In a decision dated August 26, 2013, OWCP granted appellant schedule awards for one
percent impairment of both upper extremities.
On November 25, 2013 appellant filed a claim for an additional schedule award. She
submitted a report dated February 24, 2014 from Dr. Catherine Watkins Campbell, a physician
Board-certified in occupational medicine, who noted appellant’s history of injury and
employment duties, reviewed the September 20, 2010 EMG and appellant’s pain questionnaire,
and found moderate tendencies towards symptom amplification. Dr. Watkins Campbell noted a
QuickDASH score of 61. On physical examination she found mild thenar atrophy on the right
and a negative Tinel’s sign. Dr. Watkins Campbell utilized Table 15-23 to rate appellant’s nerve
entrapment due to carpal tunnel syndrome and found that constant symptoms were history grade
modifier 3. She further determined that with normal two-point discrimination and mild muscle
atrophy physical examination grade modifier 2 was appropriate. Dr. Watkins Campbell stated
that appellant’s EMG reflected mild conduction delay that had progressed and applied a clinical
studies grade modifier 1. She found that appellant’s average was 2 and concluded that, with a
QuickDASH score of 61 grade and a modifier 3, the total upper extremity impairment for right
carpal tunnel syndrome was six percent.
In regard to appellant’s left upper extremity, Dr. Watkins Campbell found that appellant’s
history of constant but less severe symptoms fit grade modifier 2 and that physical examination
supported grade modifier 1 and that the September 20, 2010 EMG reflected a very mild
conduction delay or grade modifier 1. She applied the formula and reached an average of 1 with
a QuickDASH score of 61 for a total impairment rating of three percent.
Appellant filed a request for reconsideration on April 17, 2014. The medical adviser
reviewed Dr. Watkins Campbell’s report on April 25, 2014. He stated that additional medical
information was needed, specifically the electrodiagnostic numbers for EMG testing. The
medical adviser requested that appellant provide the complete EMG test reports with the
numbers which are applied to Appendix 15-B of the A.M.A., Guides6 to determine if her carpal
tunnel syndrome may be rated using the compression neuropathy provision of Table 15-23.
4

A.M.A., Guides 395, Table 15-3.

5

Id.

6

A.M.A., Guides 487.

3

On May 14, 2014 counsel provided the electrodiagnostic test results from
September 20, 2010. This report included both a sensory nerve conduction and a motor nerve
conduction section. Appellant’s sensory nerve conduction of the median nerve demonstrated on
the left latency of 3.2 milliseconds and on the right 3.8 milliseconds. Her motor nerve
conduction demonstrated distal motor latency of 2.7 milliseconds on the left and 3.4 milliseconds
on the right.
The medical adviser reviewed this report on May 15, 2014 and stated that the
September 20, 2010 EMG test provided did not meet the criteria for use in the compression
neuropathy table.
In comparing the September 20, 2010 test to Appendix 15-B:
Electrodiagnostic Evaluation of Entrapment Syndromes, he stated that the measured distal motor
latency needed to be longer than 4.5 milliseconds for an 8 centimeter study, while appellant’s
study on the right was 3.4 milliseconds. The medical adviser stated that measured distal peak
sensory latency was required to be longer than 4.0 milliseconds for a 14 centimeter study.
Appellant’s testing on the right demonstrated 3.6 milliseconds.
On the left appellant’s testing demonstrated 2.7 milliseconds rather than the required 4.5
milliseconds for distal motor latency and 3.2 milliseconds rather than the required 4 milliseconds
for distal peak sensory latency. The medical adviser opined that as appellant’s electrodiagnostic
test did not meet the criteria of the A.M.A., Guides, her for compression neuropathy, wrists
should be rated for nonspecific wrist pain in accordance with Table 15-3 of the A.M.A., Guides.
He stated that the range of impairment for this condition was from zero to one percent rather than
from zero to nine percent as found in Table 15-23. The medical adviser determined that
appellant’s final impairment rating was one percent for each upper extremity. He stated that her
functional history grade modifier was unreliable as it was two grade modifiers greater than
clinical studies. The medical adviser found that physical examination grade modifier was 2
based on appellant’s partial loss of two-point discrimination. As previously stated he found that
the clinical studies were not appropriate under the A.M.A., Guides and resulted in a grade
modifier of zero. Applying the formula of the A.M.A., Guides, the medical adviser concluded
that appellant had one percent impairment of each of her upper extremities for which she had
received a schedule award.
By decision dated June 4, 2014, OWCP found that appellant had no more than one
percent impairment of each upper extremity for which she had received a schedule award. It
found that the medical adviser properly applied the A.M.A., Guides finding the electrodiagnostic
criteria for allowing the median nerves to be rated using the compression neuropathy table of the
A.M.A., Guides had not been met.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
7

5 U.S.C. §§ 8101-8193, 8107.

8

20 C.F.R. § 10.404.

4

used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.9
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.10 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories, of
clinical studies, functional history, and physical examination. The grade modifier levels are
averaged to arrive at the appropriate overall grade modifier level and to identify a default rating
value. The default rating value may be modified up or down by one percent based on functional
scale, an assessment of impact on daily living activities.11 The maximum impairment rating for
carpal tunnel syndrome is nine.12 This section specifically provides that if test findings are grade
modifier zero because the electrodiagnostic testing is normal or does not meet standards, then
this section is not to be used. The A.M.A., Guides provide an appendix for the evaluation of
electrodiagnostic evidence of entrapment syndromes.13 This appendix specifically states that
testing must demonstrate distal motor latency longer than 4.5 milliseconds for an 8 centimeter
study, that distal peak sensory latency must be longer than 4.0 milliseconds for a 14 centimeter
distance and that distal peak compound nerve latency must be longer than 2.4 milliseconds for a
transcarpal or midpalmar study of 8 centimeters.
The Board notes that the A.M.A., Guides provide that the diagnosis-based impairments is
the method of choice for calculating impairment.14 In addressing upper extremity impairments,
the sixth edition requires identification of the impairment class for the diagnosed condition Class
of Diagnosis (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS). The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15
ANALYSIS
OWCP accepted that appellant developed carpal tunnel syndrome due to her employment
duties and authorized a right carpal tunnel release. Appellant filed a claim for a schedule award.
In support of her claim she submitted reports from Drs. Watkins Campbell and Dunne evaluating
9

For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides (6th ed. 2009); see supra note 2 at Chapter 2.808.5 (February 2014).
10

A.M.A., Guides 449, Table 15-23.

11

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
function scale score. A.M.A., Guides 448-49.
12

A.M.A., Guides 449, Table 15-23.

13

Id. at 487.

14

Id. at 461.

15

Id. at 411.

5

her permanent impairment in accordance with Table 15-23 Entrapment/Compression Neuropathy
Impairment.16 This section of the A.M.A., Guides is only applicable if electrodiagnostic testing
is abnormal and meets with the standards of Appendix 15-b Electrodiagnostic Evaluation of
Entrapment Syndromes.17 Neither Dr. Watkins Campbell nor Dr. Dunne correlated appellant’s
electrodiagnostic test results with this section of the A.M.A., Guides. The physicians did not
explain how or how appellant’s test results complied with this standard. It is well established
that, when the attending physician fails to provide an estimate of impairment conforming to the
A.M.A., Guides, his or her opinion is of diminished probative value in establishing the degree of
permanent impairment and OWCP may rely on the opinion of its medical adviser to apply the
A.M.A., Guides to the findings of the attending physician.18
The medical adviser reviewed the September 20, 2010 electrodiagnostic study and found
that this test did not comply with the standards of the A.M.A., Guides. He stated that neither the
measured distal motor latency nor the measured distal peak sensory latency met the respective
standards of 4.5 and 4.0 milliseconds respectively. Appellant’s testing on the right demonstrated
3.4 and 3.819 milliseconds, while on the left her testing demonstrated 2.7 and 3.2 milliseconds.
Due to the lack of compliant electrodiagnostic testing, the medical adviser correctly determined
that her carpal tunnel syndrome could not be rated under the entrapment neuropathy provisions
of the A.M.A., Guides.
The medical adviser determined that appellant’s wrist conditions should be rated for
nonspecific wrist pain in accordance with Table 15-3 of the A.M.A., Guides as this was a
diagnosis-based estimate as preferred under the A.M.A., Guides. He determined that her
functional history grade modifier was unreliable as it was two grade modifiers greater than
clinical studies. The medical adviser further agreed with appellant’s physicians that physical
examination grade modifier 2 based on her partial loss of two point discrimination. As noted
above, he determined in accordance with the A.M.A., Guides that the clinical studies were not
appropriate and resulted in a grade modifier of zero. Applying the formula of the A.M.A.,
Guides, (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) to the remaining grade modifiers
resulted in (2-1) or 1 percent impairment in accordance with Table 15-3. The medical adviser
concluded that appellant had one percent impairment of each of her upper extremities for which
she had received schedule awards.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

16

Id. at 449.

17

Id. at 487.

18

Linda Beale, 57 ECAB 429 (2006).

19

The Board notes that appellant’s test result was 3.8 milliseconds and that the medical adviser improperly listed
this figure as 3.6. As neither result complies with the standard of 4.0 milliseconds this misstatement is harmless
error.

6

CONCLUSION
The Board finds that appellant has no more than one percent impairment of each of her
upper extremities for which she has received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT June 4, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, GREATER INDIANA
PERFORMANCE CLUSTER, Indianapolis, IN,
Employer
__________________________________________

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

Docket No. 21-0956
Issued: November 23, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 9, 2021 appellant filed a timely appeal from a May 11, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted February 6, 2021 employment incident.
FACTUAL HISTORY
On February 10, 2021 appellant, then a 53-year-old mail handler assistant, filed a traumatic
injury claim (Form CA-1) alleging that on February 6, 2021 he experienced pain in the upper rib,
1

5 U.S.C. § 8101 et seq.

left pectoral, and left upper arm, from elbow to shoulder, when an all-purpose container (APC)
gate hit his upper arm causing him to fall while in the performance of duty. He did not stop work.
In a statement dated February 6, 2021, appellant alleged that he was involved in a work
incident on that date at 2:50 a.m. when a passing truck carrying APCs hit his upper arm, left
pectoral muscle, and rib. He noted that, as the evening progressed, he began having constant pain
in his upper arm to his shoulder. Appellant advised that he would continue working, using his left
arm as little as possible, and if the pain persisted he would notify his supervisor.
On February 8, 2021 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16) authorizing treatment at an urgent care facility. T.G.,
the authorizing official, described appellant’s alleged injury as a left upper arm and elbow to
shoulder muscle spasm.
In a February 10, 2021 duty status report (Form CA-17), an unidentifiable healthcare
provider diagnosed left arm muscle spasm and left shoulder inflammation and provided work
restrictions.
In a February 25, 2021 development letter, OWCP informed appellant that it had received
no evidence in support of his traumatic injury claim. It advised him of the type of factual and
medical evidence needed to establish his claim. OWCP afforded appellant 30 days to submit the
necessary evidence.
OWCP subsequently received additional evidence. In a February 6, 2021 statement from
W.B., he indicated that at approximately 2:50 a.m. that day, a truck driver was pulling off with
APCs when he witnessed the top APC fall down and strike appellant.
In a February 10, 2021 radiology report, Dr. Richard Rossin, a Board-certified radiologist,
conducted a radiologic examination of appellant’s left rib, which demonstrated mild left basilar
atelectasis. Radiological examinations of the left shoulder revealed no acute or significant bone,
joint, or soft tissue abnormality.
On February 16, 2021 appellant was seen by Keona Davis, a family nurse practitioner, for
ongoing complaints of left arm pain.
In notes dated February 21, 2021, Viviana Carbajal, a family nurse practitioner, indicated
that appellant presented for follow up of arm pain resulting from a February 6, 2021 work incident
when his left upper arm was struck by a metal gate. He complained of unresolved pain and
requested a work excuse note. Appellant was referred to physical therapy and for a magnetic
resonance imaging (MRI) scan of the lef t upper extremity. In a note of even date, Ms. Carbajal
held him off work beginning February 14, 2021 and noted that he needed further evaluation and
imaging.
On March 24, 2021 appellant was seen by Ms. Davis, who indicated that he reported arm
pain and aches for a duration of one month. He indicated that his arm had slightly improved.
Ms. Davis performed a physical examination and noted pain in appellant’s left upper arm. She
ordered a follow-up appointment one week after an MRI scan of the left arm and physical therapy
evaluation.
2

Appellant was seen on April 18, 2021 by Ms. Carbajal and he reported that his arm pain
had improved significantly, but that he still experienced sharp shooting pain in his left arm and
shoulder. Ms. Carbajal concluded that he should not be cleared for work until his MRI scan results
were reviewed.
By decision dated May 11, 2021, OWCP accepted that the February 6, 2021 employment
incident occurred as alleged. However, it denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish a diagnosed medical condition causally related to
the accepted employment incident. Consequently, OWCP found that appellant had not met the
requirements to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 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
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 he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury. 6
The evidence required to establish causal relationship is rationalized medical opinion
evidence.7 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported

2

Supra note 1.

3

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued December 13, 2019);
Joe D. Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).

3

by medical rationale explaining the nature of the relationship between the diagnosed condition and
specific employment incident identified by the employee.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted February 6, 2021 employment incident.
In support of his claim, appellant submitted notes dated February 16 and March 24, 2021
from Ms. Davis and notes dated February 21 and April 18, 2021 from Ms. Carbajal, both nurse
practitioners. The Board has held that medical reports signed solely by a nurse practitioner are of
no probative value as such providers are not considered physicians as defined under FECA. 9 This
evidence is, therefore, insufficient to establish appellant’s claim.
OWCP also received a February 10, 2021 Form CA-17 from an unidentifiable healthcare
provider. The Board has held that reports that are unsigned or bear an illegible signature cannot
be considered probative medical evidence as the author cannot be identified a s a physician. 10
Therefore, this report is also of no probative value and is insufficient to establish appellant’s claim.
The remaining medical evidence includes radiographic studies of appellant’s left rib and
shoulder. The Board has held, however, that diagnostic studies, standing alone, lack probative
value and are, therefore, insufficient to establish the claim. 11
As the medical evidence of record is insufficient to establish a medical condition causally
related to the accepted February 6, 2021 employment incident, the Board finds that appellant has
not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9

Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA) see also M.C., Docket No. 19-1074 (issued June 12, 2020); S.L., Docket No. 19-0607 (issued January 28,
2020) (nurse practitioners are not considered physicians under FECA.
10

C.S., Docket No. 20-1354 (issued January 29, 2021); D.T., Docket No. 20-0685 (issued October 8, 2020);
Merton J. Sills, 39 ECAB 572, 575 (1988).
11

J.K., Docket No. 20-0591 (issued August 12, 2020); J.P., supra note 3; A.B., Docket No. 17-0301 (issued
May 19, 2017).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted February 6, 2021 employment incident. 12
ORDER
IT IS HEREBY ORDERED THAT the May 11, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 23, 2021
Washington, DC

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

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

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

12

A completed Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical
facility or physician, when properly executed. The form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See
20 C.F.R. § 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

5


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

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

Docket No. 14-830
Issued: August 22, 2014

Case Submitted on the Record

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

JURISDICTION
On March 4, 2014 appellant, through his representative, filed a timely appeal from the
January 15, 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 OWCP properly denied authorization for appellant’s back surgery.
FACTUAL HISTORY
On April 24, 2007 appellant, a 54-year-old rural carrier associate, sustained a traumatic
injury in the performance of duty when he reached in the back seat of his vehicle to retrieve a
bundle of mail. He felt something in his back, which began to hurt. Appellant described the
nature of his injury as “back and down left leg.” He indicated that he was quickly bedridden.
1

5 U.S.C. § 8101 et seq.

A magnetic resonance imaging (MRI) scan obtained on May 8, 2007 showed a large
central L4-5 disc herniation with inferior extrusion of disc content on the left almost to the level
of the L5-S1 disc space and with effacement and impression on the exiting nerve root structures.
Appellant underwent a left L4-5 lumbar microdiscectomy the following day. The
surgeon removed the disc material so as to free up the thecal sac and nerve root. “I felt
superiorly, medially and inferiorly and laterally out the foramen, above and below the nerve root.
Everything was nice and loose.”
OWCP accepted appellant’s claim for lumbar radiculopathy.
Two months after surgery, appellant was significantly improved.
OWCP asked its medical adviser to explain whether the surgery was necessary based
upon the accepted condition, and whether the claim should be expanded to accept other
conditions. The medical adviser noted that appellant had back pain for one month prior to the
April 24, 2007 injury, and the record showed significant preexisting degenerative disease. “In
addition, the mechanism of injury would not support a herniated disc. There was no lifting
injury in question. Therefore, in my opinion the surgery ... was not necessary based upon the
accepted condition, and the claim should not be expanded to accept any additional conditions.”
In a decision dated October 1, 2012, OWCP denied authorization for appellant’s
May 2007 surgery. It explained that the surgery related to a lumbar disc displacement, a
condition not accepted in the case.
Following a January 16, 2013 telephonic hearing, an OWCP hearing representative
observed that appellant had sustained a twisting-type injury at work while reaching into the back
of his vehicle on April 24, 2007. Appellant reported a worsening of his symptoms and disability
to the extent that he could not drive or walk. Within two weeks, he underwent lumbar disc
surgery. Given this time line, and the circumstances surrounding the claim, the hearing
representative found in an April 18, 2013 decision that OWCP’s medical adviser did not provide
sufficient rationale to support his opinion.
Although there was evidence that appellant had back pain and degenerative disc disease
prior to the work injury, the hearing representative explained that it was not necessary to prove a
significant contribution of employment factors for the purpose of establishing the element of
causal relationship. If the employment factor contributed in any way to appellant’s condition,
such condition would be considered employment related for purposes of compensation under
FECA. Further, the hearing representative noted that OWCP’s medical adviser failed to discuss
the actual mechanism of injury in appellant’s case, and failed to discuss with any degree of
medical reasoning whether the work incident caused or contributed to the subsequent lumbar
herniated disc or disc surgery following the work injury. The hearing representative also noted
that the medical adviser failed to discuss whether the surgery was likely to cure, give relief,
reduce the degree or period of disability, or aid in lessening the amount of monthly
compensation.
In a supplemental report, OWCP’s medical adviser stated that the incident in question
was reaching back to the back of the truck to get a package “and, in all likelihood, the pain was
2

already present, and it would not have been expected that this type of activity would have caused
any significant aggravation.” The medical adviser continued: “Therefore, taking the entire
matter under consideration, it is clear that the primary problem was preexisting disease. There is
no question that there was a very large extruded herniated disc where the disc material herniated
from the disc space and left the space and went into the canal. This, in all likelihood, could not
have occurred with mechanism described.” The medical adviser added: “It is possible, however
there is no documentation to support it, that this twisting injury could have caused some
aggravation of the preexisting herniated disc. However, the overwhelming abundance of records
would indicate the primary difficulty was preexisting, and the incident that was reported in all
likelihood, did not aggravate the existing condition. There was certainly no evidence to suggest
that it caused it.”
In a decision dated January 15, 2014, OWCP denied authorization for appellant’s back
surgery.
LEGAL PRECEDENT
The United States shall furnish to an employee who is injured while in the performance
of duty the services, appliances and supplies prescribed or recommended by a qualified physician
that the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of
any disability or aid in lessening the amount of any monthly compensation.2 OWCP must
therefore exercise discretion in determining whether the particular service, appliance or supply is
likely to effect the purposes specified in FECA.3 The only limitation on OWCP’s authority is
that of reasonableness.4
A claimant seeking compensation under FECA has the burden of establishing the
essential elements of his claim.5 In order to be entitled to reimbursement for medical expenses,
the employee must establish that the expenditures were incurred for treatment of the effects of an
employment-related injury. Proof of causal relation in a case such as this must include
supporting rationalized medical opinion evidence.6
OWCP, however, is not a disinterested arbiter. Rather, it performs the role of adjudicator
on the one hand and gatherer of the relevant facts and protector of the compensation fund on the
other, a role that imposes an obligation on OWCP to see that its administrative processes are

2

5 U.S.C. § 8103(a).

3

See Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority in the administration of
FECA and must exercise that discretion to achieve the objectives of section 8103).
4

Daniel J. Perea, 42 ECAB 214 (1990).

5

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

6

John R. Benton, 15 ECAB 48 (1963); see S.B., Docket No. 11-1332 (issued September 12, 2012) (the issue was
whether the claimant had established that her October 2002 surgery was causally related to the accepted May 2000
lumbar subluxation injury).

3

impartially and fairly conducted.7 It thus shares responsibility in the development of the
evidence.8 Once it procures medical opinion, OWCP must do a complete job.9 It has the
responsibility to obtain from its referral physician an evaluation that will resolve the issue
involved in the case.10
ANALYSIS
OWCP asked its medical adviser to explain whether appellant’s May 9, 2007 surgery was
necessary based upon the accepted condition, and whether the claim should be expanded to
accept other conditions. The hearing representative found, however, that the opinion of the
medical adviser was not sufficiently rationalized.
As the hearing representative noted, appellant sustained a twisting-type injury at work
while reaching into the back of his vehicle on April 24, 2007. He felt something in his back and
had back pain down the left leg. Appellant quickly became bedridden. An MRI scan showed a
large disc herniation at L4-5 with disc extrusion on the left impressing on the exiting nerve root
structures. Appellant underwent a left L4-5 lumbar microdiscectomy the following day to
remove the disc material and free up the thecal sac and nerve root. Two months later, he was
significantly improved.
It was after this surgery that OWCP accepted appellant’s claim for lumbar radiculopathy.
Under the circumstances, the hearing representative found that the medical adviser’s
opinion required clarification, including whether the surgery was likely to cure, give relief,
reduce the degree or period of disability, or aid in lessening the amount of monthly
compensation.
OWCP’s medical adviser provided no additional medical rationale. He continued to
emphasize that appellant’s “primary problem” was preexisting disease. The medical adviser
allowed that it was medically possible for the twisting incident to have aggravated a preexisting
herniated disc, but it would not be expected that this type of activity would cause any
“significant aggravation.”
The Board finds that the opinion of the medical adviser is still not well rationalized. The
medical adviser failed to explain from a medical or biomechanical perspective why a twisting
motion, such as when a man of appellant’s habitus reaches to the back of a vehicle to pick up a
bundle of mail, cannot herniate an already degenerated disc. He did indicate that an aggravation
of a preexisting herniated disc was possible, but he could only speculate in the absence of
probative evidence that appellant’s L4-5 disc herniation was, in fact, preexisting. That
appellant’s “primary problem” was preexisting degenerative disease or that the incident could
7

Thomas M. Lee, 10 ECAB 175, 177 (1958).

8

Mary A. Barnett (Frederick E. Barnett), 17 ECAB 187, 189 (1965).

9

William N. Saathoff, 8 ECAB 769 (1956).

10

Mae Z. Hackett, 34 ECAB 1421, 1426 (1983); Richard W. Kinder, 32 ECAB 863, 866 (1981).

4

not, in the medical adviser’s opinion, have caused any “significant aggravation” is beside the
point. As the hearing representative well explained, causal relationship does not require an
aggravation to be significant.11
Moreover, OWCP has accepted the element of causal relationship, at least insofar as the
April 24, 2007 work incident and appellant’s lumbar radiculopathy are concerned. For purposes
of authorizing surgery, it does not matter whether the work incident precipitated the L4-5 disc
herniation or merely aggravated it. The question for determination is whether the left L4-5
lumbar microdiscectomy on May 9, 2007 was, in the words of the statute, likely to cure, give
relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation with respect to the accepted condition of lumbar radiculopathy. The
opinion OWCP obtained from its medical adviser did not satisfactorily resolve this issue.
In William N. Saathoff,12 the claimant failed to provide any medical evidence of causal
relationship. The Board explained that the Bureau of Employees’ Compensation (now known as
OWCP) could have rejected the claim at that point on the basis that the claimant failed to sustain
his burden of proof. By undertaking development of the medical evidence from a referral
physician, the Bureau obligated itself to give the medical expert a proper frame of reference. As
the medical opinion it adduced was not directed to the question of causal relationship, and as the
deficiency was attributable to the Bureau, the Board set aside the rejection of the claim and
remanded the case to the Bureau for further development of the medical evidence.
The Board applied the same reasoning when OWCP obtained an insufficient report from
its medical adviser. In the case of Mary A. Barnett (Frederick E. Barnett),13 the only medical
opinion in the case was from the Bureau’s medical adviser, but he predicated his conclusion on
the fact that the employee was not doing physical or mental exertion beyond the usual call of
duty when suffering from his fatal heart attack. FECA, however, did not require unusual
exertion or stress as a prerequisite for compensability. Finding that the Bureau shared
responsibility in the development of the evidence, the Board remanded the case for referral to a
specialist in cardiology for an opinion on causal relationship.
In the present case, appellant submitted no rationalized medical opinion on whether his
left L4-5 lumbar microdiscectomy on May 9, 2007 was appropriate for the accepted lumbar
radiculopathy.14 As in Saathoff, OWCP might have denied authorization at that point on the
basis that appellant had failed to sustain his ultimate burden of proof to establish that he was
entitled to such benefits. By undertaking development of the medical evidence from its medical

11

Beth P. Chaput, 37 ECAB 158 (1985) (it is not necessary to prove a significant contribution of employment
factors to a condition for the purpose of establishing causal relationship).
12

Supra note 8.

13

17 ECAB 187 (1965).

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disability Management, Chapter 2.600.7.d(2)
(September 2010) (if the attending physician requests authorization for surgery, OWCP should ensure that medical
rationale has been provided to establish that the proposed surgery is appropriate for the accepted conditions).

5

adviser, as in Barnett, OWCP obligated itself to obtain a medical opinion that would resolve the
issue.
As OWCP undertook development of the medical evidence but failed to obtain an opinion
that rationally resolved whether the May 9, 2007 surgery should be authorized, and whether the
case should be expanded to include other conditions, the Board finds that OWCP has an obligation
to pursue the issue further. Accordingly, the Board finds that OWCP abused its discretion in
denying authorization upon the medical opinion adduced. The Board will therefore set aside
OWCP’s January 15, 2014 decision denying authorization and will remand the case for further
development of the medical opinion evidence. OWCP shall request an opinion from the attending
physician or refer the case to a second opinion specialist for an evaluation of the written record15 to
determine whether appellant’s left L4-5 lumbar microdiscectomy on May 9, 2007 was, in the
words of the statute, likely to cure, give relief, reduce the degree or the period of any disability or
aid in lessening the amount of any monthly compensation with respect to the accepted condition
of lumbar radiculopathy.
After such further development as may become necessary, OWCP shall issue a de novo
decision on the issue of authorization for surgery.
CONCLUSION
The Board finds that OWCP did not properly deny authorization for appellant’s back
surgery. Further development of the medical opinion evidence is warranted.

15

Id., Developing and Evaluating Medical Evidence, Chapter 2.810.10.f (September 2010) (a second opinion
examination should not be requested, since a physical evaluation after the surgery was performed would have
limited value).

6

ORDER
IT IS HEREBY ORDERED THAT the January 15, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: August 22, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Montgomery, AL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0424
Issued: July 1, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 18, 2018 appellant filed a timely appeal from an August 6, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 6, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant received a $1,000.93 overpayment of wage-loss
compensation for the period April 6 through 28, 2018, for which she was without fault; and
(2) whether OWCP properly denied wavier of recovery of the overpayment.
FACTUAL HISTORY
On July 22, 2017 appellant, then a 52-year-old mail handler assistant, filed a traumatic
injury claim (Form CA-1) alleging that on that date she strained her right shoulder while in the
performance of duty. She stopped work on July 22, 2017. OWCP accepted the claim for a strain
of unspecified muscles, fascia, and tendons at the right shoulder and upper arm level. It
subsequently expanded acceptance of the claim to include a complete rotator cuff tear or rupture
of the right shoulder.
On January 4, 2018 appellant underwent a right shoulder rotator cuff repair and open biceps
tenodesis. OWCP paid her wage-loss compensation on the supplemental rolls for the period
January 6 through February 3, 2018 and on the periodic rolls for the period February 4 through
April 28, 2018. It paid appellant $1,218.52 in wage-loss compensation for the period April 1 to
28, 2018.
On January 23, 2018 appellant filed a claim for compensation (Form CA-7). On the form
the employing establishment confirmed that her work schedule guaranteed her 35.70 hours of work
per week.
On April 17, 2018 appellant accepted a position as a modified mail handler assistant
effective April 4, 2018 working 35.70 hours per week at the same level and step as her date-ofinjury position. In an April 26, 2018 e-mail, the employing establishment advised that she had
returned to work on April 6, 2018.
In a preliminary overpayment determination dated May 18, 2018, OWCP notified
appellant that she had received an overpayment of compensation in the amount of $1,000.93
because she returned to employment with no wage loss on April 6, 2018, but received wage-loss
compensation for total disability through April 28, 2018. It further advised her of its preliminary
determination that she was without fault in the creation of the overpayment. OWCP requested that
appellant complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and
submit supporting financial documentation. It notified her that failure to submit the requested
information within 30 days would result in the denial of waiver of recovery of the overpayment.
Additionally, OWCP notified appellant that, within 30 days of the date of the letter, she could
request a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing.
Appellant did not respond to the preliminary overpayment determination within the time
allotted.
By decision dated August 6, 2018, OWCP found that appellant had received a $1,000.93
overpayment of compensation as it had paid her wage-loss compensation for total disability for

2

the period April 6 through 28, 2018 after she returned to work with no wage loss. It determined
that she was without fault in the creation of the overpayment of compensation, but denied waiver
of recovery of the overpayment, noting that she had not responded to its preliminary overpayment
determination or provided evidence regarding her financial situation. OWCP found that appellant
should submit $200.00 monthly to repay the overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section of FECA provides that, while an employee is receiving compensation, he or she may
not receive salary, pay, or remuneration of any type from the United States, except in limited
specified instances.4 OWCP’s regulations provide that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.5 A
claimant is not entitled to receive temporary total disability benefits and actual earnings for the
same time period.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $1,000.93 overpayment of wage-loss
compensation for the period April 6 through 28, 2018, for which she was without fault.
Appellant returned to a modified position with no wage loss on April 6, 2018. She worked
35.70 hours per week, the amount of time guaranteed by the employing establishment for her dateof-injury position. She continued to receive wage-loss compensation for total disability on the
periodic rolls through April 28, 2018.
As noted above, a claimant is not entitled to receive compensation for total disability during
a period in which he or she had actual earnings.7 Therefore, an overpayment of compensation was
created in this case.8
Appellant received disability compensation in the net amount of $1,218.52 for the period
April 1 through 28, 2018. She was only entitled to wage-loss compensation of $217.59. Thus, the
3

5 U.S.C. § 8102.

4

Id. at § 8116(a).

5

20 C.F.R. § 10.500(a).

6

P.S., Docket No. 18-1438 (issued February 1, 2019).

7

L.W., Docket No. 17-0356 (issued June 22, 2017).

8

See K.E., Docket No. 18-0687 (issued October 25, 2018).

3

Board finds that appellant received an overpayment of compensation in the amount of $1,000.93
during the period April 6 through 28, 2018.9
On appeal, appellant contends that after her injury she could only work 35 hours per week
modified employment and that prior to this time she worked over 40 hours per week. The
employing establishment, however, specified that her mail handler assistant position guaranteed
her 35.70 hours per week. As appellant continued to receive wage-loss compensation for total
disability on the periodic rolls through April 28, 2018, an overpayment of compensation was
created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment must be recovered unless “incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of [FECA] or would be against equity and good conscience.”10
Section 10.438 of OWCP regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver.11
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $1,000.93
overpayment of compensation.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.12 Appellant,
however, had the responsibility to provide the appropriate financial information to OWCP.13
In its preliminary overpayment determination dated May 18, 2018, OWCP requested that
appellant provide a completed overpayment recovery questionnaire and supporting financial
information. It advised her that waiver of recovery of the overpayment would be denied if she
failed to furnish the requested financial information within 30 days.
Appellant did not respond to the preliminary determination before OWCP issued its
August 6, 2018 overpayment determination. As a result, OWCP did not have the necessary
9

Id.

10

5 U.S.C. § 8129(a)-(b); see D.C., Docket No. 17-0559 (issued June 21, 2018).

11

20 C.F.R. § 10.438.

12

Id.; see also O.B., Docket No. 19-0034 (issued April 22, 2019).

13

Id.; see also S.M., Docket No. 17-1802 (issued August 20, 2018).

4

financial information to determine whether recovery of the overpayment would defeat the purpose
of FECA or if recovery would be against equity and good conscience. Because appellant failed to
submit the requested information within 30 days, it had no discretion in the matter. The law
therefore required a denial of waiver.14
Consequently, as appellant did not submit the financial information required under section
10.438 of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the
Board finds that OWCP properly denied waiver of recovery of the overpayment of compensation
in the amount of $1,000.93.15
On appeal, appellant contends that she was without fault in creating the overpayment of
compensation. However, the fact that she was not at fault does not relieve her from liability for
repayment of the overpayment of compensation.16
With respect to recovery of the overpayment, the Board’s jurisdiction is limited to
reviewing those cases where OWCP seeks recovery from continuing compensation benefits under
FECA.17 As appellant is no longer receiving wage-loss compensation, the Board does not have
jurisdiction with respect to recovery of the overpayment under the Debt Collection Act.18
CONCLUSION
The Board finds that appellant received a $1,000.93 overpayment of wage-loss
compensation for the period April 6 through 28, 2018, for which she was without fault. The Board
further finds that OWCP properly denied wavier of recovery of the overpayment.

14

Supra note 11.

15

E.K., Docket No. 18-0587 (issued October 1, 2018).

16

See V.T., Docket No. 18-0628 (issued October 25, 2018).

17

E.F., Docket No. 18-1320 (issued March 13, 2019).

18

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the August 6, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6