United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, REMOTE ENCODING )
CENTER, West Des Moines, IA, Employer
)
__________________________________________ )
R.B., Appellant

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

Docket No. 08-1775
Issued: July 17, 2009

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 June 10, 2008 appellant, through her attorney, filed a timely appeal from the
January 14, 2008 decision of an Office of Workers’ Compensation Programs’ hearing
representative who denied an increased schedule award to her upper extremities. Pursuant to
C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merit issue of the case.
ISSUE
The issue is whether appellant has established more than five percent impairment to each
upper extremity, for which she previously received schedule awards.

FACTUAL HISTORY
This case has previously been before the Board. The facts of this case as set out in the
previous Board decisions are hereby incorporated by reference.1 The relevant facts are set forth
below.
Appellant’s occupational disease claim was accepted for bilateral carpal tunnel syndrome
for which she underwent surgery. She underwent a left carpal tunnel release on November 2,
1995 and a right carpal tunnel release on November 10, 1995. On June 25, 1998 appellant filed a
claim for a schedule award. By decision dated August 27, 2002, the Office issued a schedule
award for a five percent impairment of the right upper extremity and a five percent impairment
of both the left upper extremities. By decision dated March 17, 2003, it reviewed the case on the
merits, but denied greater impairment. In a decision dated July 27, 2004, the Board found that
appellant did not have more than five percent impairment of each upper extremity.2
Additional evidence was submitted by appellant to the Office. In a report dated
November 9, 2004, Dr. Jugal Raval, a neurologist, indicated that electrophysiological findings
showed evidence of bilateral carpal tunnel syndrome, left side worse than right side.
In a February 14, 2005 opinion, Dr. Samir Wahby, an orthopedic surgeon, noted that he
had treated appellant for carpal tunnel syndrome for many years. Appellant had residual bilateral
carpal tunnel syndrome and 25 percent hand impairment based on 5 percent impairment of
thumbs, 10 percent impairment of index fingers and 10 percent impairment of middle fingers
pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed. 2001), page 495. In an October 23, 2005 report, the Office
medical adviser discussed Dr. Wahby’s February 14, 2005 report and noted that it contained no
findings on examination or history regarding her status on February 14, 2005. Dr. Wahby made
only generic comments regarding symptoms in the hands and digits. The medical adviser
concluded that the report was insufficient to establish greater impairment.
By decision dated January 11, 2006, the Office found that appellant had not submitted
sufficient evidence to warrant modification of the prior schedule award.
Appellant requested reconsideration and provided further medical reports.
On December 30, 2005 Dr. Raval conducted an electromyographic and nerve conduction
study (EMG/NCS). The testing showed evidence of moderately severe carpal tunnel syndrome
on the left and, on the right, a mild ulnar motor neuropathy at the wrist. Dr. Raval further noted
that the EMG examination was negative for denervation.
On September 25, 2006 the Office requested that the Office medical adviser review the
record to determine whether appellant had sustained increased impairment. On October 4, 2006
1

Docket No. 03-1629 (issued July 27, 2004); Docket No. 02-1197 (issued February 3, 2003); and Docket No.
99-2408 (issued November 2, 2001).
2

Docket No. 03-1629 (issued July 27, 2004).

2

the Office medical adviser noted that the only new evidence was Dr. Raval’s December 30, 2005
report on EMG and NCS studies. He noted that this report did not specifically address
impairment or allow for a revision of the previous schedule award.
By decision dated November 7, 2006, the Office denied modification of the schedule
award decision.
Appellant requested reconsideration by letter dated October 5, 2007 and forwarded
additional medical evidence.
In an August 29, 2007 report, Dr. Raval indicated that the new electrophysiological
findings showed evidence of mildly severe carpal tunnel syndrome on both sides. Appellant had
a mild sensory neuropathy in the left hand as well as ulnar motor neuropathy on both side.
In a September 12, 2007 report, Dr. Lincoln Wallace, a Board-certified family
practitioner, listed his impression as residual bilateral carpal tunnel syndrome. On physical
examination, he noted that appellant had approximately 25 percent range of motion in her neck,
but good motion of her shoulders, elbows, forearms, wrists, fingers and thumbs. Dr. Wallace
noted that the Tinel’s sign was positive over both wrists and negative over both elbows. The
Phalen’s test was positive bilaterally in about 10 seconds. Dr. Wallace observed well-healed
scars consistent with her previous carpal tunnel releases. He advised that appellant’s diagnostic
studies showed evidence of mild carpal tunnel syndrome bilaterally were almost identical to
previous studies done in 1995 and 1997, both preoperatively and postoperatively. Dr. Wallace
provided injections to both carpal tunnels.
In a December 2, 2007 report, the Office medical adviser noted that the EMG/NCS study
of August 29, 2007 was not useful in making an impairment rating. The September 12, 2007
report of Dr. Wallace provided no impairment rating or documentation that would allow a new
upper extremity impairment ratings.
In a January 14, 2008 decision, the Office found that the medical evidence was
insufficient to establish that appellant had greater impairment of her upper extremities.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act 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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

3

uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.5
The fifth edition of the A.M.A., Guides, regarding carpal tunnel syndrome, provides:
“If, after optimal recovery time following surgical decompression, an individual
continues to complain of pain, paresthesias and/or difficulties in performing
certain activities, three possible scenarios can be present -(1) Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual carpal tunnel
syndrome is rated according to the sensory and/or motor deficits as
described earlier.
(2) Normal sensibility and opposition strength and abnormal sensory
and/or motor latencies or abnormal [electromyogram] testing of the thenar
muscles: a residual carpal tunnel syndrome is still present and an
impairment rating not to exceed five percent of the upper extremity may
be justified.
(3) Normal sensibility (two point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”6
The Board has held that, in accordance with the fifth edition of the A.M.A., Guides,
impairment arising from carpal tunnel syndrome should be rated on motor and sensory deficits
only.7 The A.M.A., Guides provide that, in compression neuropathies, additional impairment
values are not given for decreased motion in the absence of a complex regional pain syndrome.8
Carpal tunnel syndrome is an entrapment/compression neuropathy of the median nerve.9
ANALYSIS
Appellant previously received a schedule award for a five percent impairment to each
upper extremity. Accordingly, the issue is whether she has submitted sufficient medical
evidence to establish an increased impairment. The Board noted that the diagnostic studies
obtained for Dr. Ravel do not support a greater impairment. Dr. Raval did not make any findings
with regard to appellant’s impairment for schedule award purposes. Rather, he merely noted that
the studies showed residuals of the accepted conditions. The Office medical adviser reviewed
5

See id.; Jacqueline Harris, 54 ECAB 139 (2002).

6

A.M.A., Guides 495, Silvester DeLuca, 53 ECAB 500 (2002).

7

Id. at 494; Robert V. Disalvatore, 54 ECAB 351 (2003).

8

Id. at 494, see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 4 (June 2003); Kimberly M. Held, 56 ECAB 670 (2005).
9

Id. at 492.

4

Dr. Raval’s reports and commented that the tests did not merit a finding of greater impairment.
Similarly, Dr. Wallace did not provide any findings with regard to the A.M.A., Guides. The
Office medical adviser concluded that there was no evidence to support increase in appellant’s
impairment rating. Dr. Wahby’s opinion is largely repetitive of earlier reports that had already
been considered by the Office. His contention that appellant had 25 percent impairment is not
sufficient to warrant an increase in the schedule award. The Board notes that Dr. Wahby did not
distinguish between appellant’s two upper extremities, finding a 25 percent total hand
impairment without discussing any measurable differences between the two hands. Although
Dr. Wahby attached some test results from Dr. Raval, he did not provide a rationalized
explanation to support increased impairment or show his application of the A.M.A., Guides in
arriving at the percentage of impairment. The Office medical adviser noted that Dr. Wahby
failed to provide a medical history or physical examination findings. Accordingly, the Board
finds that appellant has not met her burden to establish that she has greater impairment of either
upper extremity.
CONCLUSION
The Board finds that appellant has not established that she is entitled to more than a five
percent impairment to each upper extremity, for which she had previously received schedule
awards.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 14, 2008 is affirmed.
Issued: July 17, 2009
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
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Steve Burt, for the appellant
Office of Solicitor, for the Director

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Docket No. 12-1174
Issued: July 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

On May 7, 2012 appellant, through her representative, filed a timely appeal from a
November 14, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) which
found that she received an overpayment of compensation. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly found that appellant received a $14,720.15
overpayment of compensation from March 13, 2010 to January 15, 2011; (2) whether it properly
determined that she was at fault in creating the overpayment of compensation, thereby
precluding waiver of recovery of the overpayment; and (3) whether OWCP properly recovered
the overpayment by withholding $200.00 from continuing compensation payments.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In a July 20, 2009 decision, the Board
affirmed the denial of appellant’s claim for compensation from February 1, 2001 to
December 8, 2004 as she failed to establish that her disability was causally related to the
accepted injury.2 The facts of the case as set forth in the Board’s prior decision are incorporated
herein by reference.3 Appellant returned to work full time at limited duty. Her salary at the time
of the injury was $44,710.40.
On September 30, 2009 appellant filed a Form CA-7 claim for compensation for nine
hours from September 23 to 25, 2009. In a Form CA-7a time analysis, she used 2.01 hours of
leave without pay on September 23, 2009, 3.49 hours on September 23, 2009 and 3.5 hours on
September 25, 2009. Appellant noted a loss of work hours beginning September 23, 2009 under
the National Reassessment Process (NRP). In a supplemental rolls payment worksheet, OWCP
noted that on September 23, 2009 the employing establishment could not provide full-time work
for appellant due to NRP. It found that appellant’s partial disability began on that date.
In an April 2, 2010 telephone memorandum, the employing establishment confirmed that,
from September 23, 2009 to March 26, 2010, appellant had wage loss of 361.48 hours or 14
hours a week. This averaged 25.81 to 26 hours lost every two weeks
In an April 20, 2012 memorandum, OWCP noted that appellant currently worked an
average of 2.8 hours a day. To facilitate her receipt of compensation, it calculated her hours of
wage loss at an average of 5.2 hours a day. This represented a 36 percent wage-earning capacity
(WEC). It was recommended that appellant be placed on the periodic rolls. OWCP found her
pay rate when disability recurred to be $1,032.38 and the current pay ray for the job held when
injured to be $985.23. Based on the average 2.8 hours worked a day, appellant’s actual weekly
earnings were $351.54. Her four-week entitlement to compensation would be $1,982.16.
In an April 27, 2010 letter, OWCP notified appellant that since her wage loss had been
consistent it was placing her on the periodic rolls and she no longer had to file CA-7 forms to
claim compensation biweekly. Appellant was advised of the temporary WEC determination,
representing the difference between her actual earnings and what she could have earned if not
injured. She was notified that she would receive periodic roll payments of $1,982.16 every four
weeks after an initial payment of $2,052.95. OWCP also noted:
“As this placement is a temporary wage-earning capacity (WEC), you must notify
this office immediately should your hours increase. This is extremely important
so that you will not be overpaid in compensation.”

2

On December 15, 2004 appellant, a carrier, filed an occupational disease claim for a right knee condition due to
walking and climbing stairs at work. She did not stop work. On December 29, 2005 OWCP accepted the claim for
aggravation of osteoarthritis of the right knee and aggravation of occupational bursitis of the right knee.
3

Docket No. 09-226 (issued July 20, 2009).

2

On May 5, 2010 appellant was offered a limited-duty assignment as a modified city
carrier effective May 10, 2010. The salary of the position was $53,684.00 a year with a tour of
duty from 7:30 a.m. to 1:30 p.m. and rotating days off.
In a May 21, 2010 telephone memorandum, the employing establishment contacted
OWCP to advise that appellant had accepted the limited-duty job offer with an increase in work
hours. Appellant did not work a fixed schedule. OWCP noted that she was recently placed on a
WEC based on averaging 2.8 hours of work a day for the prior six months.
On October 21, 2010 the employing establishment offered appellant a limited-duty
assignment as a letter carrier effective that day. The tour of duty was from 11:00 a.m. to
2:30 p.m. with rotating days off. The salary in the position was $54,619.00. Appellant accepted
the job on October 25, 2010.
In an October 28, 2010 letter, the employing establishment notified OWCP that appellant
continued to be paid every 28 days under WEC determination. Appellant’s actual work hours,
however, had increased since May 6, 2010. The employing establishment noted that her hours
worked were not consistent but were up to seven hours a day.
In a January 10, 2011 telephone memorandum, appellant’s representative contacted
OWCP to advise that appellant was concerned about an overpayment. The representative
requested that the loss of WEC be reviewed and adjusted based on the increase in her work
hours.
In letters dated January 10 and March 4, 2011, OWCP requested that the employing
establishment provide information on the total hours worked by appellant from April 12, 2010 to
January 15, 2011. It advised appellant of having been overpaid if she worked more hours than
contemplated in the April 27, 2010 temporary WEC determination. OWCP deleted her payment
under the periodic rolls and instructed her to file CA-7 forms to claim actual time lost due to no
available work.
On March 7, 2011 the employing establishment submitted an hourly record. Appellant
worked a total of 964.15 hours from April 12, 2010 to January 14, 2011. An OWCP
compensation payment history sheet noted that, from March 13 to April 10, 2010, she was paid
$2,052.95; and for the 10 monthly payments on the periodic rolls, from April 11 to January 15,
2011, she received compensation of $1,982.16 each period. The total net compensation paid to
appellant, from March 13, 2010 to January 15, 2011, was $21,874.55.
In a March 23, 2011 overpayment memorandum, OWCP noted that on April 27, 2010
appellant was placed on a temporary WEC beginning March 13, 2010. It was based on actual
average earnings at work of 2.8 hours a day. As appellant’s actual work hours were increased
and greater than the average hours used under the temporary WEC, an overpayment was created.
On January 10, 2011 she was removed from the periodic rolls. OWCP determined that, for the
period March 13, 2010 to January 15, 2011, appellant was receiving compensation of $21,874.55
but was only entitled to $7,154.40, which created an overpayment of $14,720.15.
On April 20, 2011 OWCP made a preliminary determination that appellant received a
$14,720.15 overpayment of compensation from March 13, 2010 to January 15, 2011. The
3

overpayment was created as she sporadically lost time from work due to the employing
establishment’s inability to provide her with full-time limited duty. While her wage loss varied,
OWCP used an average of 2.8 hours a day to determine her wage-loss entitlement. As of
March 13, 2010, appellant was placed on the periodic rolls based on her temporary WEC. The
overpayment occurred because she was paid compensation under the assumption that she worked
an average of 2.8 hours a day when she was actually averaged at least 5.5 hours a day. From
March 13, 2010 to January 15, 2011 appellant was paid $21,874.55; but she was only entitled to
compensation of $7,154.40, which created an overpayment of $14,720.15. OWCP found that
she was at fault in creating the overpayment because she accepted payments she knew or should
have known to be incorrect. Appellant was notified as to her right to a prerecoupment hearing
Appellant requested a prerecoupment hearing that was held on August 15, 2011. In
response to questions by OWCP’s hearing representative, she stated that she knew of the
overpayment of compensation but that she used the money to pay for dental work and to support
her children in college. On May 10, 2011 appellant submitted an overpayment questionnaire and
listed total monthly income of $3,300.00 and monthly expenses of $3,304.00. She listed a
monthly rent or mortgage of $550.00, food of $600.00, clothing of $400.00, utilities of $400.00,
other expenses of $500.00, credit card payment of $256.00 and a car loan payment of $598.00.
In a September 9, 2011 letter, appellant’s representative asserted that appellant was not at fault in
creating the overpayment and that it would create a hardship to repay the overpayment as
appellant relied to her detriment on the income that she was overpaid. Appellant listed additional
expenses of a dental bill of $7,616.00; automobile insurance of $420.00 a month for 10 months;
dental expenses of $100.00 a month; college housing expenses for her two children of $200.00 a
month; storage expenses of $134.00 a month; a master card bill of $35.00 month; a master card
bill of $25.00 per month; and student loans of $58.00 per month. She listed funds including
cash, a checking account balance and a savings account balance of $350.00. On September 8,
2011 appellant submitted a new overpayment questionnaire noting income of $3,400.00 and
expenses of $3,551.00. No additional documentation regarding her monthly expenses was
received.
In a November 14, 2011 decision, OWCP’s hearing representative finalized the
overpayment in the amount of $14,720.15 for which appellant was found at fault. The
overpayment occurred because appellant was paid compensation based on a temporary WEC
determination of 2.8 hours of work a day when she actually averaged at least 5.5 hours a day.
The compensation paid to her during the period totaled $21,874.55, but she was only entitled to
$7,154.40. The hearing representative noted that, at the prerecoupment hearing, she
acknowledged that appellant was being overpaid. The April 27, 2010 letter advised appellant
that she was in receipt of wage-loss compensation based on the assumption she worked 2.8 hours
a day and to immediately contact OWCP should her hours increase. Appellant knew or should
have known of her receipt of multiple incorrect payments after her work hours increased.
Recovery of the overpayment was directed by withholding $200.00 from her continuing
compensation payments. The hearing representative noted that appellant did not submit
supporting documentation pertaining to her May 20 and September 8, 2011 listing of monthly
income and expenses; therefore, minimum collection guidelines were followed to set the rate of
recovery.

4

LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.4
When an overpayment has been made to an individual because of an error of fact or law,
adjustments shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.5
ANALYSIS -- ISSUE 1
On September 23, 2009 appellant began to sporadically lose time from work on a daily
basis due to the employing establishment’s inability to provide her with limited-duty work on a
full-time basis under NRP. OWCP determined her wage loss based on an average 2.8 hours of
work a day. As of March 13, 2010, it placed appellant on the periodic rolls to reflect her
temporary WEC. The April 27, 2010 letter advised her how her wage-loss benefits were
calculated and of her responsibility to notify OWCP immediately should her actual work hours
increase.
On May 21, 2010 the employing establishment informed OWCP that appellant accepted a
limited-duty job offer which increased her work hours. Appellant’s representative contacted
OWCP to inquire if appellant was being properly paid. OWCP developed the evidence and
determined that an overpayment occurred because appellant was paid compensation under the
temporary WEC determination based on the assumption of 2.8 hours work a day; but she actually
averaged at least 5.5 hours a day. Appellant was paid $2,052.95 for the period March 13 to
April 10, 2010 and received 10 periodic roll payments of $1,982.16 from April 11, 2010 to
January 15, 2011, for total wage-loss compensation of $21,874.55. As her actual hours worked
increased during the period, she was only entitled to compensation benefits of $7,154.40, which
created an overpayment of $14,720.15.
OWCP properly determined that from March 13, 2010 to January 15, 2011 appellant
received a $14,720.15 overpayment because she was paid compensation under a temporary WEC
based on an average of 2.8 hours work a day when actually averaging about 5.5 hours a day.
Appellant did not dispute that she received the overpayment in question or the amount. OWCP
explained how the overpayment occurred and provided this information to her with the
preliminary notice of overpayment. The Board finds that it properly determined the fact and
amount of the overpayment for the period March 13, 2010 to January 15, 2011.
LEGAL PRECEDENT -- ISSUE 2
Under OWCP regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.6 The fact that the overpayment was the result of error by OWCP or another
4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 10.433(a).

5

government establishment does not by itself relieve the individual who received the overpayment
of liability for repayment if the individual also was at fault for receiving the overpayment.7 Each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she received from OWCP are proper. The recipient must show good faith
and exercise a high degree of care in reporting events that may affect entitlement to or the
amount of benefits. A recipient who has done any of the following will be found to be at fault
with respect to creating an overpayment: (1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known to be incorrect (this provision applies only to the overpaid
individual).8
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.9
ANALYSIS -- ISSUE 2
OWCP applied the third standard in determining that appellant was at fault in creating the
overpayment, that she accepted payments that she knew or should have known to be incorrect.
The Board finds that she was at fault in the creation of the overpayment.
The record reflects that appellant was placed on the periodic rolls in receipt of wage-loss
compensation based on the assumption that she worked 2.8 hours a day. OWCP notified her on
April 27, 2010 that to facilitate her receipt of compensation, a temporary WEC determination
was made based on the assumption of 5.2 hours wage-loss a day. Appellant was specifically
advised:
“As this placement is a temporary wage-earning capacity (WEC), you must notify
this office immediately should your hours increase. This is extremely important
so that you will not be overpaid in compensation.”
As of May 5, 2010, appellant accepted a limited-duty assignment as a modified city
carrier effective May 10, 2010 and the hours she worked increased. On October 21, 2010 she
accepted another limited-duty assignment effective October 25, 2010 with an increase in salary,
working in excess of 2.8 hours a day. As of January 10, 2011, when appellant’s representative
notified OWCP about the increase in work hours and of her concern of overpayment, she was
removed from the periodic rolls and advised to submit Form CA-7 claims for actual hours of
work lost.

7

Id. at § 10.435(a).

8

Supra note 6.

9

Id. at § 10.433(b).

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The Board finds that the record supports that appellant knew or should have known that
she received incorrect payments of compensation based on the increase in actual hours worked a
day. At the hearing, appellant acknowledged that she knew of the overpayment of compensation
but used the money to pay for dental work and to support her children at college. While
appellant noted that she attempted to contact OWCP concerning her receipt of benefits, she
accepted multiple incorrect periodic roll payments of compensation after a significant increase in
the hours she actually worked to approximately 5.5 hours a day and for which she received
increases in salary. Even though OWCP may have been negligent in continuing periodic roll
payments after notice from the employing establishment that appellant’s hours had increased,
this does not excuse her acceptance of the payments she knew or should have known to be
incorrect.10 Since it is determined that appellant is at fault in the creation of the overpayment, it
is not subject to waiver.
LEGAL PRECEDENT -- ISSUE 3
Section 10.411(a) of OWCP’s implementing federal regulations provides that when an
overpayment of compensation has been made to an individual entitled to further payments, the
individual shall refund to OWCP the amount of the overpayment or, if no refund is made, OWCP
shall decrease later payments of compensation, taking into account the probably extent of future
payments, the rate of compensation, the financial circumstances of the individual and other
relevant factors, so as to minimize any hardship.11
The Board has held that when an individual fails to provide the requested information on
income, expenses and assets, OWCP should follow minimum collection guidelines, which state
in general that government claims should be collected in full and that, if an installment plan is
accepted, the installments should be large enough to collect the debt promptly.12
ANALYSIS - ISSUE 3
OWCP’s hearing representative found that, although appellant submitted OWCP-20
forms listing her monthly income and expenses, she did not submit any supporting
documentation to substantiate the amounts claimed on the forms. He noted that her
responsibility under the federal regulations to submit such information, citing section 10.438
which provides that the information is used to set the amount of repayment, if necessary, and that
failure to submit the requested information shall result in the denial of waiver.13 In turn, the
procedure manual provides that if a claimant is being paid compensation or is due accrued
benefits, the debt should be recovered as quickly as possible.14 The hearing representative noted
10

See Rosemary A. Kayes, 54 ECAB 373 (2003); Russell E. Wageneck, 46 ECAB 653 (1995).

11

20 C.F.R. § 10.441(a). See J.S., 58 ECAB 515 (2007).

12

See Harold F. Franklin, 57 ECAB 387 (2006).

13

20 C.F.R. § 10.438.

14

See Frederick Arters, 53 ECAB 397 (2002), citing Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.4(c)(2) (September 1994).

7

that appellant was in receipt of partial disability compensation benefits as her work hours varied
and directed recovery in the amount of $200.00 every 28 days from her continuing benefits. The
Board finds that he did not abuse his discretion in this matter. Consideration was given to the
evidence of record, the applicable federal regulations and appropriate sections of the procedure
manual.
CONCLUSION
The Board finds that appellant received an overpayment of $14,720.15 in compensation
from March 13, 2010 to January 15, 2011 for which she was at fault.
ORDER
IT IS HEREBY ORDERED THAT the November 14, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
RALPH H. JOHNSON MEDICAL CENTER,
Charleston, SC, Employer
__________________________________________

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

Docket No. 07-964
Issued: August 1, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 26, 2007 appellant filed a timely appeal from a November 22, 2006 merit
decision of the Office of Workers’ Compensation Programs. 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 appellant met his burden of proof to establish that he had any
continuing residuals or disability causally related to the accepted elevated blood pressure
condition.
FACTUAL HISTORY
On February 6, 2003 appellant, then a 55-year-old human resources specialist, filed a
Form CA-2, occupational disease claim, alleging that harassment and an excessive workload
caused anxiety, dizziness, nausea and elevated blood pressure. He did not stop work.

By letters dated February 20, 2003, the Office advised appellant of the type of evidence
needed to develop his claim and requested that the employing establishment respond. In an
undated statement, appellant stated that his increased blood pressure and anxiety were caused by
an excessive workload and harassment by Cheryl Cote who scolded him three times in one week
in September 2002 concerning his job duties, assigned him menial job duties, made negative
statements about him and slammed his office door open when he was trying to work. He stated
that he missed two and a half days work and continued to be dizzy for several days after. In a
March 22, 2003 statement, appellant alleged that he had been overloaded with duties since he
was hired in March 1998 and had excessive overtime but was refused overtime pay or
compensatory time and that, since a reorganization in April 2002, he had excessive pressure to
perform from his supervisor, Maurice Ponce, and described events that occurred in
September 2002 in which he was harassed by Ms. Cote. He admitted that he had self-increased
his blood pressure medication and submitted a diary prepared for an Equal Employment
Opportunity Commission claim which listed allegations of harassment and discrimination.
The employing establishment controverted the claim, and submitted employing
establishment treatment notes dated September 30, 2002, signed by Teresa M. Sullivan, a nurse
practitioner, Donald W. Vann, a physician’s assistant, and Barbara C. Stoney, R.N., that reported
a history that appellant was complaining of elevated blood pressure with dizziness. The reports
advised that appellant admitted to excessive caffeine intake and stated that he checked his blood
pressure and had increased his medication to a double dose a few days previously but that the
elevation had not improved. Blood pressure was initially measured at 144/100 and later in the
day at 140/90. It was recommended that appellant see his personal physician. In a March 7,
2003 report, Mr. Vann again noted that appellant had self-increased his blood pressure
medication and diagnosed uncontrolled hypertension and excessive caffeine intake. Mr. Vann
advised that, “based on the limited interaction and follow-up, I am only able to say that, on that
specific day, September 30, 2002, [appellant] appeared somewhat anxious [and] had elevated
blood pressure.... I have no personal or objective way of knowing if these symptoms occurred as
a direct result of job stressors, nor can I say it was not.” On April 20, 2003 appellant advised
that he did not have excessive caffeine intake.
On September 3, 2003 the Office referred appellant to Dr. John V. Custer, a Boardcertified psychiatrist, for a second opinion evaluation. Dr. Custer was furnished with a set of
questions and a statement of accepted facts that included factors of employment that appellant
was harassed by Ms. Cote who pushed and slammed a door open while he was trying to work.
In an October 2, 2003 report, he noted his review of the statement of accepted facts and medical
record. Dr. Custer reported appellant’s complaints of discrimination, harassment and overwork
at the employing establishment and that he stated that he had elevated blood pressure since 1993.
Blood pressure was measured at 140/92. Dr. Custer diagnosed an occupational problem,
narcissistic personality traits, hypertension and gout. He advised that appellant did not have an
emotional condition and that his slight elevation in blood pressure was caused by the accepted
employment incidents. Dr. Custer opined that appellant’s blood pressure was not a problem at
the time of his examination. In a work capacity evaluation dated October 6, 2003, he advised
that appellant could perform his regular job duties for eight hours a day. Following an Office
request for clarification, by report dated October 29, 2003, Dr. Custer advised that appellant’s
work-related increase in blood pressure was a temporary aggravation that had ceased, probably
the day after the September 30, 2002 examination.
2

On November 13, 2003 the Office accepted that appellant sustained an elevation of blood
pressure and advised that he could claim disability on a Form CA-7 claim form. In a separate
decision also dated November 13, 2003, the Office terminated entitlement to future
compensation for wage loss and medical benefits, effective that day. Appellant requested a
hearing on December 8, 2003, that was held on January 25, 2005. At the hearing, he testified
that he continued to work full time and argued that the Office decision was erroneous because his
blood pressure continued to be elevated and his medication had been increased; therefore, the
condition was permanently aggravated by employment factors. Appellant voluntarily retired
effective March 2, 2005 but continued as a contractor at the employing establishment until
July 29, 2005.
On June 29, 2005 the Office again referred appellant to Dr. Custer for an appointment on
July 14, 2005, and furnished him with a set of questions. By letter dated July 19, 2005, the
Office proposed to suspend appellant’s compensation because he failed to attend a scheduled
medical examination. In an August 12, 2005 decision, the suspension was made final. In a letter
dated July 29, 2005, received by the Office on August 15, 2005, appellant advised that he did not
attend the scheduled medical appointment because he could not leave work. The Office twice
rescheduled appointments with Dr. Custer. On September 1, 2005 appellant requested a hearing
regarding the August 12, 2005 decision.
By report dated September 21, 2005, Dr. Custer advised that he had reexamined appellant
that day and again reported the complaints regarding appellant’s work environment and a 10- to
15-year history of elevated blood pressure. He reiterated his diagnoses and in answer to specific
Office questions advised:
“1. Please explain how you concluded that [appellant’s] elevated blood pressure
was temporary in light of the fact that he had doubled his blood pressure
medication following the work injury and continues to take the increased dosage.
“Answer: Given that [his] work situation was temporary (he indicated that in
October of 2003 the ‘difficult people’ in his department had retired) and that he
was using excessive caffeine around the time of the work injury, it remains quite
reasonable to propose that his increase in blood pressure was temporary, as he had
been removed from the difficult people in question and that he could easily reduce
or eliminate the excessive caffeine which could have been contributing to his
higher blood pressure.
“2. Would [appellant] continue to suffer the symptoms of high blood pressure if
he ceased taking his medication?
“Answer: Given that [he] has had high blood pressure for 10 to 15 years, well
before he encountered the difficulties at the [employing establishment], it is
highly likely that his high blood pressure is preexisting and he would have
symptoms of high blood pressure if he stopped taking his medication.

3

“3. Has [appellant] returned to his preinjury state with respect to elevated blood
pressure, considering the fact that [he] continues to take increased doses of his
blood pressure medication?
“Answer: [His] blood pressure appears to still be elevated even though he retired
from the [employing establishment] six months ago. Therefore, one cannot make
any connection between his current blood pressure and the work injury of
September 2002. We must then conclude that he has returned to his preinjury
state, as he had high blood pressure before the work injury, and he continues to
have high blood pressure even after retiring from the [employing establishment].”
In an attached work capacity evaluation, Dr. Custer advised that appellant could do his usual job.
In a decision dated October 13, 2005, the Office found that appellant’s elevated blood pressure
caused by a September 25, 2002 employment incident had ceased.
On November 9, 2005 appellant requested a hearing that was held on October 17, 2006.
In a decision dated November 22, 2006, an Office hearing representative reversed the August 12,
2005 decision and affirmed the October 13, 2005 decision.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act1 the term “disability” is defined as
incapacity, because of employment injury, to earn the wages that the employee was receiving at
the time of injury.2 Disability is thus not synonymous with physical impairment which may or
may not result in an incapacity to earn the wages. An employee who has a physical impairment
causally related to a federal employment injury but who nonetheless has the capacity to earn
wages he or she was receiving at the time of injury has no disability as that term is used in the
Act,3 and whether a particular injury causes an employee disability for employment is a medical
issue which must be resolved by competent medical evidence.4 Whether a particular injury
causes an employee to be disabled for work and the duration of that disability, are medical issues
that must be proved by a preponderance of the reliable, probative and substantial medical
evidence.5
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he had
any continuing disability due to his accepted elevated blood pressure condition after

1

5 U.S.C. §§ 8101-8193.

2

See Prince E. Wallace, 52 ECAB 357 (2001).

3

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

4

Donald E. Ewals, 51 ECAB 428 (2000).

5

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, supra note 4.

4

November 3, 2003.6 In a well-rationalized comprehensive report dated September 21, 2005,
Dr. Custer noted his findings in October 2003 and explained that, given appellant’s 10- to
15-year history of elevated blood pressure, well before he encountered problems at the
employing establishment in 2002, because the difficult people had retired and because appellant
himself had retired, his current elevated blood pressure was not caused by the September 2, 2002
employment injury. Appellant has submitted no medical evidence whatsoever to support that
any blood pressure condition is employment related, to show that he needs an increased dosage
of blood pressure medication, or that he has any disability related to this condition.7 The medical
evidence of record, therefore, does not establish that appellant had an employment-related
disability or condition after November 3, 2003.
CONCLUSION
The Board finds that appellant had no employment-related disability after
November 13, 2003.

6

The Board notes that after the Office has determined that an employee has disability causally related to his or
her federal employment, it may not terminate compensation without establishing that the disability has ceased or that
it is no longer related to the employment. Kenneth R. Burrow, 55 ECAB 157 (2003). In this case, however,
appellant did not file a Form CA-7 claim for compensation or request leave buy back for the two and a half days he
missed work in September 2002. He thus did not receive disability compensation and did not request
reimbursement for medical expenses. Appellant therefore retained the burden of proof to establish that he had any
continuing disability after November 13, 2003. See Shelly A. Paolinetti, 52 ECAB 391 (2001).
7

Causal relationship is a medical issue and the medical evidence required to establish a causal relationship is
rationalized medical evidence. Donna L. Mims, 53 ECAB 730 (2002). Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. Leslie C. Moore, 52 ECAB
132 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 22, 2006 be affirmed.
Issued: August 1, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

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Appearances:
Joanne M. Wright, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1544
Issued: April 7, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On August 24, 2020 appellant, through counsel, filed a timely appeal from a March 4, 2020
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated June 12, 2019, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.3

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.

3
The Board notes that, following the March 4, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 14, 1995 appellant, then a 36-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed an emotional condition due to being
harassed by her supervisor. She noted that she first became aware of her emotional condition and
realized its relation to factors of her federal employment on June 16, 1998. Appellant stopped
work on June 16, 1998 and returned to full duty on September 12, 1998. OWCP accepted her
claim for post-traumatic stress disorder (PTSD). Appellant stopped work again on June 3, 2000.
OWCP paid her wage-loss compensation on the periodic rolls, effective October 6, 2002.
On March 2, 2015 appellant returned to work in the private sector as a caretaker in a group
home. By decision dated May 26, 2015, OWCP found that the actual wages of the caretaker
position fairly and reasonably represented her wage-earning capacity. It noted that, because
appellant’s earnings met or exceeded the current wages of the job held when injured, her wageloss compensation benefits had been terminated. OWCP indicated that the decision did not affect
coverage of her ongoing medical benefits.
On January 29, 2016 appellant filed a notice of recurrence (Form CA-2a) claiming
disability from work commencing January 11, 2016.4 She alleged that after returning to work in
March 2015 she had difficulty sleeping, getting along with her family, and keeping up with
personal care. Appellant described that on January 11, 2016 she had a panic attack and stopped
work.
In a March 22, 2016 development letter, OWCP informed appellant that, in order to be
entitled to compensation, her recurrence of disability claim must be treated as a claim for
modification of the previously established May 26, 2015 loss of wage-earning capacity (LWEC)
determination. It advised her of the three criteria necessary for modifying such decisions and of
the evidence necessary to establish her claim. OWCP afforded appellant 30 days to provide
evidence substantiating that she had met any of the criteria.
Appellant submitted letters dated April 7 and 28, 2016 by Dr. Robert Perovich, a Boardcertified psychiatrist, who indicated that he had treated her since November 20, 2001 for PTSD
resulting from a supervisor that was verbally abusive towards her at work. Dr. Perovich reported
that her accepted injury was still present and that she was disabled from work. He recounted that
appellant had made a recent attempt to go back to work, but due to her psychiatric difficulties, she
was advised to stop work on January 11, 2016.
In an April 12, 2016 letter, Dr. Craig Fabrikant, a psychologist, recounted that appellant
was seen for weekly psychotherapy sessions since November 2015 for treatment of PTSD that
resulted from a supervisor who verbally abused her at work. He indicated that, since then, she had
The claim form indicated that the date of recurrence as “9-00-2015” and the date that appellant stopped work as
January 11, 2016.
4

2

suffered from symptoms of depression and anxiety. Dr. Fabrikant opined that these symptoms had
interfered with appellant’s ability to work and made it impossible for her to maintain any type of
regular employment.
By decision on May 2, 2016, OWCP denied modification of its May 26, 2015 LWEC
determination, noting that the evidence submitted was insufficient to establish any of the three
criteria necessary to warrant modification of a formal LWEC decision.
On May 30, 2016 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. A hearing was held on January 24, 2017. Appellant clarified
that there was no specific incident that occurred on January 11, 2016, but that she had been having
problems maintaining her current job due to her work-related PTSD injury.
In a May 23, 2016 letter, Dr. Fabrikant indicated that he had recommended that appellant
leave her job in January 2016 due to her level of stress. He recounted that on January 11, 2016
she experienced a major panic attack at work, which significantly increased her levels of stress
and anxiety. Dr. Fabrikant further explained that during the summer 2015 appellant’s stress and
anxiety levels got to the point where she had to take a lot of time off work. He recommended that
she remain out of work indefinitely.
Appellant submitted additional letters dated May 27, 2016 through February 21, 2017 by
Dr. Perovich who described her PTSD diagnosis and work-related injury. Dr. Perovich reported
that, since working at a group home, she had to take periodic days off work due to overwhelming
anxiety and panic attacks that stemmed from her work-related injury. He explained that appellant
was advised to stop work on January 11, 2016 due to her anxiety and panic attacks that had
escalated over the months and were similar to her previous PTSD symptoms.
By decision dated February 28, 2017, OWCP’s hearing representative affirmed the May 2,
2016 decision.
On December 27, 2017 appellant, through her then-representative, requested
reconsideration and submitted additional medical evidence.
OWCP received letters dated October 9 and November 8, 2017, by Dr. Perovich who
reiterated that appellant had to stop working on January 11, 2016 due to escalating anxiety and
panic attacks that stemmed from her work-related PTSD injury. Dr. Perovich also indicated that
he had reviewed previous reports dated from 2013 through 2015 and noted that they described
essentially the same symptoms that he had observed.5
By decision on July 5, 2018, OWCP denied modification of its May 26, 2015 LWEC
determination.
On March 27, 2019 appellant requested reconsideration and submitted additional evidence,
including a September 11, 2018 letter by Dr. Perovich.

5

Appellant also submitted psychological treatment notes previously of record dated September 16, 2013,
September 15, 2014, and January 9, 2015.

3

In a January 17, 2019 letter, Dr. Perovich cited to 20 C.F.R. § 10.511 regarding the
evidence required to modify a formal LWEC determination. He explained that the additional
details supporting the worsening of appellant’s PTSD included, but may not be limited to panic
attacks, flashbacks of prior stressors and stress triggers, exacerbation of stress and anxiety levels
to postdiagnostic levels, and medical symptoms. Dr. Perovich concluded that she was unable to
work because of the persistent PTSD with associated severe panic anxiety, depression, and
flashbacks, which gravely impacted her ability to function daily and required ongoing treatment
and medication.
By decision dated June 12, 2019, OWCP denied modification of its May 26, 2015 LWEC
determination. It noted that the medical evidence submitted was insufficient to explain what type
of exacerbation occurred that caused a worsening of her work-related PTSD condition and inability
to work.
On December 23, 2019 appellant requested reconsideration.
Appellant submitted a September 24, 2019 letter by Dr. Perovich, where he reported that
in June 2013 she returned to part-time work at a group home, but was only able to sporadically
maintain this employment until January 11, 2016. Dr. Perovich explained that, due to her
overwhelming anxiety stemming from her federal employment, she was advised to completely
stop work. He indicated that appellant’s anxiety and panic attacks had escalated over the previous
months and the symptoms of PTSD had continued to worsen to the extent that she was reliving the
PTSD that occurred in 1998.
In a November 11, 2019 letter, Dr. Perovich recounted appellant’s history of injury and
opined that her PTSD was never cured and continued to have a debilitating impact in her life. He
indicated that in June 2013 she began to work at a private group home, but that she was often late,
absent, and required frequent breaks because of the overwhelming anxiety stemming from the
recurrence of her disability from the trauma of her federal employment. Dr. Perovich reported that
the “specific situation” that occurred, which impacted appellant’s ability to continue working, was
the ongoing PTSD symptoms and recurrence of her disability from working at the employing
establishment. He explained that because of the ongoing recurrence of PTSD symptoms, which
led to appellant current disability, she stopped work at the group home and is not able to work
permanently.
By decision dated March 4, 2020, OWCP denied appellant’s request for reconsideration of
the merits of the claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA6 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.7

6

Supra note 2.

7

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.10 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.11
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim.
Along with her reconsideration request, appellant submitted Dr. Perovich’s November 11,
2019 letter, in which he specifically responded to the deficiencies noted by OWCP in its recent
denial of her recurrence of disability claim. In his letter, Dr. Perovich indicated that after she
began to work at a private group home in June 2013, she was often late, absent, and required
frequent breaks due to the overwhelming anxiety stemming from the recurrence of her disability
from the trauma of her federal employment. He reported that the “specific situation” that occurred,
which impacted appellant’s ability to continue working was the ongoing PTSD symptoms and
recurrence of her disability from working at the employing establishment. Dr. Perovich
specifically addressed the type of exacerbation that she had experienced, which OWCP had found
lacking in its previous decisions. He also further explained how appellant’s worsening PTSD
condition had impacted her daily life and ability to work. Thus, the Board finds that Dr. Perovich’s
November 11, 2019 report specifically addressed the deficiencies noted in OWCP’s denial of its
modification of her May 26, 2016 LWEC determination and provided further explanation to cure
those deficiencies.12 As such, Dr. Perovich report constitutes relevant and pertinent new evidence
in support of appellant’s claim for wage-loss compensation beginning January 11, 2016.

8

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
9
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
10

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

11

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

12

See L.M., Docket No. 20-1185 (issued January 13, 2021).

5

Therefore, the submission of this evidence requires reopening of her claim for merit review
pursuant to the third requirement of 20 C.F.R. § 10.606(b).13
The Board will therefore set aside OWCP’s March 4, 2020 decision and remand the case
for an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim.
ORDER
IT IS HEREBY ORDERED THAT the March 4, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 7, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

13

See J.W., Docket No. 18-0822 (issued July 1, 2020); C.H., Docket No. 17-1065 (issued December 14, 2017);
D.M., Docket No. 10-1844 (issued May 10, 2011).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, Du QUOIN POST
OFFICE, Du Quoin, IL, Employer
__________________________________________

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

Docket No. 20-1459
Issued: February 26, 2021

Case Submitted on the Record

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

JURISDICTION
On July 30, 2020 appellant, through counsel, filed a timely appeal from a May 7, 2020
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 permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On June 20, 2016 appellant, then a 62-year-old distribution window clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome
(CTS) as a result of sorting mail and packages every day for 31 years while in the performance of
duty. She noted that she first became aware of her condition and its relationship to her federal
employment on April 11, 2016. Appellant did not stop work. She submitted medical evidence in
support of her claim.
By decision dated September 2, 2016, OWCP denied appellant’s occupational disease
claim finding that the medical evidence of record failed to establish a diagnosis in connection with
the accepted employment factors. It concluded, therefore, that the requirements had not been met
to establish an injury as defined by FECA.
On May 2, 2017 appellant, through counsel, requested reconsideration and submitted new
medical evidence.
OWCP, by decision dated July 31, 2017, vacated its September 2, 2016 decision. It
determined that the newly submitted medical evidence established that appellant sustained right
CTS and bilateral ulnar neuropathy as a result of her accepted employment factors. In a letter of
even date, OWCP accepted appellant’s claim for CTS, right, and ulnar neuropathy, right and left.
On December 6, 2017 appellant filed a claim for a schedule award (Form CA-7). No
evidence was submitted in support of her claim.
OWCP, in a development letter dated December 13, 2017, requested that appellant submit
a report from her attending physician, which addressed whether she had reached maximum
medical improvement (MMI) and, if so, to evaluate permanent impairment in accordance with the
standards of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).3 It afforded her 30 days to submit the requested
information.
Appellant submitted a March 24, 2018 medical report from Dr. Neil Allen, a Boardcertified internist and neurologist. Dr. Allen utilized the A.M.A., Guides, examined appellant on
January 15, 2018, and provided findings, and reviewed electromyogram/nerve conduction velocity
(EMG/NCV) studies of the bilateral upper extremities which were performed on April 26, 2016.
Regarding impairment to the upper limbs, he referred to Table 15-23 (Entrapment/Compression
Neuropathy Impairment) on page 449, and determined that each elbow had a grade modifier of 2
for functional history (GMFH) due to significant intermittent symptoms, a grade modifier of 0 for
a normal physical examination (GMPE), and a grade modifier of 1 for clinical studies (GMCS) for
3

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

2

conduction delay (sensory). Dr. Allen indicated that appellant’s QuickDASH score was 45 based
on the functional scale. Regarding impairment to the right wrist, he again assigned a GMFH of 2
due to significant intermittent symptoms, a GMPE of 0 as it was normal, and a GMCS of 1 for
conduction delay (sensory). Dr. Allen also again indicated that appellant’s QuickDASH score was
45 based on the functional scale. He concluded that according to page 448 of the A.M.A., Guides,
“Rating Process,” appellant had three percent permanent impairment of the right wrist and three
percent permanent impairment of the right elbow, totaling six percent permanent impairment of
the right upper extremity. Dr. Allen further concluded that she had three percent permanent
impairment of the left upper extremity.
On June 30, 2018 Dr. David J. Slutsky, a Board-certified orthopedic surgeon, serving as a
district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and the medical
record. He advised that impairment rating evaluations for appellant’s right CTS and bilateral
cubital tunnel syndrome could not be performed due to a lack of information, including a detailed
history of her complaints, physical findings including strength testing, and a legible copy of the
April 2016 EMG/NCV studies. The DMA noted that he could not rate appellant’s impairment
based on an April 21, 2016 narrative summary of the EMG/NCV studies by Dr. Fakhre Alam, a
Board-certified neurologist, since the data was required to render an impairment rating.
Thereafter, OWCP received an additional copy of Dr. Alam’s April 26, 2016 EMG/NCV
studies and summary. Dr. Alam provided impressions of mild bilateral ulnar neuropathy at the
elbow, mild right CTS, and no evidence of cervical radiculopathy on the right.
On January 16, 2019 OWCP referred appellant, together with a SOAF and the medical
record, to Dr. Michael H. Ralph, a Board-certified orthopedic surgeon, for a second opinion
impairment evaluation. In a February 13, 2019 report, Dr. Ralph noted appellant’s accepted
conditions of ulnar nerve entrapment at both elbows and median nerve entrapment at the right
wrist. He reviewed her medical records, examined appellant and provided his findings. Dr. Ralph
related that he would not have accepted ulnar nerve entrapment at either elbow had he had initially
seen appellant, however, these conditions had been accepted. He explained that she had normal
ﬁndings related to ulnar nerve entrapment at the elbow. Dr. Ralph maintained that the fact that the
NCV studies may have been somewhat elevated across the elbow was not a sufficient reason to
make the diagnosis. He noted that he had ordered hundreds of NCV studies on the upper
extremities where the only thing he was really looking for was CTS because a patient’s symptoms
were only that, and yet the NCV studies across the elbow may be slightly elevated, just like in
appellant’s case, yet they really did not have symptoms. Dr. Ralph nonetheless accepted that
Dr. Allen’s conclusions were mild bilateral ulnar neuropathy at the elbow, mild right CTS, and no
evidence of cervical radiculopathy on the right. He determined that appellant had one percent
permanent loss of use of the right upper extremity due to ulnar nerve entrapment at the elbow and
one percent permanent loss of use of the same extremity due to right CTS, resulting in two percent
permanent impairment of the right upper extremity. Additionally, Dr. Ralph determined that she
had one percent permanent impairment of the left upper extremity due to left ulnar nerve
entrapment at the elbow. He advised that appellant reached MMI on the date of his impairment
evaluation.
On March 16, 2019 the DMA, Dr. Slutsky, reviewed the SOAF and medical record,
including Dr. Ralph’s February 13, 2019 findings. He disagreed with Dr. Ralph’s finding that

3

appellant had one percent permanent impairment each for right CTS and bilateral elbow ulnar
nerve entrapment. The DMA related that her electrodiagnostic studies were normal and did not
yield findings sufficient to meet the criteria set forth in the A.M.A., Guides at Appendix 15-B on
page 445 for rating an impairment due to entrapment/compression neuropathy. He thus used the
Wrist Regional Grid at Table 15-3 on page 395. Regarding impairment to the right wrist, the DMA
identified the class of diagnosis (CDX) as wrist sprain/strain, which yielded a class 0 impairment.
Using Table 15-7 on page 406, he applied a GMFH of 0 as there was no documented wrist pain
with activity and no QuickDASH score. Using Table 15-8 on page 408, the DMA applied a GMPE
of 0 as there were no palpatory findings. Using Table 15-9 on page 410, he applied a GMCS of 0
because there were no imaging studies. The DMA concluded that appellant had zero percent
impairment of the right wrist.
Regarding impairment to the right and left elbows, the DMA again identified the CDX as
a class 0 wrist sprain/strain under Table 15-3 on page 395 as there was no documented complaints
of elbow pain. He applied a GMFH of 0 as there were no difficulties with activities of daily living
(ADLs) and no QuickDASH score under Table 15-7 on page 406. The DMA applied a GMPE of
0 as there were no palpatory findings under Table 15-8 on page 408. He applied a GMCS of 0
because there were no imaging studies under Table 15-9 on page 410. The DMA concluded that
appellant had zero percent permanent impairment each for the right and left elbows.
OWCP, on July 30, 2019, requested that Dr. Ralph review the DMA’s March 16, 2019
report and determine whether he agreed with the DMA’s impairment rating using the sixth edition
of the A.M.A., Guides.
In a September 12, 2019 letter, Dr. Ralph indicated that he had reviewed the electrical
studies of the upper extremities. He advised that his prior opinion regarding appellant’s permanent
impairment and date of MMI had not changed.
On September 26, 2019 OWCP requested that its DMA clarify his March 16, 2019 report.
It requested that he review Dr. Ralph’s September 12, 2019 report and determine whether
appellant had permanent impairment of each upper extremity.
In response, on November 16, 2019, the DMA resubmitted his March 16, 2019 report
finding that appellant had zero percent impairment of the bilateral upper extremities.
By decision dated December 17, 2019, OWCP denied appellant’s claim for a schedule
award finding that she had not established permanent impairment of a scheduled member or
function of the body in accordance with the A.M.A., Guides. It found that the weight of the
medical evidence rested with the November 16, 2019 report of its DMA, Dr. Slutsky, who
determined that appellant had no permanent impairment of her bilateral upper extremities.
On December 24, 2019 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review, which was held on April 8, 2020.
By decision dated May 7, 2020, an OWCP hearing representative affirmed the
December 17, 2019 decision.

4

LEGAL PRECEDENT
The schedule award provisions 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants and the Board has concurred in such
adoption.6 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards.7
Impairment due to CTS is evaluated under the scheme found in Table 15-23 (Entrapment/
Compression Neuropathy Impairment) and accompanying relevant text.8 In Table 15-23, grade
modifier levels (ranging from zero to four) are described for the categories test findings, history,
and physical findings. The grade modifier levels are averaged to arrive at the appropriate overall
grade modifier level and to identify a default rating value. The default rating value may be
modified up or down by one percent based on functional scale, an assessment of impact on ADLs.9
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must identify the impairment CDX, which is then adjusted by grade modifiers
based on GMFH, GMPE, and GMCS.10 The net adjustment formula is (GMFH - CDX) + (GMPE
- CDX) + (GMCS - CDX).11 Evaluators are directed to provide reasons for their impairment
choices, including the choices of diagnoses from regional grids, and calculations of modifier
scores.12
OWCP’s 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

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
8

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

9
A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the Function
Scale score. Id. at 448-49.
10

A.M.A., Guides 383-492; see M.P., Docket No. 13-2087 (issued April 8, 2014).

11

Id. at 411.

12

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

5

of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In a March 24, 2018 report, Dr. Allen, appellant’s attending physician, examined appellant
and provided findings, and reviewed Dr. Alam’s April 26, 2016 EMG/NCV studies. He found
that appellant had reached MMI, and opined that she had six percent permanent impairment of the
right upper extremity for right CTS and right elbow ulnar neuropathy, and three percent permanent
impairment of the left upper extremity for left elbow ulnar neuropathy utilizing the sixth edition
of the A.M.A., Guides. Dr. Allen referenced Table 15-23, page 449, for Entrapment/Compression
Neuropathy Impairment and assigned a GMFH of 2, a GMPE of 0, and a GMCS of 1. He noted a
QuickDASH score of 45 based on the functional scale for each elbow and right wrist. Dr. Allen
concluded that according to page 448 of the A.M.A., Guides, “Rating Process,” appellant had six
percent right upper extremity permanent impairment and three percent left upper extremity
permanent impairment.
OWCP properly routed Dr. Allen’s report to its DMA, Dr. Slutsky.14 In a June 30, 2018
report, the DMA noted that he could not rate appellant’s permanent impairment as Dr. Alam’s
April 2016 EMG/NCV studies, which Dr. Allen relied upon in rating appellant’s impairment, were
not ratable as the data was necessary to rate impairment.
After OWCP obtained an additional copy of Dr. Alam’s April 26, 2016 EMG/NCV studies,
it referred appellant to Dr. Ralph for a second opinion. In a February 13, 2019 report, Dr. Ralph
found that appellant had one percent permanent impairment of the right elbow due to ulnar nerve
entrapment and one percent permanent impairment of the right wrist due to CTS, resulting in two
percent permanent impairment of the right upper extremity. Additionally, he found that she had
one percent permanent impairment of the left upper extremity due to left ulnar nerve entrapment
at the elbow.
In a March 16, 2019 report, the DMA reviewed Dr. Ralph’s February 13, 2019 report and
disagreed with his finding that appellant had one percent permanent impairment each for right CTS
and bilateral elbow ulnar nerve entrapment. He referenced page 445 of the sixth edition of the
A.M.A. Guides and related that her electrodiagnostic studies were normal. The DMA noted that
the EMG/NCV studies did not yield findings sufficient to meet the criteria set forth in the A.M.A.,
Guides at Appendix 15-B on page 445 for rating an impairment due to entrapment/compression
neuropathy. Thus, he utilized the Wrist Regional Grid at Table 15-3 on page 395. Regarding
impairment to the right wrist, the DMA identified the CDX as wrist sprain/strain, which yielded a
class 0 impairment. He applied GMFH of 0, GMPE of 0, and GMCS of 0 under Table 15-7, page
406, Table 15-8, page 408, and Table 15-9, page 410, respectively, which yielded zero percent
13

See supra note 7 at Chapter 2.808.6(f) (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

14

Id.

6

permanent impairment of the right wrist. The DMA used the same CDX of wrist sprain/strain to
rate permanent impairment to the right and left elbows under Table 15-3, which yielded a class 0
impairment. He then applied GMFH of 0, GMPE of 0, and GMCS of 0 under Table 15-7, Table
15-8, and Table 15-9, respectively, which yielded zero percent permanent impairment each of the
right and left elbows.
Dr. Ralph, in a September 12, 2019 supplemental report, reviewed appellant’s EMG/NCV
studies and advised that his prior opinion regarding her permanent impairment and date of MMI
remained the same.
On November 16, 2019 the DMA reiterated the findings and opinion set forth in his
March 16, 2019 report that appellant had zero percent permanent impairment of both the right and
left upper extremities.
The Board finds that the DMA’s March 16 and November 16, 2019 opinions constitute the
weight of the medical evidence with respect to the permanent impairment of appellant’s bilateral
upper extremities because he properly applied the appropriate standards of the A.M.A., Guides.15
As such, appellant has not established permanent impairment of a scheduled member or function
of the body, warranting a schedule award.
On appeal counsel contends that the DMA’s opinion is not entitled to the weight of the
medical evidence. As discussed, however, the DMA’s opinion is consistent with the provisions of
the A.M.A., Guides and thus constitutes the weight of the evidence.16
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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

15

See S.H., Docket No. 15-0845 (issued July 14, 2015).

16

See A.T., Docket No. 17-1940 (issued December 20, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the May 7, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 26, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

Docket No. 12-629
Issued: November 26, 2012

Case Submitted on the Record

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

On January 26, 2012 appellant filed a timely appeal from the December 16, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied modification
of a decision denying his claim for compensation. The appeal was docketed as No. 12-629. The
Board has duly considered the matter and finds that OWCP properly denied appellant’s claim.
Appellant has filed two other separate claims for low back conditions which allegedly
resulted from performing his distribution clerk duties of culling mail, lifting, standing, walking
and sitting. On January 26, 1988, he injured his back in a lifting incident at work. OWCP
accepted appellant’s claim for low back strain, subluxation of the L4 vertebra and aggravation of
lumbar disc disease, File No. xxxxxx361. Appellant returned to work on October 25, 1997. On
November 25, 1997 he filed an occupational disease claim. Appellant alleged that, upon
returning to work on October 25, 1997, he developed an aggravation of lumbar disc
disease/lower back and neck pain when he was required to stand, walk and sit during an eighthour work shift. He noted a date of injury of November 13, 1997. On February 17, 1998 his
claim was denied for failure to establish fact of injury. On August 3, 1998, OWCP denied
modification of the prior decision, File No. xxxxxx401.
On February 14, 2007 appellant filed the instant occupational disease claim alleging that
he developed back and neck pain after returning to work on October 25, 1997 where he worked

in the lockbox section and was required to perform repetitive lifting, bending, standing, walking
and sitting, File No. xxxxxx657. He noted a November 13, 1997 date of injury. On June 4, 2007
OWCP denied the claim. On February 21, 2008 a hearing representative affirmed the June 4,
2007 denial. The hearing representative found that File No. xxxxxx657 was a duplicate of File
No. xxxxxx401, specifically noting that appellant filed both claims stating that he became aware
of his problems around November 13, 1997 after culling mail upon returning to work on
October 25, 1997. In a May 18, 2010 order, the Board remanded the case for OWCP to
consolidate File Nos. xxxxxx401, xxxxxx361 and xxxxxx657.1 On August 27, 2010 OWCP
denied modification of the prior decision. Appellant again appealed to the Board. In a June 28,
2011 order, the Board found that OWCP did not submit the complete record for File No.
xxxxxx401 and remanded the case for OWCP to consolidate the files.2 On December 16, 2011
OWCP noted consolidating the above cases and issued a decision denying modification of the
prior decision.
The Board finds that appellant’s February 14, 2007 occupational disease claim, File No.
xxxxxx657, is a duplicate of his November 25, 1997 claim, File No. xxxxxx401 and, therefore
was properly denied. In File No. xxxxxx401, appellant alleged that after returning to work on
October 25, 1997, he developed an aggravation of lower back and neck pain from work duties.
He noted a date of injury of November 13, 1997. Appellant’s claim was denied for failing to
establish that he sustained a work-related injury. In the case on appeal before the Board, File No
xxxxxx657, appellant has again alleged that on November 13, 1997 he developed a low back and
neck condition after returning to work on October 25, 1997. He has not alleged a new claim.
On appeal, appellant asserts that he developed a neck and back condition on
November 13, 1997 causally related to his work duties. For reasons stated, the Board finds that
he has not made a new claim.3

1

Docket No, 09-2010 (issued May 18, 2010).

2

Docket No. 10-2257 (issued June 28, 2011).

3

See W.M., Docket No. 09-1609 (issued April 5, 2010).

2

IT IS HEREBY ORDERED THAT the December 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 26, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3