United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
David C. Harrison, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-2120
Issued: September 11, 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 21, 2011 appellant, through counsel, filed a timely appeal from the May 5,
2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for further review of his claim. As more than 180 days elapsed from the last merit
decision of February 24, 2010 and the filing of this appeal, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant, through counsel, argues that the medical records reflect a
substantial change in his condition making it clear that he is not capable of gainful employment.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts of the prior decision are
hereby incorporated by reference.2 OWCP reduced appellant’s compensation on November 1,
2001 as it determined that he had the ability to perform the duties of a telephone solicitor and this
determination was affirmed by the Board. Appellant requested modification of his wage-earning
capacity by request dated March 14, 2007 and OWCP denied a review on the merits. The Board
remanded this case3 to OWCP to consider the merits of the case. After reviewing the medical
evidence, OWCP by decision dated July 21, 2009 found that modification of the 2001 wageearning capacity decision was not warranted. Appellant requested a hearing before an OWCP
hearing representative, which was held on November 16, 2009. He also submitted new medical
evidence. By decision dated February 24, 2010, the hearing representative affirmed OWCP’s
denial of appellant’s request for modification by decision dated July 21, 2009.
On June 14, 2010 appellant, through counsel, again requested reinstatement of benefits,
alleging that new medical evidence showed there had been a material change in his condition. In
support of his reconsideration request, he submitted a May 12, 2010 report wherein
Dr. Randall N. Smith, a Board-certified orthopedic surgeon, stated that he had treated appellant
continuously since 2001 and that there had been a material change in his condition for the worse
since that time as appellant could do substantially less than he could back in 2001. Dr. Smith
opined that even if appellant had been able to perform the job of telephone solicitor back in
2001, he could not do it now as his pain had substantially increased and therefore his need for
pain medication was also increased. He noted that these conditions together prevented appellant
from concentrating and, specifically, noted that the medication left him drowsy and unable to
concentrate. Dr. Smith opined that appellant would be unable to follow a script that is required
by a telephone solicitor nor could he respond to questions that may be asked by the contact. He
further noted that it was his professional opinion that this pain and required medications were
directly related to the accident of November 14, 1983.
By decision dated May 5, 2011, OWCP denied reconsideration of appellant’s claim
without reviewing the case on the merits.

2

Docket No. 08-1590 (issued July 1, 2009) (the Board remanded the case as appellant was entitled to merit
review on the issue of wage-earning capacity); Docket No. 05-1882 (issued April 20, 2006) (the Board found that
OWCP properly denied modification of its determination that the constructed position of telephone solicitor
represented appellant’s wage-earning capacity); Docket No. 04-2159 (issued February 17, 2005) (the Board found
that OWCP properly refused to reopen appellant’s claim for merit review); Docket No. 03-2283 (issued March 11,
2004) (the Board found that OWCP properly determined that the constructed position of telephone solicitor
represented appellant’s wage-earning capacity and properly reduced appellant’s compensation). OWCP had
accepted appellant’s April 6, 1980 traumatic injury claim for mild instability of the left knee in the performance of
his duties as a painter. On January 24, 1984 it accepted a November 14, 1983 traumatic injury claim for low back
sprain and pain syndrome.
3

Docket No. 08-1590 (issued July 1, 2009).

2

LEGAL PRECEDENT
It is well established that either a claimant or OWCP may seek to modify a formal loss of
wage-earning capacity determination. Once the wage-earning capacity of an injured employee is
determined, a modification of such determination is not warranted unless there is a material
change in the nature and extent of the injury-related condition, the employee has been retrained
or otherwise vocationally rehabilitated or the original determination was, in fact, erroneous.4
The burden of proof is on the party attempting to show modification.5 There is no time limit for
appellant to submit a request for modification of a wage-earning capacity determination.6
ANALYSIS
OWCP issued a decision on November 1, 2001 finding that appellant had the capacity to
earn wages as a telephone solicitor and reduced appellant’s compensation benefits accordingly.
The Board affirmed this decision on March 11, 2004.7 OWCP most recently denied modification
of appellant’s loss of wage-earning capacity determination on July 21, 2009 and this decision
was affirmed by a hearing representative on February 24, 2010.
On June 14, 2010 appellant requested reinstatement of benefits, alleging that his loss of
wage-earning capacity determination should be modified due to a change in the nature and extent
of his injury-related condition. In support thereof, he submitted a May 12, 2010 report by
Dr. Smith wherein he indicated that there had been a material change in appellant’s medical
condition since 2001. Dr. Smith noted that, due to increased pain and appellant’s pain
medication, he could not perform the position of telephone solicitor. He opined that the increase
in pain was directly related to the residuals of his November 13, 1983 injury. By decision dated
May 5, 2011, OWCP denied reconsideration of the February 24, 2010 decision.
Appellant asserted that the loss of wage-earning capacity determination should be
modified. He contended that his injury-related condition had worsened and submitted medical
evidence in support of that assertion. This request for modification was not a request for review
of the February 24, 2010 decision under 5 U.S.C. § 8128(a). Therefore, OWCP improperly
adjudicated appellant’s June 14, 2010 letter as a request for reconsideration.8
Appellant requested modification of the November 1, 2001 loss of wage-earning capacity
determination. The specific requirements of OWCP’s regulations at section 10.606 do not

4

D.E., Docket No. 12-8 (issued June 7, 2012); Katherine T. Creeger, 55 ECAB 633 (2004).

5

Darletha Coleman, 55 ECAB 143 (2003).

6

W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).

7

Docket No. 03-2283.

8

See D.E., supra note 5; F.B., Docket No. 10-99 (issued June 21, 2010); M.J., Docket No. 08-2280 (issued
July 7, 2009).

3

apply.9 The case will be remanded to OWCP to adjudicate appellant’s request for modification
and issue an appropriate decision in this case.
CONCLUSION
The Board finds that OWCP improperly treated appellant’s request for modification of
the November 1, 2001 loss of wage-earning capacity determination as a request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 5, 2011 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further proceedings consistent
with this decision.
Issued: September 11, 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

9

20 C.F.R. § 10.606.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Pierre, SD, Employer
)
__________________________________________ )
M.G., Appellant

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

Docket No. 21-0427
Issued: January 6, 2022

Case Submitted on the Record

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

JURISDICTION
On January 14, 2021 appellant filed a timely appeal from an October 21, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1
The Board notes that, following the October 21, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of the
need for medical treatment commencing January 16, 2020 causally related to his accepted
April 10, 2008 employment injury.
FACTUAL HISTORY
On April 10, 2008 appellant, then a 32-year-old marshal in training, filed a second Form
CA-1 alleging that on April 10, 2008 his left shoulder became dislocated during defensive training
while in the performance of duty. He did not stop work. On May 7, 2009 OWCP accepted this
claim for closed anterior dislocation of the left shoulder under OWCP File No. xxxxxx507.3
On September 5, 2008 appellant underwent a diagnostic arthroscopy with Bankart repair,
left shoulder.
By decision dated July 8, 2010, OWCP granted appellant a schedule award for four percent
permanent impairment of his left upper extremity.
On February 6, 2020 appellant filed a notice of recurrence (Form CA-2a) alleging that on
January 16, 2020 he noticed pain emanating from his left shoulder due to his April 10, 2008
employment injury. He asserted that his recurrence occurred during normal everyday use and that
he had noticed reduced strength and mobility. Appellant did not stop work.
In a February 6, 2020 development letter, OWCP requested additional medical evidence in
support of appellant’s claimed recurrence of a medical condition. It afforded him 30 days to
response. No response was received.
By decision dated April 29, 2020, OWCP denied appellant’s recurrence claim.
On May 4, 2020 Dr. Michael J. Lillestol, a Board-certified internist, examined appellant
due to left shoulder pain. He noted that appellant denied any recent history of trauma, but
described his April 10, 2008 employment injury. Dr. Lillestol noted that since April 10, 2008
appellant had previously experienced occasional episodes with left shoulder pain which lasted a
few days to a week, but usually receded. He noted that appellant’s current left shoulder pain had
persisted for two to three weeks and reported that his left arm strength was decreased. Dr. Lillestol
found limited range of motion in the left shoulder and some tenderness in the medial aspect of the
shoulder. He diagnosed recurrent shoulder dislocation and opined that appellant had a left shoulder
strain pattern with possible internal derangement.
On May 11, 2020 appellant requested an oral hearing from a representative of OWCP’s
Branch of Hearings and Review. During the hearing held on September 8, 2020, appellant testified
3

Appellant has a prior claim under OWCP File No. xxxxxx633, which OWCP accepted for closed dislocation of
the left shoulder. OWCP authorized wage-loss compensation beginning September 14, 2008. Appellant returned to
full-duty work on December 18, 2008. OWCP has administratively combined appellant’s claims with OWCP File
No. xxxxxx633 serving as the master file.

2

that he had no intervening injury and that his shoulder condition occasionally caused him pain and
stiffness.
By decision dated October 21, 2020, OWCP’s hearing representative affirmed the
April 29, 2020 OWCP decision.
LEGAL PRECEDENT
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage. 4 An employee has the burden of proof to establish that he or she
sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause. 5
If a claim for recurrence of a medical condition is made more than 90 days after release
from medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet his
or her burden. 6 To meet this burden, the employee must submit medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, supports that the
condition is causally related and supports his or her conclusion with sound medical ratio nale.7
Where no such rationale is present, medical evidence is of diminished probative value. 8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment commencing January 16, 2020 causally related to his accepted
April 10, 2008 employment injury.
In a May 4, 2020 note, Dr. Lillestol noted that appellant denied any recent history of left
shoulder trauma and described appellant’s April 10, 2008 employment injury. He also noted that
appellant’s current left shoulder pain had persisted for two to three weeks and that appellant’s left
arm strength was decreased. Dr. Lillestol found limited range of motion in the left shoulder and
some tenderness in the medial aspect of the shoulder. He diagnosed recurrent shoulder dislocation
and opined that appellant had a left shoulder strain pattern with possible internal derangement.

4

20 C.F.R. § 10.5(y).

5

S.P., Docket No. 19-0573 (issued May 6, 2021); M.P., Docket No. 19-0161 (issued August 16, 2019); E.R.,
Docket No. 18-0202 (issued June 5, 2018).
6

Federal (FECA) Procedural Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4b (June 2013); see also J.M.,
Docket No. 09-2041 (issued May 6, 2010).
7

S.P., supra note 5; A.C., Docket No. 17-0521 (issued April 24, 2018); O.H., Docket No. 15-0778 (issued
June 25, 2015).
8

S.P., supra note 5; Michael Stockert, 39 ECAB 1186 (1988).

3

Although Dr. Lillestol related appellant’s current left shoulder condition to his accepted
employment injury, his report is of limited probative value on the underlying issue of this case
because he did not provide a rationalized opinion explaining the causal relationship between
appellant’s recurrent need for medical treatment and the accepted employment injury. He did not
describe appellant’s accepted employment conditions in any detail or explain the
pathophysiological process through which such conditions, sustained in approximately April 10,
2008, would require medical treatment in 2020. Dr. Lillestol did not adequately explain how
appellant sustained a spontaneous recurrence of the accepted employment conditions, without an
intervening cause, such that appellant needed medical treatment for that condition. The Board has
held that a report is of limited probative value if it does not contain medical rationale explaining
causal relationship between the recurrent need for medical treatment and the accepted
employment-related injury. Therefore, his May 4, 2020 note is insufficient to establish appellant’s
claim.
As the medical evidence of record does not contain a rationalized m edical opinion
establishing a recurrent need for medical treatment commencing January 16, 2020 causally related
to his accepted employment injury, 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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment commencing January 16, 2020 causally related to his accepted
April 10, 2008 employment injury.

4

ORDER
IT IS HEREBY ORDERED THAT the October 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 18-0156
Issued: August 21, 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 October 27, 2017 appellant, through counsel, filed a timely appeal from an August 23,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a permanent
impairment of a scheduled member entitling her to a schedule award.
FACTUAL HISTORY
On July 24, 2009 appellant, then a 44-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 23, 2009 she twisted her ankle delivering mail while in the
performance of duty. By decision dated August 28, 2009, OWCP accepted the claim for left ankle
sprain. Appellant stopped work on July 24, 2009 and OWCP paid her wage-loss compensation on
the supplemental rolls for the periods July 24 to October 23, 2009, October 26 to November 20,
2009, November 23 to December 4, 2009, and December 7 to 18, 2009. OWCP paid her wageloss compensation benefits on the periodic rolls for the period December 20, 2009 to May 7, 2011.
By decision dated September 30, 2015, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that same date, finding that her work-related medical
conditions and disability had resolved. It found that the special weight of the medical evidence
rested with a second opinion physician, Dr. Richard A. Rogachefsky, a Board-certified orthopedic
hand surgeon, who found that appellant no longer had residuals or disability causally related to her
accepted work-related medical conditions.3
On October 14, 2015 appellant requested a telephonic oral hearing before an OWCP
hearing representative which was held on June 14, 2016.
By decision dated August 26, 2016, an OWCP hearing representative affirmed the
September 30, 2015 decision.
On September 1, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated September 13, 2016, OWCP requested that appellant submit
an impairment evaluation from her attending physician in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).4
On September 27, 2016 counsel requested authorization for appellant to be examined for
purposes of obtaining a rating of her permanent functional impairment.
In a letter dated October 3, 2016, OWCP informed appellant that her medical and wageloss compensation benefits had been terminated on September 30, 2015 because she did not have
residuals of the work injury. It noted that the decision had been affirmed on August 26, 2016.
3

In reports dated June 8 and July 22, 2015, Dr. Rogachefsky reported that appellant’s left ankle sprain had resolved
with no objective findings of disability. He further reported that an electromyogram (EMG) performed on June 30,
2015 revealed no electrodiagnostic evidence of acute or chronic lumbar or S1 nerve root involvement.
4

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

2

OWCP advised her that it would not reopen her claim to allow for a one-time visit with appellant’s
provider in pursuit of a schedule award. It indicated that appellant had the burden of proof to
establish that the condition for which a schedule award was sought was causally related to her
employment.
On November 4, 2016 counsel again requested authorization for appellant to be examined
for purposes of obtaining a rating of permanent functional impairment. He noted that terminating
wage-loss compensation and medical benefits had not terminated entitlement to a schedule award.
By decision dated December 15, 2016, OWCP denied appellant’s claim for a schedule
award as the evidence of record was insufficient to establish permanent impairment to a member
or function of the body.
On December 20, 2016 counsel requested a telephonic hearing before an OWCP hearing
representative. The hearing was held on June 13, 2017.
In letters dated December 23, 2016 and January 28, 2017, counsel yet again requested
authorization for appellant to be examined for the purpose of obtaining a rating of her permanent
functional impairment.
Appellant subsequently submitted an April 5, 2017 impairment rating from Dr. Mesfin
Seyoum, a pediatric specialist, who reviewed appellant’s medical history and provided findings on
physical examination. Dr. Seyoum noted findings of abnormal gait, some limping due to her left
ankle condition which required the use of a cane to help with ambulation and balance, tenderness
of the dorsolateral aspect of the left ankle, mild limitation of left ankle range of motion due to pain,
intact sensory examination and reflexes, and motor weakness of 4/5 in the left hamstring and
quadriceps. He diagnosed left ankle sprain as the accepted condition. Dr. Seyoum opined that
based on the information available it appeared that her left ankle condition was caused by the
accepted employment injury of July 23, 2009 which occurred while she was working as a mail
carrier. He opined that she had reached maximum medical improvement (MMI) on
September 17, 2011. Dr. Seyoum noted that appellant responded to the activities of daily living
questionnaire reporting difficulty with daily living activities such as functional mobility and sleep
and rest.
With regard to the pain disability questionnaire in the A.M.A., Guides appellant scored 92,
corresponding to “moderate pain-related impairment.” The lower limb questionnaire noted
moderate-to-severe impairment citing Table 16-2, foot and ankle regional grid, of the A.M.A.,
Guides, Dr. Seyoum calculated five percent permanent impairment of the left lower extremity for
left ankle sprain with mild motion deficits.5 He determined that this diagnosis resulted in a class 1
impairment with a default value of grade C. Dr. Seyoum assigned a grade modifier of 2 for
functional history (GMFH),6 a grade modifier of 2 for physical examination (GMPE),7 and a grade
5

A.M.A., Guides 501 (6th ed. 2009).

6

Id. at 516, Table 16-6.

7

Id. at 517, Table 16-7.

3

modifier of 1 for clinical studies (GMCS) due to a CT scan evincing mild pathology in the left
ankle.8 Applying the net adjustment formula, he subtracted 1, the numerical value of the class,
from the numerical value of the grade modifiers and then combined those values, resulting in a net
adjustment of 2 ((2-1) + (2-1) + (1-1).9 This resulted in a class 1 adjustment +2, warranting
movement two places to the right for grade E, resulting in a final permanent impairment rating of
seven percent of the left lower extremity.
By decision dated August 23, 2017, an OWCP hearing representative affirmed the
December 15, 2016 decision denying appellant’s schedule award claim. She noted that
Dr. Seyoum had not provided medical rationale explaining how appellant’s current examination
findings or impairment were related to the accepted July 23, 2009 employment injury. The hearing
representative further explained that there was no basis for a schedule award as Dr. Rogachefsky,
the second opinion medical examiner, found that the accepted conditions had resolved and there
were no additional employment-related conditions.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.10 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.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.11
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).12 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.13
The A.M.A., Guides provide a diagnosis-based impairment (DBI) method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability,
and Health (ICF). For lower extremity impairments, the evaluator identifies the impairment class
8

Id. at 519, Table 16-8.

9

Id. at 521.

10

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

11

Id. at § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (March 2017).
13

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

4

of diagnosis (CDX) condition, which is then adjusted by GMFH, GMPE, and GMCS.14 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15 Evaluators are
directed to provide reasons for their impairment rating choices, including choices of diagnoses
from regional grids and calculations of modifier scores.16
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.17 For conditions not accepted by OWCP as being
employment related, it is the employee’s burden to provide rationalized medical evidence
sufficient to establish causal relation, not OWCP’s burden to disprove such relationship.18
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a permanent
impairment of a scheduled member entitling her to a schedule award.
Appellant filed a claim for a schedule award and submitted an April 5, 2017 impairment
rating from Dr. Seyoum in support of her claim. Dr. Seyoum’s report is the only evidence of
record that she has submitted providing an opinion as to her permanent functional impairment. He
calculated appellant’s permanent impairment rating for the condition of left ankle sprain, the
accepted condition, and he opined that she had reached MMI on September 17, 2011. Dr. Seyoum
discussed his impairment calculations. Citing Table 16-2, Foot and Ankle Regional Grid, of the
A.M.A., Guides, he calculated seven percent permanent impairment of the left lower extremity for
left ankle sprain with mild motion deficits.
The Board has previously explained that the medical evidence of record must establish that
the accepted employment injury contributed to the permanent impairment for which schedule
award compensation is alleged.19 Although Dr. Seyoum noted that “it appeared that” appellant’s
left ankle sprain was related to the July 23, 2009 work injury, he provided no medical explanation
or rationale as to how appellant’s current examination findings or impairment were causally related
to the resolved July 23, 2009 work injury.20 As such, his report is insufficient to establish
appellant’s claim.

14

A.M.A., Guides (6th ed. 2009) at 493-531.

15

Id. at 521.

16

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

17

K.B., Docket No. 19-0431 (issued July 1, 2019); Veronica Williams, 56 ECAB 367 (2005).

18

F.E., Docket No. 17-0584 (issued December 18, 2017).

19

See M.C., Docket No. 17-1089 (issued November 13, 2017).

20

See V.S., Docket No. 16-0464 (issued June 1, 2016).

5

Further, Dr. Seyoum noted reviewing medical records up to 2011, but he did not mention
the second opinion physician evaluation of Dr. Rogachefsky or the results of the EMG testing
completed in 2015. The need for detailed medical rationale is particularly important in a situation
such as this where OWCP found that all residuals of the accepted conditions had ceased.21 As
Dr. Seyoum offered no medical explanation that appellant’s employment injury contributed to the
permanent impairment for which schedule award compensation is sought, his report is of limited
probative value.22 Dr. Seyoum’s opinion fails to provide a rationalized opinion explaining how
the current left ankle functional impairment is related to the July 23, 2009 employment injury.
Therefore, the Board finds that the opinion of Dr. Seyoum is insufficient for appellant to meet her
burden of proof to establish that her left ankle permanent impairment is causally related to her
accepted July 23, 2009 employment injury.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.23
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a permanent
impairment of a scheduled member entitling her to a schedule award.

21

See W.J., Docket No. 11-0495 (issued October 7, 2011) (where the Board found that after OWCP terminated
appellant’s compensation benefits appellant filed a claim for a schedule award and submitted an impairment rating.
The Board affirmed OWCP’s decision denying the schedule award because the physician failed to sufficiently explain
how the claimed impairment arose from the accepted work injury which resolved).
22

See M.C., Docket No. 17-1089 (issued November 13, 2017).

23

See W.H., Docket No. 19-0102 (issued June 21, 2019); Linda T. Brown, 51 ECAB 115 (1999).

6

ORDER
IT IS HEREBY ORDERED THAT the August 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Coatesville, PA, Employer
__________________________________________

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

Docket No. 13-1290
Issued: December 18, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 7, 2013 appellant, through her attorney, filed a timely appeal from a
February 19, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
regarding her schedule award claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant has greater than four percent right lower extremity
impairment, for which she received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 19, 2010 appellant, then a 49-year-old psychiatric practical nurse, filed a
traumatic injury claim alleging that she injured her back on May 9, 2010 while transporting a
patient from a chair to the bed. OWCP accepted the claim for herniated lumbar disc at L5-S1
and paid appropriate benefits, including a January 24, 2011 right-sided L5-S1 microdiscectomy.
By decision dated May 9, 2012, it found appellant’s position as a medical support assistant
effective June 7, 2011 fairly and reasonably represented her wage-earning capacity and reduced
her compensation accordingly. Appellant retired on August 31, 2012.
On May 29, 2012 appellant filed a Form CA-7 claim for a schedule award. In a
February 15, 2012 report, Dr. David Weiss, an osteopath, noted the history of injury, appellant’s
medical course and his review of medical records provided. He utilized the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2008) (A.M.A.,
Guides). Dr. Weiss found appellant’s equinus gait was carried through with a modicum of
difficulty and examination of the lumbosacral spine revealed paravertebral muscular spasms and
tenderness over the posterior midline with bilateral posterior superior iliac spine tenderness.
Examination revealed lumbar range of motion 80 degrees, backward extension 20/30 degrees,
left lateral flexion 20/30 degrees, right lateral flexion 20/30 degrees, with positive straight leg
raising test on the right of 80 degrees, 5/5 muscle strength and diminished sensibility over the
L4, L5 and S1 dermatomes involving the right lower extremity. Dr. Weiss opined that the
May 9, 2010 work-related injury was the cause of appellant’s subjective and objective findings
and maximum medical improvement was reached on February 16, 2012. He referred to Table
16-12, Peripheral Nerve Impairment.2 For the right L4 femoral nerve root, Dr. Weiss found
appellant had a class 1 sensory deficit. He applied the net adjustment formula and grade
modifiers. Dr. Weiss referred to Table 17-6, page 575 and determined the grade modifier
functional history was 4; and under Table 16-8, page 519, grade modifier clinical studies was 2.
He utilized the net adjustment formula and found GMFH - CDX (3-1) plus GMCS - CDX (2-1)
equaled a net adjustment of 3, which resulted in two percent sensory deficit right L4 femoral
nerve. For the sensory deficit right L5 and S1 nerve root, Dr. Weiss found under Table 16-12,
page 535 a class 1 sensory deficit or four percent. He found grade modifier functional history 3
and grade modifier clinical studies 2. Utilizing the net adjustment formula of GMFH - CDX
(3-1) plus GMCS - CDX (3-1) equaled 3, for a net adjustment of three or nine percent.
In a July 15, 2012 report, an OWCP medical adviser noted the history of injury and his
review of the medical records, including Dr. Weiss’ February 15, 2012 report. He opined that
Dr. Weiss’ recommendation of 11 percent right lower extremity impairment, which was based
upon 9 percent sensory deficit L5-S1 nerve root and 2 percent motor deficit, could not be utilized
as the tables did not relate to nerve roots, but rather related only to the nerves that make up
multiple nerve roots. The medical adviser explained Dr. Weiss quotes Table 16-12 page 53 and
Table 17-6, page 575 in regard to his calculation; however, both tables relate to large nerves that
are made up of multiple nerve roots and not the nerve roots themselves and therefore are not
applicable. He utilized Dr. Weiss’ examination findings and applied them to the The Guides
Newsletter, July/August 2009. Under Proposed Table 2, page 6, the medical adviser found right
2

A.M.A., Guides 534.

2

L5 nerve root compression with mild sensory deficit was class 1 with default value one percent.
As applied to the grade modifiers, there is no change in the default value of one percent. In
regard to mild motor loss, the medical adviser found right L5 nerve root compression with mild
motor deficit was class 1 with five percent impairment. Based on the adjustment grid and the
grade modifiers, he found an impairment rating of three percent. The medical adviser combined
the one percent mild sensory deficit with the three percent L5 mild motor deficit and found four
percent impairment of the right lower extremity. He opined that appellant reached maximum
medical improvement on February 15, 2012, the date of Dr. Weiss’ examination.
By decision dated August 2, 2012, OWCP awarded four percent right lower extremity
impairment.
On August 7, 2012 appellant’s attorney requested a hearing, which was held on
November 29, 2012 by video conference.
In an August 20, 2012 report, Dr. Daniel Kane, a Board-certified physiatrist, performed
an electrodiagnostic evaluation. He concluded all nerve conduction studies were excellent and
the electromylogram (EMG) testing revealed some chronic L5 nerve root changes with no
significant ongoing nerve root loss and no evidence of lumbosacral plexopathy, a peripheral
neuropathy, a peroneal nerve injury or myopathy. Dr. Kane indicated that the EMG testing was
similar to the testing done in December 2011. A copy of the August 20, 2012 EMG/nerve
conduction test was also submitted.
Additionally, a December 16, 2012 follow-up report from Dr. Kenan Aksu was also
submitted.3 He indicated that her chronic radiculopathy worsens at night and experiences spasms
of the lower extremity.
By decision dated February 19, 2013, an OWCP hearing representative affirmed the
August 2, 2012 decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 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.6 The claimant has the burden of proving

3

Dr. Aksu’s credentials are not of record.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

6

Id.

3

that the condition for which a schedule award is sought is causally related to his or her
employment.7
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.9
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition (July/
August 2009) is to be applied.10
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH) and if electrodiagnostic testing were done, Clinical Studies (GMCS).11 The net
adjustment formula is (GMFH - CDX) + (GMCS - CDX).12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with an OWCP medical
adviser providing rationale for the percentage of impairment specified.13
ANALYSIS
The Board finds that this case is not in posture for decision. Proceedings under FECA
are not adversarial in nature and OWCP is not a disinterested arbiter. While the claimant has the
7

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

8

Pamela J. Darling, 49 ECAB 286 (1998).

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

10

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as
Exhibit 4.
11

A.M.A., Guides 533.

12

Id. at 521.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

4

burden to establish entitlement to compensation, OWCP shares responsibility in the development
of the evidence to see that justice is done.14
OWCP accepted appellant’s traumatic injury claim for L5-S1 disc herniation and granted
a schedule award for four percent permanent impairment of the right lower extremity.
While Dr. Weiss cited various tables in the A.M.A., Guides and calculated an impairment
rating of 11 percent for the right lower extremity, the A.M.A., Guides does not provide a
separate mechanism for rating spinal nerve injuries as impairments of the extremities. OWCP
has adopted the standard set forth in The Guides Newsletter.15 Dr. Weiss did not utilize the
standard set forth in The Guides Newsletter or explain why it is was not applicable. Thus, his
impairment rating is of reduced probative value.16
The medical adviser utilized the standard set forth in The Guides Newsletter, but offered
no explanation as to how the grade modifiers or net adjustment formula were determined and
calculated. Furthermore, the medical adviser failed to explain the basis for his determination.
Thus, the medical adviser’s opinion is of reduced probative value.
As the medical evidence has not been properly correlated to the applicable provisions of
the A.M.A., Guides, the case must be remanded for additional development of the medical
evidence.17
On appeal, appellant’s counsel contends several errors with OWCP’s decision. However,
due to the disposition of the case, counsel’s arguments will not be addressed.
CONCLUSION
The Board finds that this case is not in posture for decision. On remand, OWCP should
develop the medical evidence in accordance with the A.M.A., Guides to determine appellant’s
permanent impairment for schedule award purposes.

14

Horace L. Fuller, 53 ECAB 775, 777 (2002).

15

See L.J., Docket No. 10-1263 (issued March 3, 2011).

16

James Kennedy, Jr., 40 ECAB 620, 627 (1989).

17

T.T., Docket No. 10-880 (issued November 9, 2010). The Board notes that the medical reports from Dr. Kane
and Dr. Aksu are of no probative value with regard to the issue of permanent impairment.

5

ORDER
IT IS HEREBY ORDERED THAT the February 19, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: December 18, 2013
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
N.C., Appellant
and
U.S. POSTAL SERVICE, BROOKLYN
PROCESSING & DISTRIBUTION CENTER,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 21-1020
Issued: February 4, 2022

Case Submitted on the Record

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

JURISDICTION
On June 28, 2021 appellant filed a timely appeal from a May 27, 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. 2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $71,832.29 during the period November 1, 2015
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the May 27, 2021 decision. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

to January 2, 2021, for which she was without fault, because she concurrently received FECA
wage-loss compensation and Social Security Administration (SSA) age-related retirement
benefits, without an appropriate offset; and (2) whether OWCP properly denied waiver of recovery
of the overpayment.
FACTUAL HISTORY
On March 2, 2006 appellant, then a 52-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on that date she sustained a right shoulder condition when she threw a
package while in the performance of duty. She stopped work on March 3, 2006. On the reverse
side of the claim form, appellant’s supervisor indicated that appellant’s retirement coverage was
under the Civil Service Retirement System (CSRS).3 On March 31, 2006 OWCP accepted the
claim for right shoulder strain/sprain. It paid appellant compensation on the supplemental rolls
effective April 17, 2006, and on the periodic rolls effective November 26, 2006. OWCP
subsequently expanded acceptance of the claim to include right upper arm sprain, carpal tunnel
syndrome, lesion of ulnar nerve, right rotator cuff syndrome, and C5-6 cervical disc radiculopathy.
On February 10, 2016 OWCP forwarded a dual compensation benefits form to SSA to
obtain information as to whether an offset of compensation benefits was required for the period
March 2, 2006 to the present.
On April 21, 2016 OWCP received from SSA a March 31, 2016 completed Federal
Employees Retirement System (FERS)/SSA dual benefits calculation form which indicated that
appellant had been in receipt of SSA age-related retirement benefits since November 2015. The
form showed appellant’s SSA age-related retirement benefit rates with and without a FERS offset.
Beginning November 2015, the SSA rate with FERS was $1,295.00 and without FERS was
$175.40; and beginning December 2015, the SSA rate with FERS was $1,295.00 and without
FERS was $175.40.
In correspondence dated April 26, 2016, OWCP advised appellant that she had been
receiving dual FERS and SSA age-related retirement benefits without an appropriate offset. It
further informed her that her FECA wage-loss compensation benefits must be adjusted based on
the FERS portion of SSA benefits that were attributable to federal service. OWCP explained that
appellant’s compensation payments would be offset by the portion of her SSA retirement benefits
attributable to her federal service on account of age, resulting in a new net compensation payment
of $1,521.64, every 28 days.
On December 4, 2020 OWCP forwarded another dual benefits form to SSA to obtain
information as to whether an offset of compensation benefits was required, this time for the period
October 2015 to the present.
On December 16, 2020 OWCP received from SSA a December 16, 2020 completed
FERS/SSA dual benefits form which indicated that appellant had been in receipt of SSA age -

3

The Board notes that initially the FERS box was checked; however, it was crossed out and the CSRS box was
checked instead.

2

related retirement benefits since November 2015.4 The form showed appellant’s SSA age-related
retirement benefit rates with and without a FERS offset. Beginning November 2015, the SSA rate
with FERS was $1,295.00 and without FERS was $175.40; beginning December 2015, the SSA
rate with FERS was $1,295.00 and without FERS was $175.40; beginning December 2016, the
SSA rate with FERS was $1,298.90 and without FERS was $175.90; beginning December 2017,
the SSA rate with FERS was $1,324.80 and without FERS was $179.40; beginning
December 2018, the SSA rate with FERS was $1,361.80 and without FERS was $184.30;
beginning December 2019, the SSA rate with FERS was $1,383.50 and without FERS was
$187.30; and beginning December 2020, the SSA rate with FERS was $1,401.50 and without
FERS was $189.70.
OWCP completed a FERS offset overpayment calculation form on January 14, 2021. It
calculated the amount that should have been offset from appellant’s wage-loss compensation from
November 1, 2015 through January 2, 2021. OWCP found that effective November 1, 2015, the
monthly offset was $1,119.60, or $1,033.48 every 28 days; effective December 1, 2016, the
monthly offset was $1,123.00, or $1,036.62 every 28 days; effective December 1, 2017, the
monthly offset was $1,145.40 or $1,057.29 every 28 days; effective December 1, 2018, the
monthly offset was $1,177.50 or $1,086.92 every 28 days; effective December 1, 2019, the
monthly offset was $1,196.20 or $1,104.18 every 28 days; effective December 1, 2020, the
monthly offset was $1,211.80 or $1,118.58 every 28 days. It divided the 28-day offset amount to
find the daily amount, which it multiplied by the number of days in each period from November 1,
2015 through January 2, 2021, to find the amount that it had overpaid appellant for each period.
OWCP added the amounts for each period finding that the overpayment totaled $71,832.29.
On January 14, 2021 OWCP issued a preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $71,832.29 had been created because it had
failed to reduce appellant’s wage-loss compensation payments for the period November 1, 2015
through January 2, 2021, to offset her SSA age-related retirement benefits that were attributable
to federal service. It determined that she was without fault in the creation of the overpayment.
OWCP requested that appellant submit a completed overpayment recovery questionnaire (Form
OWCP-20) to determine a reasonable repayment method and advised appellant that she could
request a waiver of the overpayment. It further requested that she provide supporting financial
documentation, including copies of income tax returns, bank account statements, bills, pay slips,
and any other records to support income and expenses. Additionally, OWCP provided an
overpayment action request form and further 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. No response was received.
By decision dated May 27, 2021, OWCP finalized the preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the amount
of $71,832.29 for the period November 1, 2015 through January 2, 2021, because she concurrently
4

In a CA-7 form dated April 17, 2006, appellant checked SSA as her retirement system and the employing
establishment indicated that a ppellant was covered by FERS. In a CA-7 form dated August 14, 2006, appellant
checked FERS as her retirement system and the employing establishment did not indicate a retirement system. In a
CA-7 form dated December 4, 2006, neither appellant nor the employing establishment indicated appellant’s
retirement system.

3

received SSA age-related retirement benefits and FECA wage-loss compensation benefits without
a proper offset. It also found that she was without fault in the creation of the overpayment, but
denied waiver of recovery of the overpayment. OWCP noted that as of the date of the decision,
no response had been received to the preliminary overpayment determination and appellant had
not requested a waiver. Therefore, it required recovery of the overpayment in full.
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 his or her duty. 5 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 6
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 7
FECA Bulletin No. 97-09 states that FECA benefits have to be adjusted for the FERS
portion of SSA benefits because the portion of the SSA benefit earned as a federal employee is
part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board, having duly considered this matter, finds that OWCP failed to properly develop
the underlying issue of what portion of appellant’s SSA age-related retirement benefits were
attributable to federal service. 9
OWCP’s procedures provide that an overpayment occurs when FECA compensation is not
reduced by the FERS/FECA offset amount. Since the SSA will not report an offset amount until
after SSA benefits are received, an overpayment will almost always occur and will need to be
calculated for each period in which the offset amount was not withheld from compensation. 10 The
5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see J.T., Docket No. 21-0010 (issued September 30, 2021); S.M., Docket No. 17-1802
(issued August 20, 2018).
8

FECA Bulletin No. 97-09 (February 3, 1997). See also N.B., Docket No. 18-0795 (issued January 4, 2019).

9

See Order Reversing Case, W.G., Docket No. 20-1389 (issued June 30, 2021); Order Reversing Case, R.L., Docket
No. 20-1333 (issued May 13, 2021); J.L., Docket No. 19-1806 (issued July 29, 2020); A.C., Docket No. 19-0174
(issued July 9, 2019).
10

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment,
Chapter 6.200.1 (h), (September 2018).

4

offset provision of 5 U.S.C. § 8116(d)(2) and applicable regulations apply to SSA age-related
retirement benefits that are attributable to federal service. 11 FECA Bulletin No. 97-09 provides
that FECA benefits have to be adjusted for the FERS portion of SSA age -related retirement
benefits because the portion of the SSA benefit earned as a federal employee is p art of the FERS
retirement package, and the receipt of FECA benefits and federal retirement concurrently is a
prohibited dual benefit. 12 In identifying the fact and amount of an overpayment of compensation
following a claimant’s receipt of SSA age-related retirement benefits, OWCP sends a form to SSA
and the completed form is returned to OWCP setting forth purported SSA calculations as to the
effective date and rate of SSA benefits without FERS and the effective date and rate of SSA
benefits with FERS. 13 OWCP then issues a preliminary overpayment determination if a prohibited
dual benefit was received. 14
The Board has observed, however, that not all federal employees are enrolled in FERS.
Some FECA claimants are enrolled in another retirement program, suc h as the CSRS. Other
federal employees are not entitled to be enrolled in a federal retirement program. Therefore,
OWCP’s procedures with regard to requesting offset information are not applicable to all recipients
of FECA compensation and SSA age-related retirement benefits. Herein, the evidence of record
is unclear as to whether appellant was enrolled in FERS. On the Form CA-1 appellant’s supervisor
indicated that appellant’s retirement coverage was under CSRS, rather than FERS. Additionally,
the employing establishment provided differing information regarding the applicable retirement
system on appellant’s CA-7 forms. The Board, therefore, finds that OWCP has not established
fact of overpayment.15
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $71,832.29 during the period November 1, 2015
to January 2, 2021, for which she was without fault.

11

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

12

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

13

Id.

14

J.L., supra note 9.

15

In light of the disposition of Issue 1, Issue 2 is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the May 27, 2021 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: February 4, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Buffalo, NY, Employer
__________________________________________

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

Docket No. 10-616
Issued: October 8, 2010

Case Submitted on the Record

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

JURISDICTION
On January 4, 2010 appellant, through her representative, filed a timely appeal from the
September 16, 2009 decision of the Office of Workers’ Compensation Programs denying her
claim for an employment injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.1
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty on February 19, 2008, as alleged.

1

The Board notes that the Office issued subsequent decisions in this case on February 4 and March 1, 2010. In
the February 4, 2010 decision, the Office denied appellant’s request for reconsideration without conducting a review
of the merits. In a decision dated March 1, 2010, it denied appellant’s request for a hearing. The Board finds these
decisions null and void, as both the Board and the Office cannot have jurisdiction over the same issue in the same
case at the same time as these decisions changed the status of the decision on appeal. Douglas E. Billings, 41 ECAB
880, 895 (1990); see also Thomas W. Stevens, 50 ECAB 288, 289 n.2 (1999) and 20 C.F.R. § 501.2(c).

On appeal appellant, through her attorney, contends that the Office’s decision is contrary
to fact and law.
FACTUAL HISTORY
On February 21, 2008 appellant, then a 52-year-old mail processor, filed a traumatic
injury claim alleging that on February 19, 2008 she was struck by a pie cart and sustained low
back pain and soreness in her neck.
On April 1, 2008, Dr. Gerard J. Werder, a chiropractor, advised that appellant presented
to his office on February 19, 2008 complaining of pain in her neck as a result of a work injury
that occurred that morning when a supervisor pushed a cart that struck her on the right side of the
low back. He diagnosed an exacerbation of L4-5 subluxation with lumbosacral strain and sciatic
neuralgia with a subluxation at C5-6 and cervical strain-sprain.2 Dr. Werder stated that the force
of the contact, knocking her into the machine and the attempt to catch herself was the competent
producing cause of her injury. Dr. Werder stated that appellant’s lumbar spine already had a
permanent injury and that she would not materially worsen in that region. Appellant’s cervical
spine was improving, although she still had episodes of pain, stiffness and tingling in her right
arm and hand. In an undated report, Dr. Werder recounted appellant’s history. He reiterated that
the force of the impact of the pie cart against the right side of appellant’s body caused her to
lurch forward, injuring the right-sided erector muscles of her cervical and lumbar spine. This
resulted in muscle spasms of significant force upon her right cervical spine to cause a disc bulge
at C3-4 and the reversal of her lordotic curve and forward slippage of C7 upon T1
(anterolisthesis). Dr. Werder stated, “The force of the impact was most certainly the competent
producing cause of this injury.”3
In a December 4, 2008 report, Dr. James G. Egnatchik, a Board-certified neurosurgeon,
noted that appellant stated that she had symptoms since February 19, 2008 when she was hit in
the upper back by a large cart. He reviewed the magnetic resonance imaging scan which showed
spondylosis at C5-6 and C6-7. Dr. Egnatchik also noted stenosis of the central spine due to
epidural encroachment from the disc/spur complexes as well as some degenerative changes. He
incidentally noted a multinodual thyroid goiter.
By decision dated March 5, 2009, the Office denied appellant’s claim for compensation.
It accepted that on February 19, 2008 appellant was struck by a pie cart, but denied the claim as
the medical evidence did not establish that her condition was either caused or aggravated by the
accepted work factors. The Office noted that there was no medical opinion or rationale on how
the specific work incident caused the diagnosed medical condition or aggravated the preexisting
cervical and lumbar conditions.

2

Dr. Werder stated that appellant was sent for a magnetic resonance imaging scan of the cervical spine that
revealed disc bulge at C3-4 degenerative disc disease at C5-6 and C6-7, with anterolisthesis of C7 on T1.
3

By letter dated January 28, 2009, the Office advised appellant that chiropractors were deemed a physician under
the Act in limited circumstances. It was noted that Dr. Werder had not taken x-rays to diagnose a subluxation and
requested additional evidence.

2

On March 15, 2009 appellant requested an oral hearing. At the hearing held on July 8,
2009 she noted that she had worked at the employing establishment for over 18 years as a mail
processor and described her duties. Appellant noted that she sought initial treatment with a nurse
at the employing establishment clinic immediately after the incident. She then saw Dr. Werder,
who was already her doctor. Appellant noted that she returned to her regular duties after two
scheduled days off.
By decision dated September 16, 2009, the hearing representative affirmed the Office’s
March 5, 2009 decision.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act4
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,5 including that she is an “employee” within the meaning of
the Act6 and that she filed her claim within the applicable time limitation.7 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.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the 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.9 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.10
In order to satisfy the burden of proof, an employee must submit a physician’s
rationalized medical opinion on the issue of whether the alleged injury was caused by the
employment incident.11 Neither the fact that the condition became apparent during a period of
4

5 U.S.C. §§ 8101-8193.

5

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
6

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
7

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
8

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

9

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

10

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
11

Gary L. Fowler, 45 ECAB 365 (1994).

3

employment nor appellant’s belief that the employment caused nor aggravated her condition is
sufficient to establish causal relationship.12
The term “physician” includes chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist and subject to regulation by the Secretary.13
ANALYSIS
Appellant alleged that she sustained injury when she was struck by a pie cart on
February 21, 2008 during the performance of her federal duties. The Board notes that there is no
dispute that this incident occurred, as alleged. The Board finds, however, that appellant has not
submitted sufficient medical evidence to establish that she sustained an injury to her neck or low
back causally related to this incident. As noted, appellant’s burden of proof includes the
submission of rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship between the employment incident and the
diagnosed condition. The record contains no such medical evidence.
Dr. Egnatchik obtained a history from appellant that she was hurt on February 19, 2008,
however he never clearly relates this incident to the diagnosis of a medical condition. The
reports of Dr. Werder are insufficient as chiropractors are physicians under the Act only to the
extent that their reimbursable services are limited to treatment consisting of manual manipulation
of the spine to correct a subluxation as demonstrated by x-ray to exist.14 As there is no evidence
that Dr. Werder was manipulating the spine to correct a subluxation as demonstrated by an x-ray,
his opinion does not constitute a medical opinion under the Act.
An award of compensation may not be based on surmise, conjecture, speculation or
appellant’s belief of causal relationship.15 There is insufficient medical evidence to establish that
appellant sustained a work-related injury on February 19, 2008. Accordingly, the Board finds
that appellant failed to meet her burden of proof.16
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on February 19, 2008, as alleged.

12

Phillip L. Barnes, 55 ECAB 426 (2004); Jamel A. White, 54 ECAB 224 (2002).

13

Paul Foster, 56 ECAB 208 (2004)

14

Id.

15

John D. Jackson, 55 ECAB 465 (2004); William Nimitz, 30 ECAB 57 (1979).

16

The record on appeal contains evidence submitted after the Office issued its September 16, 2009 decision. The
Board may not consider evidence that was not in the case record when the Office rendered its final decision. 20
C.F.R. § 501.2(c)(1) (2009).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 16, 2009 is affirmed.
Issued: October 8, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 12-530
Issued: May 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 13, 2011 appellant filed a timely appeal from a July 19, 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 this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was disabled
from February 9 to 11, 2011 as a result of his accepted back condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on July 12, 2006 appellant, then a 44-year-old letter carrier,
sustained a back injury in the performance of duty.2 Appellant did not stop work. OWCP
accepted his claim for lumbar strain and lumbar radiculitis.3
In a September 17, 2008 report, Dr. Mary E. Anthony, a Board-certified family
practitioner, advised that appellant’s work duties be limited to lifting less than 25 pounds.4
On February 15, 2011 appellant filed a claim for disability compensation for the period
February 9 to 11, 2011. He indicated that he used 26.05 hours of leave without pay (LWOP)
from February 8 to 11, 2011.5
In a letter dated February 22, 2011, OWCP advised appellant that there was insufficient
medical evidence to support that he was unable to work from February 9 to 11, 2011 as a result
of his accepted work injuries. It informed him that an increase in pain did not constitute
objective evidence of disability and requested a comprehensive medical report that provided
medical rationale, based on objective findings, to support his inability to work.
In a February 8, 2011 report, Dr. Anthony noted appellant’s complaints of increased back
pain due to longer work routes and overtime. The examination revealed nonantalgic gait and 5/5
strength in the lower extremities. Dr. Anthony diagnosed left radiculitis and lumbar pain. She
stated that appellant was given a note off work.
In a March 1, 2011 report, Dr. Anthony noted appellant’s history of chronic back issues
and intermittent recurrent radicular symptoms. Appellant complained of increased pain and
numbness in his left foot due to longer work hours and overtime. Dr. Anthony explained that
although appellant’s objective findings were normal, this fact did not negate his complaints of

2

On July 31, 2006 appellant filed a traumatic injury claim alleging that on July 12, 2006 he was walking down
the driveway with about 15 pounds of mail in his mail satchel on the left side when his back popped out.
3

Appellant had three prior accepted traumatic injury claims in 1989 (File No. xxxxxx914), 1990 (File No.
xxxxxx271) and 2002 (File No. xxxxxx660). Following intermittent periods of disability, he returned to full duty on
October 29, 2002. In a letter dated February 4, 2009, OWCP informed appellant that his previous claims had been
combined into his present claim.
4

On January 24, 2010 appellant requested that his claim be expanded to include herniated disc and included a
September 23, 2009 medical report from Dr. Anthony to support his request. On August 9, 2010 OWCP referred
appellant to Dr. Karl V. Metz, a Board-certified orthopedic surgeon, for a second-opinion examination to determine
whether his herniated disc was causally related to the accepted 2006 injury. In a September 17, 2009 report,
Dr. Metz reviewed appellant’s history, including his diagnostic reports and conducted an examination. He stated
that, based on his examination and review of the records, appellant’s facet arthropathy and disc herniation were not
related to the July 12, 2006 injury. On June 28, 2011 OWCP determined that a conflict of medical opinion existed
between Dr. Anthony and Dr. Metz regarding whether appellant’s claim should be expanded to include disc
herniation and referred the claim for an impartial medical examination. No decision had been reached by OWCP at
the time of this appeal and thus the Board has no jurisdiction to address it.
5

OWCP paid compensation for 2.05 hours of LWOP for appellant’s medical appointment on February 8, 2011.

2

increased pain. She explained that subjective findings did not always translate into objective
findings and advised that appellant be given time off work to alleviate his symptoms.
In a March 8, 2011 report, Dr. Anthony stated that appellant was doing much better but
still complained of numbness in his foot. She observed that appellant was alert, had wellmaintained strength and nonantalgic gait. Dr. Anthony diagnosed left radiculitis.
In a decision dated April 6, 2011, OWCP denied appellant’s claim for disability
compensation for the period February 9 to 11, 2011.
On April 22, 2011 appellant requested a review of the written record. In an April 12,
2011 statement, he responded to OWCP’s April 6, 2011 denial decision. Appellant explained
that he had been dealing with symptoms of several back injuries over his 23 years of working as
a letter carrier but had missed very little work as a result of these injuries.
In a March 12, 2011 report, Dr. Anthony related appellant’s complaints of increased left
foot pain and noted that he was now working full duty.
In an April 12, 2011 report, Dr. Anthony stated that she had treated appellant for chronic
back injuries since 2006. She related that he had intermittent and now more constant numbness
in his left leg. Dr. Anthony noted that a September 5, 2008 magnetic resonance imaging (MRI)
scan revealed disc protrusions and arthritic changes and that in a February 8, 2011 examination
appellant complained of increased pain and numbness in his left foot due to longer work routes
and overtime. She explained that it was logical for him to experience increased pain symptoms
related to longer work hours and overtime and with his long-standing history of back issues.
Dr. Anthony opined that, because of appellant’s history of back issues, arthritis and bulging
discs, he should take time off work so that his symptoms did not worsen.
By decision dated July 19, 2011, an OWCP hearing representative affirmed the April 6,
2011 decision denying appellant’s claim for disability compensation for the period February 9
to 11, 2011.6
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.7 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his work-related
injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force) or when the physical requirements of such
6

The hearing representative noted that appellant had submitted several requests to expand his claim to include
disc herniation and facet arthropathy and instructed the district OWCP to weigh the medical evidence and issue a
decision regarding the expansion of his claim.
7

20 C.F.R. § 10.5(x).

3

an assignment are altered so that they exceed his established physical limitations.8 Moreover,
when the claimed recurrence of disability follows a return to light-duty work, the employee may
satisfy his burden of proof by showing a change in the nature and extent of the injury-related
condition such that he is no longer able to perform the light-duty assignment.9
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he has the burden of establishing that the recurrence of disability is causally
related to the original injury.10 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.11 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.12
ANALYSIS
OWCP accepted that appellant sustained a back condition as a result of the July 12, 2006
employment incident. Appellant did not stop work but was medically restricted to lifting less
than 25 pounds. He filed a claim for disability compensation for the period February 9
to 11, 2011. OWCP denied appellant’s claim on the grounds of insufficient medical evidence to
demonstrate that he was disabled as a result of his accepted back injury. The Board finds that he
failed to meet his burden of proof to establish that his claimed disability on those days was
causally related to his accepted back injury.
Appellant submitted various medical reports from Dr. Anthony who related appellant’s
complaints of increased back pain due to longer work routes and overtime. The examination
revealed nonantalgic gait and well-maintained strength. Dr. Anthony explained that the normal
objective findings did not negate the fact that appellant had increased pain. She explained that
subjective findings did not always translate into objective findings and recommended that
appellant be given time off work. Although Dr. Anthony tried to explain the lack of objective
findings, the Board has found that findings on examination are needed to support a physician’s
opinion that an employee is disabled for work.13 However, she did not provide any objective
medical findings to support appellant’s disability but merely related that he experienced
increased pain. Because the record fails to contain objective medical findings to support that

8

Id.

9

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

10

20 C.F.R. § 10.104(b); Carmen Gould, 50 ECAB 504 (1999); Robert H. St. Onge, 43 ECAB 1169 (1992).

11

Helen K. Holt, 50 ECAB 279 (1999).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (March 2011).

13

See S.F., 59 ECAB 525 (2008); Fereidoon Kharabi, 52 ECAB 291 (2001).

4

appellant was disabled from work on the claimed days of disability due to his employment
injury, the Board finds that he did not meet her burden of proof to establish his claim.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he was
disabled from February 9 to 11, 2011 as a result of his accepted back injury.
ORDER
IT IS HEREBY ORDERED THAT the July 19, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

On appeal, appellant did not contest the denial of his compensation claim but stated that the district OWCP was
instructed to issue a decision regarding his request to expand his claim. As this issue is not before the Board at this
time, the Board will not render a decision regarding the expansion of his claim.

5


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

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

Docket No. 07-934
Issued: August 17, 2007

Case Submitted on the Record

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

JURISDICTION
On February 21, 2007 appellant filed a timely appeal from a December 5, 2006 decision
of the Office of Workers’ Compensation Programs, reducing her loss of wage-earning capacity
to zero and terminating her compensation benefits. Pursuant to 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 the Office met its burden of proof in reducing appellant’s wageearning capacity to zero and terminating her compensation benefits effective December 5, 2006
based on her ability to perform the position of a massage therapist.
FACTUAL HISTORY
In February 2005 appellant, then a 39-year-old letter carrier, filed an occupational disease
claim alleging that she sustained an emotional condition due to her employment. On March 3,
2006 the Office accepted her claim for an acute reaction to stress, a depressive disorder and an

anxiety disorder. On June 19, 2006 the claim was expanded to include an adjustment reaction
with anxiety and depression.
In a January 30, 2006 report, Dr. Michael K. Friedman, a psychiatrist and Office referral
physician, stated that appellant could not work under a supervisor who was overly critical.
The record shows that appellant worked as a self-employed massage therapist
intermittently from September 2003 to March 10, 2006. She indicated that between April 13 and
July 30, 2005 she received $25.00 per hour in her business. Beginning March 23, 2006 appellant
was employed as a night stocking clerk at a store for 10 to 15 hours a week at the rate of $8.06
per hour.
In a report dated October 15, 2006, a rehabilitation counselor provided a description of
the position of massage therapist and the physical and vocational requirements and concluded
that the position was within appellant’s work capabilities. She noted that appellant had
completed a course of study at a massage school, was licensed by the state as a massage
practitioner and had worked as a massage therapist. The counselor indicated that the position of
massage therapist best fit appellant’s qualifications and represented her highest wage-earning
capacity. She determined that appellant was physically and vocationally qualified for the
position of massage therapist. The counselor noted that a labor market survey confirmed that the
position was performed in sufficient numbers so as to make it reasonably available to appellant
within her commuting area. She indicated that the position paid weekly wages of $1,132.00
based on hourly wages of $28.30 multiplied by 40 hours. The documents provided by the
counselor included information from the Occupational Outlook Handbook published by the
Bureau of Labor Statistics of the U.S. Department of Labor as follows:
“Because of the physical nature of the work and time needed in between sessions,
massage therapists typically give massages less than 40 hours per week.
Therapists who give massages anywhere from 15 to 30 hours a week usually
consider themselves to be full-time workers.”
***
“About three-quarters of all massage therapists worked part-time or had variable
schedules, although[,] as mentioned earlier[,] many massage therapists who work
15 to 30 hours per week consider themselves to be full-time workers.
“Median hourly earnings of massage therapists, including gratuities earned, were
$15.36 in May 2004. The middle 50 percent earned between $9.78 and $23.82.
The lower 10 percent earned less than $7.16 and the highest earned more than
$32.21. Generally, massage therapists earn 15 to 20 percent of their income as
gratuities. For those who work in a hospital or other clinical setting, however,
tipping is not common.”

2

On October 18, 2006 the Office advised appellant that it proposed to reduce her wageloss compensation based on her wage-earning capacity as a massage therapist at the rate of
$1,132.00 a week.1
On November 14, 2006 appellant disagreed with the proposed reduction in her
compensation benefits. She stated that massage therapists do not work 40 hours a week due to
the physically demanding nature of the work. Appellant argued that she could only work as a
massage therapist as a sole practitioner because her anxiety condition was aggravated when she
worked under supervision.
On December 5, 2006 the Office reduced appellant’s wage-loss compensation to zero
based on her capacity to earn wages as a massage therapist. The Office determined that the
massage therapist position was medically and vocationally suitable.2
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury, it has the burden of justifying a subsequent reduction of compensation
benefits.3
Under section 8115(a) of the Federal Employees’ Compensation Act,4 wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent her wage-earning capacity. If the actual earnings do not fairly and
reasonably represent wage-earning capacity, or if the employee has no actual earnings, her wageearning capacity is determined with due regard to the nature of her injury, her degree of physical
impairment, her usual employment, her age, her qualifications for other employment, the
availability of suitable employment and other facts and circumstances which may affect her
wage-earning capacity in his disabled condition.5 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment
conditions.6 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.7

1

The current weekly pay rate for appellant’s position at the employing establishment was $885.63.

2

Subsequent to the December 5, 2006 Office decision, additional evidence was added to the record. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

Sherman Preston, 56 ECAB ___ (Docket No. 05-721, issued June 20, 2005).

4

5 U.S.C. §§ 8101-8193.

5

See Mary E. Marshall, 56 ECAB ___ (Docket No. 04-1048, issued March 25, 2005); James Smith, 53 ECAB
188 (2001).
6

Id.

7

Id.

3

When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits the employee’s capabilities with regard to her physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service.8 Finally, the Office should apply the principles
set forth in Albert C. Shadrick in determining loss of wage-earning capacity.9
ANALYSIS
The Board finds that the Office has not met its burden of proof in reducing appellant’s
wage-earning capacity to zero and terminating her compensation benefits effective December 5,
2006 based on her ability to perform the selected position of massage therapist.
The Office calculated appellant’s loss of wage-earning capacity by multiplying an
average hourly rate of $28.30 for a massage therapist working in appellant’s commuting area by
40 hours. As noted, the Occupational Outlook Handbook published by the Bureau of Labor
Statistics of the U.S. Department of Labor provides as follows:
“Because of the physical nature of the work and time needed in between sessions,
massage therapists typically give massages less than 40 hours per week.
Therapists who give massages anywhere from 15 to 30 hours a week usually
consider themselves to be full-time workers.”
The handbook stated that approximately three-quarters of all massage therapists worked
part time or had variable schedules. The Board finds that the Office erred in calculating the
weekly pay rate for a massage therapist by multiplying the average hourly pay rate by 40 hours.
The record shows that massage therapists typically do not work 40 hours a week, with 15 to 30
hours a week being considered full-time work by massage therapists. Accordingly, the Office
did not meet its burden of proof to establish that the position of massage therapist reflected
appellant’s wage-earning capacity effective December 5, 2006, the date it reduced her wage-loss
compensation benefits to zero and terminating her compensation benefits.
CONCLUSION
The Board finds that the Office did not meet its burden of proof in determining
appellant’s loss of wage-earning capacity to zero based on her ability to earn the wages of a
massage therapist and in terminating her compensation benefits effective December 5, 2006.

8

Sherman Preston, supra note 3.

9

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 5, 2006 is reversed.
Issued: August 17, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5