United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.Y., Appellant
and
DEPARTMENT OF THE NAVY, SOUTHWEST
REGION, Seal Beach, CA, Employer
__________________________________________

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

Docket No. 09-949
Issued: November 25, 2009

Case Submitted on the Record

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

JURISDICTION
On February 9, 2009 appellant filed a timely appeal from the January 29, 2009 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.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$2,568.20 overpayment of compensation for the period January 21 to February 17, 2007;
(2) whether the Office properly determined that appellant was at fault in creating the
overpayment of compensation, thereby precluding waiver of recovery of the overpayment; and
(3) whether the Office properly required repayment of the overpayment by deducting $500.00
from appellant’s compensation payments every 28 days.
FACTUAL HISTORY
The Office accepted that on September 4, 1975 appellant, then a 36-year-old boilermaker,
sustained a cervical sprain and bilateral shoulder sprains at work. He underwent authorized

shoulder surgeries in 1977 and 1985. The Office paid appellant appropriate compensation for
periods of disability.
On February 17, 2007 the Office issued appellant a disability compensation check in the
amount of $2,568.20, which covered the period January 21 to February 17, 2007. The record
contains a photocopy of the front and back of the check which shows that the period covered by
the check was printed on the front of the check and that appellant endorsed and cashed the check.
On February 23, 2007 appellant had contacted the Office and indicated that he had not
received a compensation check for the compensation period ending February 17, 2007. He was
advised on February 26, 2007 to notify the Office of this circumstance in writing so that the
check could be cancelled and reissued. On the same day, appellant faxed a letter which indicated
that he had in fact since received his check for February 2007.1 An Office claim examiner told
appellant that he could cash that check.2 On May 4, 2007 the Office apparently believing
appellant had not cashed the February 17, 2007 check, issued him another disability
compensation check in the amount of $2,568.20, which covered the period January 21 to
February 17, 2007. The record contains a photocopy of the front and back of the check which
shows that the period covered by the check was printed on the front of the check and that
appellant endorsed and cashed the check.
In a May 27, 2008 letter, the Office advised appellant that it had made a preliminary
determination that he received a $2,568.20 overpayment of compensation because he received
and cashed two checks (dated February 17 and May 4, 2007) covering the same period of
compensation, January 21 to February 17, 2007. It also made a preliminary determination that
appellant was at fault in the creation of the overpayment because he knew or should have known
that he could not accept two checks for the same period of compensation. The Office noted that
the periods covered by the checks were printed on the front of both checks. It provided appellant
with an opportunity to present evidence and argument to contest the overpayment and request
waiver of the overpayment. The Office directed him to complete and return a financial
information questionnaire even if he was not contesting the overpayment.
In a financial information questionnaire completed on June 24, 2008, appellant indicated
that he had $3,862.00 in monthly income, $2,276.00 in monthly expenses and $700.00 in assets.
On the form, he asserted that he did not recall receiving two compensation checks for the same
period.
Appellant requested a hearing with an Office hearing representative regarding the
proposed overpayment determinations. At the December 10, 2008 hearing, he stated that he
recalled receiving the February 2007 check shortly after he reported it missing and being told by
an Office claims examiner that he could cash the check and that the replacement would be
cancelled. When asked to state why he cashed the replacement check, appellant stated that he
1

This acknowledgment was written in a postscript. Appellant indicated in the body of the letter that he had not
received his compensation check for the period “Jan[uary] 20 to Feb[ruary] 17, 2007.”
2

Even though the Office indicated that it had cancelled the February 17, 2007 check, appellant was nevertheless
able to cash it at his bank.

2

could not recall receiving it and was unaware that he had received two checks for the same
period. He indicated that all subsequent checks were received on time.
In a January 29, 2009 decision, the Office hearing representative determined that
appellant received a $2,568.20 overpayment of compensation and that he was at fault in creating
the overpayment, thereby precluding waiver of recovery of the overpayment. He indicated that
appellant should have known that he could not cash two compensation checks covering the same
period, particularly since both checks clearly displayed the period covered by the checks. The
Office noted that the financial information submitted by appellant showed that his monthly
income exceeded his monthly expenses by $1,586.00 and determined that the overpayment
would be recovered by deducting $500.00 from his compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 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 duty.4 Section 8129(a) of the Act provides, in
pertinent part, “When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which an individual is entitled.”5 Section
8116(a) of the Act provides that, while an employee is receiving compensation or if he has been
paid a lump sum in commutation of installment payments until the expiration of the period
during which the installment payments would have continued, the employee may not receive
salary, pay or remuneration of any type from the United States, except in limited specified
instances.6
ANALYSIS -- ISSUE 1
On February 17, 2007 the Office issued appellant a disability compensation check in the
amount of $2,568.20, which covered the period January 21 to February 17, 2007. The record is
undisputed that he endorsed and cashed the check. This compensation check represented the
entire amount of compensation to which appellant was entitled to for the period January 21 to
February 17, 2007. On May 4, 2007 the Office issued appellant another disability compensation
check in the amount of $2,568.20, which covered the period January 21 to February 17, 2007.
The record also is unrefuted that appellant endorsed and cashed the second check. Appellant
would not be entitled to receive a double recovery of compensation for a given period.
Therefore, he received an overpayment of compensation in the amount of $2,568.20 for the
period January 21 to February 17, 2007.

3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8116(a).

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LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Act provides that where an overpayment of compensation has
been made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.7 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”8 No waiver of payment is possible
if the claimant is not “without fault” in helping to create the overpayment.9
In determining whether an individual is not “without fault” or alternatively, “with fault,”
section 10.433(a) of Title 20 of the Code of Federal Regulations provides in relevant part:
“An individual is with fault in the creation of an overpayment who -(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(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….”10
Section 10.433(c) of the Office’s regulations provide:
“Whether or not [the Office] 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.”11
ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in the creation of the $2,568.20 overpayment
because he knew or should have known that he could not accept two checks covering the same
period of entitlement to compensation. The February 17 and May 4, 2007 checks were made out
in the same amount and each check clearly indicated on its front that it covered the period
7

Id. at § 8129(a).

8

Id. at § 8129(b).

9

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

10

20 C.F.R. § 10.433(a).

11

Id. at § 10.433(c).

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January 21 to February 17, 2007. At the December 2007 hearing before the Office hearing
representative, appellant asserted that he did not remember receiving the May 4, 2007
compensation check, yet appellant had reported in February 2007 that he had not received a
compensation check for the period ending February 17, 2007 and engaged in communications
with the Office in order to resolve this matter. Appellant ultimately indicated that he did receive
a compensation check for the period January 21 to February 17, 2007 and noted that all
subsequent checks were received on time. It would appear reasonable that the matter of
compensation for the period February 17 and May 4, 2007 would have stood out in appellant’s
memory. The $2,568.20 check that the Office issued on May 17, 2007 clearly covered the period
January 21 to February 17, 2007 and appellant was on notice that this check was for the same
period and should have been aware that it not intended to constitute his May 2007 compensation
check, but rather represented an impermissible payment for a period, for which he had already
been compensated.
Even though the Office may have been negligent in issuing two compensation checks
covering the same period, this does not excuse the fact that appellant cashed the second check,
which he knew or should have been expected to know should have been returned to the Office.12
For these reasons, it properly determined that he was at fault in creating the $2,568.20
overpayment of compensation and that, therefore, the overpayment was not subject to waiver.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441(a) of Title 20 of the Code of Federal Regulations provides in pertinent
part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
the same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”13
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the overpayment by deducting
$500.00 from appellant’s compensation payments every 28 days, the Office took into
consideration the financial information submitted by appellant as well as the factors set forth in
section 10.441 and found that this method of recovery would minimize any resulting hardship on
appellant. The Office noted that the financial information submitted by appellant showed that
his monthly income exceeded his monthly expenses by $1,586.00.

12

Robert W. O’Brien, supra note 9.

13

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

5

On appeal, appellant asserted that his monthly income had since been reduced by about
$800.00 and posited that, therefore, it was improper to recover the overpayment by deducting
$500.00 from his continuing compensation each month. The Board notes, however, that the
Office properly evaluated the financial information that was most current at the time that it made
its determination regarding the method of recovery of the overpayment. Therefore, the Office
properly required repayment of the overpayment by deducting $500.00 from appellant’s
compensation payments every 28 days.
CONCLUSION
The Board finds that the Office properly determined that appellant received a $2,568.20
overpayment of compensation. The Board finds that whether the Office properly determined that
he was at fault in creating the $2,568.20 overpayment of compensation and that, therefore, the
overpayment was not subject to waiver. The Board further finds that the Office properly
required repayment of the overpayment by deducting $500.00 from appellant’s compensation
payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 29, 2009 decision is affirmed.
Issued: November 25, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Pittsburgh, PA, Employer
)
___________________________________________ )
C.N., Appellant

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

Docket No. 08-55
Issued: April 7, 2008

Case Submitted on the Record

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

JURISDICTION
On October 5, 2007 appellant filed a timely appeal from a September 11, 2007 merit
decision of an Office of Workers’ Compensation Programs hearing representative affirming an
April 9, 2007 decision finding that appellant’s back condition was not causally related to her
employment. 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 has met her burden of proof to establish that she sustained
a back condition causally related to factors of her federal employment.
FACTUAL HISTORY
On January 11, 2007 appellant, then a 54-year-old letter carrier, filed an occupational
disease claim alleging that she had worked for the employing establishment for 25 years and
sustained back and leg pain due to factors of her employment. Her duties as a letter carrier
included that she had to carry weight on her back and in her arms. Appellant alleged that she had

to twist and pull for the majority of the day to pull mail out of her mailbag. She first became
aware of her condition and its relation to her work on January 10, 2007.1 Appellant did not stop
work.
In a January 11, 2007 treatment note, Dr. Shreeniwas Lele, Board-certified in internal
medicine, indicated that appellant presented with complaints of back and left leg pain. He
advised that appellant related that she had to “lift heavy weight” at work. Dr. Lele also noted
that appellant had a history of back pain. He diagnosed back pain with radiculopathy and
opined: “I think it is a disc disease.” In a January 11, 2007 duty status report, Dr. Lele
determined that appellant had severe pain in the lower left back and lower part of the body. He
determined that appellant had back pain and opined that she could return to work on a limitedduty basis.
In a January 12, 2007 statement, appellant noted that she carried weight in her arms and
on her back. She stated that for the “majority of the time I am twisting to pull out a third bundle
out of my mailbag, throwing off my posture with weight.” Appellant alleged that on January 10,
2007 she could not complete her route due to severe back pain.
By letter dated January 30, 2007, the Office informed appellant of the evidence needed to
support her claim and requested that she submit additional evidence within 30 days.
The Office subsequently received a November 3, 2006 treatment note from Dr. Lele, who
diagnosed back pain and carpal tunnel syndrome. He recommended light duty and medication.
In a January 11, 2007 duty status report, the physician outlined physical restrictions. On
February 3, 2007 appellant accepted an offer of modified duty. The employing establishment
indicated that she was working limited duty and also had a separate carpal tunnel claim. In a
February 1, 2007 duty status report, Dr. Lele continued her light-duty restrictions. In a
February 15, 2007 report, he noted that appellant had complaints of back pain “for quite a few
days.” Dr. Lele indicated that appellant related that “after long day at the work, it makes it
worse.” He conducted a physical examination which was normal, limited straight leg raising on
the left and diffuse tenderness. Dr. Lele recommended a magnetic resonance imaging (MRI)
scan and continued appellant’s restrictions of not lifting heavy weight or bending.
In a February 2007 statement, appellant described her activities as a letter carrier and her
back pain that she alleged resulted from her work.
By decision dated April 9, 2007, the Office denied appellant’s claim, finding that the
medical evidence was insufficient to establish that her condition was caused by her employment
duties. The Office accepted that appellant performed the duties of a letter carrier.2 However, the
medical evidence did not provide a definitive diagnosis which was connected to the accepted
work exposure.
1

Appellant also alleged that, during her tenure with the employing establishment, she was in two motor vehicle
accidents at work.
2

The Office noted that her duties included walking with weight on her back, twisting and pulling. The Office
also acknowledged that appellant was involved in two motor vehicle accidents.

2

On April 14, 2007 appellant’s representative requested a hearing, which was held on
August 7, 2007.3
Dr. Lele submitted duty status reports dated March 31 and April 4, 2007. He noted his
previous findings in which he indicated that appellant had back pain. Dr. Lele also noted that
appellant had carpal tunnel syndrome. He prescribed light-duty restrictions.
By decision dated September 11, 2007, the Office hearing representative affirmed the
April 9, 2007 decision.
LEGAL PRECEDENT
In order to establish that an injury was sustained in the performance of duty in an
occupational disease claim, a claimant must submit the following: (1) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; (2) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; and (3) medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.4 Causal relationship is a medical question that can generally be resolved only
by rationalized medical opinion evidence.5
To establish causal relationship, appellant must submit a physician’s report in which the
physician reviews the factors of employment identified by appellant as causing his condition and,
taking these factors into consideration as well as findings on examination of appellant and
appellant’s medical history, state whether these employment factors caused or aggravated
appellant’s diagnosed conditions and present medical rationale in support of his opinion.6
ANALYSIS
The Office accepted that appellant performed the duties of a letter carrier, which required
walking with weight on her back and twisting and pulling. However, the Office found that the
medical evidence did not establish that her claimed medical condition arose from these
employment factors.

3

At the hearing, appellant noted two prior work-related injuries. She referred to an injury that occurred in
May 1994 when she was hit by a motor vehicle causing her neck and upper back injuries. Appellant also stated that,
in October 1995, she was broadsided by another driver while in her employing establishment vehicle. She alleged
that she returned to full duty in 1996, but that her conditions were aggravated by daily walking and carrying mail.
Appellant also noted that she had a separate claim for bilateral carpal tunnel syndrome. File No. 09-2078504.
These other claims are not before the Board on the present appeal.
4

Solomon Polen, 51 ECAB 341 (2000); see also Victor J. Woodhams, 41 ECAB 345 (1989).

5

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background of the claimant. Victor J. Woodhams, supra note 4 at 352.
6

Donald W. Long, 41 ECAB 142, 146-47 (1989).

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Appellant submitted reports from her treating physician, Dr. Lele. On January 11, 2007
Dr. Lele indicated that appellant presented with complaints of back and left leg pain and a
history of back pain. He noted that appellant related that she had to “lift heavy weight” at work
and that she indicated that her pain worsened after work. Dr. Lele diagnosed back pain with
radiculopathy and opined: “I think it is a disc disease.” However, he did not specifically discuss
whether appellant’s work duties were the cause of her pain. This report is of little probative
value.7 Further, the Board has held that a diagnosis of “pain” does not constitute the basis for the
payment of compensation.8 Additional reports from Dr. Lele have similar deficiencies. On
November 3, 2006 he again diagnosed back pain and carpal tunnel.9 However, he did not
address how specific employment activities caused or aggravated the diagnosed conditions. On
February 15, 2007 Dr. Lele noted that appellant related that, “after a long day at work,” her pain
became “worse.” However, he did not provide any opinion addressing how particular
employment factors caused or aggravated her medical condition. Other reports from Dr. Lele
also did not specifically address the relationship between appellant’s employment factors and a
diagnosed medical condition.
Because appellant has not submitted reasoned medical evidence explaining how
particular employment factors caused or aggravated a diagnosed back condition, appellant has
not met her burden of proof in establishing her claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a back condition causally related to factors of her federal employment.

7

Id.

8

John L. Clark, 32 ECAB 1618 (1981).

9

The carpal tunnel claim is not before the Board in the present claim.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 11, 2007 is affirmed.
Issued: April 7, 2008
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, U.S. AIR
FORCE ACADEMY, Colorado Springs, CO,
Employer
__________________________________________

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)

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

Docket No. 20-1189
Issued: January 27, 2021

Case Submitted on the Record

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

JURISDICTION
On May 20, 2020 appellant filed a timely appeal from a May 7, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

1

Appellant submitted a timely requested for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to
the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, she asserted that oral argument should be granted because she submitted
all the evidence requested and OWCP did not review it. The Board, in exercising its discretion, denies appellant’s
request for oral argument because the arguments on appeal can adequately be addressed in a decision based on a
review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve
a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as
submitted to the Board.

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $9,264.26, for which she was not at fault, because
she concurrently received FECA wage-loss compensation benefits and Social Security
Administration (SSA) age-related retirement benefits for the period December 1, 2018 through
March 28, 2020 without an appropriate offset; (2) whether OWCP properly denied waiver of
recovery of the overpayment; and (3)whether OWCP properly required recovery of the
overpayment by deducting $319.00 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
On June 20, 1991 appellant, then a 38-year-old real property clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed bronchitis, sinus infections, and chest pain
due to factors of her federal employment. On August 20, 1991 OWCP accepted the claim for
temporary exacerbation of allergic rhinitis. It later expanded the acceptance of the claim to include
aggravation of reactive airway disease, aggravation of vocal cord dysfunction, other chronic
sinusitis, recurrent candidal vulvovaginitis, recurrent urinary tract infection, myalgia and myositis,
right shoulder sprain, esophagitis, chronic recurrent ear infections, bilateral chronic serous otitis
media, other chest pain, and benign parxysmal positional vertigo. OWCP paid appellant wageloss compensation on the periodic rolls, beginning June 26, 1991.
On an EN1032 form dated December 18, 2017, appellant indicated that she received
monthly SSA disability benefits in the amount of $693.00. On an EN1032 form dated
December 11, 2018, she indicated that she received SSA disability benefits in the amount of
$841.00.
On March 8, 2019 OWCP provided SSA with a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form.
On March 18, 2019 SSA returned the dual benefits calculation form uncompleted, noting
that SSA disability insurance benefits were involved.
In an August 19, 2019 letter, an injury compensation management adviser reviewed the
case record on behalf of the employing establishment and advised OWCP that appellant was
receiving SSA disability benefits, which would soon be converted to SSA age-related retirement

2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the May 7, 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

benefits. The adviser noted that appellant would reach the normal retirement age of 66 on
December 23, 2018.
In an EN1032 form dated December 19, 2019, appellant indicated that she received
monthly SSA age-related retirement benefits in the amount of $865.00.
OWCP again provided SSA with FERS/SSA dual benefits calculation forms on August 29
and December 10, 2019 and January 14, 2020.
In dual benefits calculation forms, dated September 3 and December 18, 2019 and
February 11, 2020, SSA noted that appellant was only receiving SSA disability benefits and
indicated that “no offset applied.”
On February 25, 2020 OWCP again provided SSA with a FERS/SSA dual benefits
calculation form.
On March 10, 2020 SSA completed the dual benefits calculation form, which indicated
appellant’s SSA benefit rates with a FERS offset and without a FERS offset from December 2018
through December 2019. Beginning December 2018, the SSA rate with FERS was $1,369.00 and
without FERS was $790.70. Beginning December 2019, the SSA rate with FERS was $1,391.00
and without FERS was $803.30.
On April 2, 2020 OWCP prepared a FERS offset calculation worksheet wherein it noted
the calculation of appellant’s SSA offset overpayment from December 1, 2018 through
March 28, 2020. It found that she received an overpayment of compensation in the amount of
$6,958.66 for the period December 1, 2018 through November 30, 2019 and an overpayment in
the amount of $2,305.59 for the period December 1, 2019 through March 28, 2020. The total
overpayment was determined to be $9,264.26.
In a letter dated April 2, 2020, OWCP notified appellant that, based on information
provided by SSA regarding the amount of her age-related retirement benefits which were
attributable to federal service, her FECA wage-loss compensation had been adjusted.
On April 2, 2020 OWCP issued a preliminary determination, finding that an overpayment
of compensation in the amount of $9,264.26 had been created because appellant received SSA
age-related retirement benefits based upon her federal service, without appropriate offset at the
same time she received FECA benefits for the period December 1, 2018 through March 28, 2020.
It explained that the overpayment occurred because her compensation was not reduced by the
FERS/FECA amount. OWCP found appellant not at fault in the creation of the overpayment and
forwarded an overpayment action request form and an overpayment recovery questionnaire (Form
OWCP-20). It requested that she provide supporting financial documentation including income
tax returns, bank account statements, bills and cancelled checks, pay slips, and any other records
to support her reported income and expenses. OWCP afforded appellant 30 days to respond. No
response was received.
By decision dated May 7, 2020, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $9,264.26, for the period
December 1, 2018 through March 28, 2020, because it had failed to offset her compensation
3

payments by the portion of her SSA age-related retirement benefits that were attributable to federal
service. It further found that she was without fault in the creation of the overpayment, but denied
waiver of recovery of the overpayment because the evidence of record was insufficient to establish
that recovery of an overpayment would defeat the purpose of FECA or would be against equity
and good conscience. OWCP required recovery of the overpayment by deducting $319.00 every
28 days from appellant’s continuing compensation payments.
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.4 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.5
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.6 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 part of the FERS retirement package,
and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual benefit.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $9,264.26, for which she was without fault,
because she concurrently received FECA wage-loss compensation benefits and SSA age-related
retirement benefits for the period December 1, 2018 through March 28, 2020 without an
appropriate offset.
As previously noted, OWCP is required 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.8 On September 3 and December 18, 2019, and February 11, 2020, SSA noted in
FERS/SSA Dual Benefit Calculation Forms that appellant was only receiving SSA disability
benefits that she was entitled to and indicated that no offset applied. However, on March 10, 2020
SSA completed a FERS/SSA Dual Benefit Calculation Form and reported that appellant had

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see J.R., Docket No. 17-0181 (issued August 12, 2020); L.W., Docket No. 19-0787 (issued
October 23, 2019).
7

FECA Bulletin No. 97-09 (February 3, 1997); see also S.M., Docket No. 20-0152 (issued August 10, 2020).

8

Supra note 6.

4

received SSA age-related retirement benefits subject to SSA/FERS offset from December 2018
through March 10, 2019, the date of the response.
The Board has held that, in overpayment cases, it is essential that OWCP provide the
recipient of compensation with a clear statement showing how the overpayment was calculated.9
With respect to the period and amount of the overpayment, the Board finds that OWCP has not
adequately explained how the overpayment was determined in light of the discrepancies in the
evidence provided by SSA as to when appellant began receiving SSA age-related retirement
benefits.10 As such, the Board is unable to verify the fact and amount of the overpayment of
compensation in the amount of $9,264.26.11
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $9,264.26, for which she was without fault,
because she concurrently received FECA wage-loss compensation benefits and SSA age-related
retirement benefits for the period December 1, 2018 through March 28, 2020 without an
appropriate offset.

9

See R.E., Docket No. 19-1583 (issued May 27, 2020); J.M., Docket No. 18-1505 (issued June 21, 2019); Teresa A.
Ripley, 56 ECAB 528 (2005).
10

See R.E., id.; E.T., Docket No. 19-1046 (issued December 31, 2019).

11
As OWCP has not established fact and amount of the overpayment, the issues of waiver and recovery of the
overpayment are rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the May 7, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: January 27, 2021
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
DEPARTMENT OF THE ARMY, CPAC-ARMY
ARMOR CENTER, Fort Knox, KY, Employer
__________________________________________

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Appearances:
Benjamin J. Humphries, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1360
Issued: May 18, 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 May 16, 2011 appellant, through his attorney, filed a timely appeal from a March 8,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has established that his bilateral hearing loss was causally
related to factors of his federal employment.
FACTUAL HISTORY
On February 15, 2009 appellant, then a 79-year-old retired locomotive engineer, filed a
notice of occupational disease, alleging that he sustained hearing loss causally related to factors
of his federal employment. He indicated that he first became aware that his hearing loss was
1

5 U.S.C. § 8101 et seq.

caused by his federal
November 12, 1976.

employment

on

November 7, 2008.

Appellant

retired

on

Along with the claim, appellant submitted a November 7, 2008 audiogram which
reported severe to profound mid-to-high frequency bilateral hearing loss. The audiogram did not
contain calibration information. The signature on the audiogram was illegible.
In a supplemental sworn statement dated February 6, 2009, appellant explained that he
was born without any hearing disability, and had no hearing disabilities until he started working
at Fort Knox. He alleged that his hearing aid specialist had suggested to him that his hearing loss
might have been caused by his employment at Fort Knox. Appellant further stated that, while
serving as a locomotive engineer and brakeman, he was required to be either on or around the
vicinity of the locomotive almost eight hours per day, five days per week and that the
locomotives were extremely loud. He also noted that he was not given ear protection.
By letter dated April 30, 2009, OWCP requested that appellant submit evidence to
demonstrate that his supervisor had actual knowledge of the alleged hearing loss within 30 days
of the date of injury. It also requested that he submit audiogram evidence to establish his hearing
loss.
On May 29, 2009 appellant submitted a sworn affidavit, in which he reiterated his work
and medical history and also noted that his supervisors had knowledge of his hearing loss. He
alleged that the employing establishment conducted hearing tests annually, and even though the
hearing test results were not provided to him, he was told after each test that his hearing was
worsening.
On July 8, 2009 the district medical adviser (DMA) concluded that the July 8, 2009
audiogram showed a mid- and high-frequency hearing loss, which was consistent with noiseinduced hearing loss. However, she also qualified her opinion by noting that, because the
audiologic testing was done more than 30 years after appellant’s retirement, causal relationship
could not be determined with any degree of certainty.
OWCP denied appellant’s claim in a July 14, 2009 decision on the grounds that it was
untimely filed.
Appellant disagreed with the decision and requested a review of the written record on
July 21, 2009. In an October 23, 2009 decision, the hearing representative affirmed the July 14,
2009 OWCP decision.
On July 13, 2010 appellant’s representative requested reconsideration before OWCP.
Appellant submitted an additional affidavit, dated August 19, 2010, in which he stated
that his hearing loss occurred during his employment in the transportation and locomotive
department between the years of 1952 to 1976, as a result of the high noise exposure in
employment and that he was never provided any type of hearing protection.
On August 30, 2010 OWCP referred appellant’s case along with a statement of accepted
facts to a second opinion physician, Dr. Andrew S. Mickler, a Board-certified otolaryngologist.
2

Dr. Mickler’s September 17, 2010 medical report diagnosed appellant with sensorineural
hearing loss, but opined that the hearing loss was not due to the noise in his federal employment.
He stated the following as the basis for his conclusion: “when one looks at the bone conduction
scores, there is no noise notch noted. Without a noise notch, there is no diagnosis of a noiseinduced hearing loss.”
By decision dated October 18, 2010, OWCP modified its prior decision to find that
appellant’s claim was timely filed; however, appellant’s claim remained denied as appellant had
not established causal relationship between his employment factors and his hearing loss.
Appellant’s representative filed another reconsideration request on January 24, 2011.
Along with the request, he also sent a letter from Dr. Larry J. Hall, a Board-certified
otolaryngologist, dated January 14, 2011, in which Dr. Hall concluded that appellant had a midand high-tone sensorineural hearing loss due to noise exposure. Dr. Hall further noted that he
disagreed with Dr. Mickler’s statement that “without a noise notch, there is no diagnosis of a
noise-induced hearing loss.” In support of his position, he explained that “in some instances,
bone conduction is higher than air conduction in high-tone noise-induced hearing loss, but this in
no way has to be the case, and one certainly cannot rule out noise hearing loss from this.”
By decision dated March 8, 2011, OWCP found that Dr. Mickler’s report constituted the
weight of the medical evidence and established that appellant’s hearing loss was not causally
related to his federal employment.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his claim. When an employee
claims that he sustained an injury in the performance of duty, he must submit sufficient evidence
to establish that he experienced a specific event, incident or exposure occurring at the time, place
and in the manner alleged. He must also establish that such event, incident or exposure caused
an injury.3
Causal relationship is a medical issue,4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,5 must be one of reasonable medical certainty,6
2

5 U.S.C. § 8102(a); see also F.A., Docket No. 11-662 (issued September 21, 2011).

3

John J. Carlone, 41 ECAB 354 (1989).

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567 (1979).

6

See Morris Scanlon, 11 ECAB 384 (1960).

3

and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.7
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.8 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination.9
ANALYSIS
Appellant has alleged that he developed bilateral loss of hearing due to noise exposure
during his federal employment. The Board finds that the case is not in posture for decision.
There are two medical reports of record that provided opinions as to whether the noise
exposure appellant experienced in his employment as a locomotive engineer caused his hearing
loss.10 Dr. Mickler’s September 17, 2010 report stated that appellant’s sensorineural hearing loss
was not due to noise exposure in his employment. His medical rationale supporting this
conclusion was “when one looks at the bone conduction scores, there is no noise notch noted.
Without a noise notch, there is no diagnosis of a noise-induced hearing loss.”
Dr. Hall reviewed appellant’s medical records which included Dr. Mickler’s medical
opinion and noted in his letter dated January 14, 2011 that: “In some instances, bone conduction
is higher than air conduction in high tone noise-induced hearing loss, but this in no way has to be
the case and one certainly cannot rule out noise-induced hearing loss from this.” Dr. Hall went
on to point out that he specifically disagreed with Dr. Mickler’s statement that “without a noise
notch there is no diagnosis of a noise-induced hearing loss.” He concluded that appellant’s
sensorineural hearing loss was due to noise exposure.
Both of these medical opinions were based on a detailed history of appellant’s
employment-related noise exposure as well as a complete medical background. They had each
provided medical rationale for their conclusions on whether appellant’s hearing loss was noise
induced. The Board finds that the opinions are of equal weight and rationale, and that the two
doctors differ in their opinion on causal relationship, a central issue in the present case.11

7

See William E. Enright, 31 ECAB 426, (1980).

8

5 U.S.C. § 8123(a); see S.R., Docket No. 09-2332 (issued August 16, 2010).

9

20 C.F.R. § 10.321.

10

The DMA opinion dated July 8, 2009 was based solely on an audiogram result which did not meet the Federal
(FECA) Procedural Manual’s evidential requirement for a hearing test as indicated above. As such, the DMA
opinion has limited probative value for determining causal relationship. See A.B., Docket No. 11-290 (issued
September 23, 2011); R.B., Docket No. 10-1512 (issued March 24, 2011).
11

See H.V., Docket No. 10-2363 (issued July 15, 2011).

4

When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.12 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.13
On remand, OWCP should refer appellant, a statement of accepted facts, and a list of
specific questions to a Board-certified otolaryngologist to determine if appellant’s loss of hearing
is related to his accepted employment-related noise exposure and whether there is permanent
impairment.
CONCLUSION
The Board finds that the case is not in posture for decision as there is an unresolved
conflict of medical opinion evidence as to whether appellant’s hearing loss was a result of his
exposure to noise during his federal employment. Upon return of the case record, OWCP shall
further develop the medical evidence as appropriate and issue a de novo decision.

12

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

13

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

5

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this opinion.
Issued: May 18, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 20-0336
Issued: May 13, 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 December 3, 2019 appellant filed a timely appeal from September 20 and November 7,
2019 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated April 4, 2019, to 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 lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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 June 25 and October 24, 2019
requests for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board on different issues.3 The facts and
circumstances of the case as set forth in the Board’s prior decisions are incorporated herein by
reference. The relevant facts are as follows.
OWCP accepted that on May 27, 1987 appellant, then a 48-year-old mail handler, sustained
a low back strain, chronic pain syndrome, and aggravation of arachnoiditis radiating into his lower
extremities when pulling a mail tub while in the performance of duty on May 27, 1987. It assigned
OWCP File No. xxxxxx584.4 In 1998, OWCP accepted under a separate occupational disease
claim, assigned OWCP File No. xxxxxx561, that he sustained an employment aggravation of
spinal stenosis of the cervical and lumbar regions.5 Appellant underwent OWCP-authorized
surgeries, including cervical discectomy/fusion surgery in 1999 and decompressive lumbar
laminectomy in 2001.
By decision dated August 19, 2016, OWCP granted appellant a schedule award for three
percent permanent impairment of his right upper extremity. It determined that he had 41 percent
permanent impairment of his left upper extremity and 10 percent permanent impairment of each
lower extremity, for which he previously received schedule award compensation.
In a January 12, 2017 report, Dr. John Meding, a Board-certified orthopedic surgeon,
indicated that appellant reported that he fell on his left knee in December 2016 after receiving an
epidural injection.6 He noted that x-rays showed osteoarthritis of both knees.
In mid-2017, appellant asserted that he sustained a left knee injury as a consequence of his
accepted May 27, 1987 employment injury because he fractured his left knee due to a January 3,
2017 fall at home, which he believed occurred due to residuals of the back conditions accepted in

3

Docket No. 10-1672 (issued June 6, 2011); Docket No. 07-2042 (issued June 3, 2008); Docket No. 05-1125
(issued July 20, 2006).
4

Under a separate occupational disease claim, to which OWCP assigned OWCP File No. xxxxxx676, appellant
also claimed that he sustained conditions of the neck and upper extremities. OWCP denied this claim by decisions
dated September 16, 1996, and March 18 and September 10, 1997.
5

OWCP administratively combined OWCP File Nos. xxxxxx584, xxxxxx676, and xxxxxx561, designating OWCP
File No. xxxxxx584 as the master file.
6
Appellant later submitted a December 1, 2016 report in which Dr. Weldon Egan, a Board-certified
anesthesiologist, described an epidural injection he applied to appellant’s back on that date.

2

connection with the May 27, 1987 employment injury.7 He further asserted that his left knee
fracture necessitated a total left knee replacement, which he underwent on May 16, 2017.
OWCP referred appellant’s case record along with a statement of accepted facts (SOAF)
and a series of questions to Dr. William Tontz, Jr., a Board-certified orthopedic surgeon serving
as an OWCP district medical adviser (DMA), and requested that he evaluate appellant’s left knee
condition. In an August 30, 2017 report, Dr. Tontz indicated that x-rays of the left knee did not
show a patellar fracture.
In June 2018, OWCP referred appellant for a second opinion examination to Dr. Thomas
Cittadine, a Board-certified orthopedic surgeon. It provided Dr. Cittadine with the case record,
including a SOAF, and requested that he evaluate the permanent impairment of appellant’s
extremities. Appellant did not appear for the examination scheduled for July 17, 2018.
In a January 16, 2019 development letter, OWCP requested that appellant submit
additional factual and medical evidence in support of his consequential injury claim. It afforded
him 30 days to respond.
In response, appellant submitted a February 25, 2019 statement in which he argued that he
sustained a left knee injury as a consequence of his accepted May 27, 1987 employment injury
because he fractured his left knee due to a January 3, 2017 fall at home, which he believed that
occurred due to residuals of the back conditions accepted in connection with the May 27, 1987
employment injury. He also claimed that his left knee fracture necessitated the total left knee
replacement, which he underwent on May 16, 2017. Appellant also asserted that a December 1,
2016 epidural injection weakened his legs and contributed to his January 3, 2017 fall. He claimed
that OWCP improperly handled his consequential injury claim and that employing establishment
participated in physician shopping as a means of obtaining unfavorable medical opinions.
Appellant asserted that it was improper for Dr. Tontz, the DMA, to find that appellant did not have
a left knee fracture, and appellant asserted that Dr. Tontz violated fiduciary rules. He further
alleged that he did not attend a second opinion examination regarding the evaluation of his
permanent impairment because OWCP failed to fully discuss his medical condition after the
May 27, 1987 low back injury in the SOAF, which was provided to the examiner. Appellant
indicated that the reports of Dr. Meding demonstrated that appellant had a left knee fracture and
appellant questioned the ability of an OWCP claims examiner to adjudicate consequential injury
claims. He claimed that he had established all the elements of a consequential injury as explained
in the Board cases and legal treatises. Appellant asserted that OWCP incorrectly calculated his
August 19, 2016 schedule award and refused to correct the calculations. He maintained that he
would attend a second opinion examination if the examiner were provided accurate facts about his
medical condition.
Appellant submitted reports of Dr. Meding, including a report of the May 16, 2017 total
left knee replacement surgery and medical progress notes dated between May 13, 2008 and
January 10, 2019. He also submitted a left knee magnetic resonance imaging (MRI) scan dated
7

Appellant also asserted that the December 1, 2016 epidural injection weakened his legs and contributed to his
January 3, 2017 fall. It is noted that the January 12, 2017 report of Dr. Meding indicated that appellant reported falling
on his left knee in December 2016.

3

April 10, 2017, left knee x-rays findings dated June 11 and November 1, 2018, and a left knee
bone scan dated November 1, 2018. In an April 27, 2017 report, Dr. Meding indicated that a recent
MRI scan of appellant’s left knee showed full-thickness lesions about the medial femoral condyle
and the patella femoral articulation.
By decision dated April 4, 2019, OWCP denied appellant’s claim for a consequential left
knee injury causally related to his accepted May 27, 1987 employment injury.
On June 25, 2019 appellant requested reconsideration of the April 4, 2019 decision.
In a June 21, 2019 statement, appellant claimed that OWCP engaged in obstruction with
respect to his consequential injury claim and that the employing establishment participated in
physician shopping as a means of obtaining unfavorable medical opinions. He asserted that it was
improper for Dr. Tontz, the DMA, to find that appellant did not have a left knee fracture and
asserted that Dr. Tontz violated fiduciary rules. Appellant further alleged that he refused to attend
a second opinion examination because OWCP failed to fully discuss his medical condition after
the May 27, 1987 low back injury in the SOAF that was provided to the examiner. He indicated
that the reports of Dr. Meding demonstrated appellant had a left knee fracture and he questioned
the ability of an OWCP claims examiner to adjudicate consequential injury claims. Appellant
asserted that pain and weakness from his May 27, 1987 employment injury and the effects of
epidural injections caused his January 3, 2017 fall, which in turn caused a left knee injury that
necessitated total left knee replacement surgery. He claimed that he had established all the
elements of a consequential injury as explained in the Board cases and legal treatises. Appellant
claimed that his left knee injury and left knee surgery were “direct and natural” consequences of
his original employment injury. He asserted that OWCP incorrectly calculated his August 19,
2016 schedule award and refused to correct the calculations. Appellant requested that OWCP send
him to a second opinion examination concerning his claimed consequential injury.
In a July 16, 2019 statement, appellant again asserted that pain and weakness from his
May 27, 1987 employment injury and the effects of epidural injections caused his January 3, 2017
fall, which in turn caused a left knee injury that necessitated total left knee replacement surgery.
He maintained that he would attend a second opinion examination if the examiner were provided
accurate facts about his medical condition. Appellant again questioned the evaluation of Dr. Tontz
and alleged that OWCP engaged in obstruction and that the employing establishment engaged in
doctor shopping. He continued to assert that the medical evidence of record was sufficient to
establish all the elements of a consequential injury.
By decision dated September 20, 2019, OWCP denied appellant’s June 25, 2019 request
for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
On October 24, 2019 appellant requested reconsideration of the September 20, 2019
decision.
In a September 29, 2019 statement, appellant asserted that OWCP did not give a credible
reason for why his January 3, 2017 fall was not a consequence of the accepted May 27, 1987
employment injury. He again asserted that OWCP effectively denied him an opportunity to attend
a second opinion examination because it failed to fully discuss his medical condition after the

4

May 27, 1987 low back injury in the SOAF that was provided to the examiner. Appellant claimed
that OWCP claims examiners failed to consult the results of medical examinations, which preceded
his federal employment. He again questioned the abilities and credentials of an OWCP claims
examiner and asserted that OWCP improperly attributed his January 3, 2017 fall to nonworkrelated osteoarthritis. Appellant claimed that OWCP violated the Health Insurance Portability and
Accountability Act (HIPAA) by improperly withholding records.
In an October 24, 2019 statement, appellant again maintained that he would attend a second
opinion examination regarding his consequential injury claim if the examiner were provided
accurate facts about his medical condition. He continued to question the opinion of Dr. Tontz, the
DMA, and to allege that an OWCP claims examiner was not knowledgeable enough to evaluate
his consequential injury claim. Appellant again questioned the accuracy and completeness of the
SOAF’s contained in the case record, criticized OWCP’s handling of second opinion
examinations, and claimed that OWCP improperly withheld part of the case record from him. He
further discussed the medical mechanism of his claimed consequential injury, explained his duties
as a mail handler, and detailed his accepted medical conditions and medical treatment. Appellant
questioned why OWCP did not accept that his employment-related lumbar stenosis condition
contributed to his January 3, 2017 fall. He asserted that the medical evidence of record established
a consequential injury.
By decision dated November 7, 2019, OWCP denied appellant’s October 24, 2019 request
for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.8
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.9
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.10 If it chooses to grant reconsideration, it reopens
8

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); 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).
9
20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
10

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 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.

5

and reviews the case on its merits.11 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.12
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record13 and the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s June 25 and October 24, 2019
requests for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
Considering appellant’s June 25, 2019 reconsideration request first, the Board finds that on
that date he filed a timely request for reconsideration of an April 4, 2019 decision denying his
consequential injury claim.15 The Board finds, however, that he neither established that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal
argument not previously considered by OWCP.
Along with his June 25, 2019 reconsideration request, appellant submitted June 21 and
July 16, 2019 statements in which he discussed his belief that residuals of his May 27, 1987
employment injury, as well as treatment for that injury, weakened his legs such that he experienced
a fall at home on January 3, 2017. He further alleged that he fractured his left knee due to the fall
and that this condition necessitated a total left knee replacement on May 16, 2017. Appellant
provided an extensive discussion of his belief that OWCP and, to a lesser extent, the employing
establishment, engaged in improper actions and generally misinterpreted the medical evidence of
record. He criticized the evaluation conducted by Dr. Tontz (the DMA), asserted that Dr. Tontz
violated fiduciary rules, challenged the competency of an OWCP claims examiner, criticized
OWCP’s handling of a referral to a second opinion examiner on an unrelated schedule award
matter, and claimed that OWCP incorrectly calculated his August 19, 2016 schedule award.
Appellant asserted that the existing medical evidence of record established his consequential injury
claim.
However, OWCP had previously considered and rejected these same arguments when it
denied appellant’s claim. The Board finds that his June 21 and July 16, 2019 statements are
substantially similar to his previously submitted February 25, 2019 statement that was reviewed
by OWCP prior to issuing its April 4, 2019 decision denying his consequential injury claim. The
11

Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

12
Id. at § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
13

N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

14

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper l, 31 ECAB 224, 225 (1979).

15

See supra note 10.

6

submission of these statements would not require reopening the case for merit review because the
Board has held that the submission of evidence or argument, which repeats or duplicates evidence
or argument already in the case record does not constitute a basis for reopening a case.16
Accordingly, the Board finds that appellant is not entitled to a review of the merits based on either
the first or second requirement under 20 C.F.R. § 10.606(b)(3) with respect to the June 25, 2019
reconsideration request.
The Board notes that the underlying issue of the present case is medical in nature, i.e.,
whether appellant submitted sufficient medical evidence to establish a left knee condition (and
resultant left knee surgery) as a consequence of his accepted May 27, 1987 employment injury.
However, appellant did not submit any medical evidence in connection with his June 25, 2019
reconsideration request. Therefore, he also failed to satisfy the third requirement under 20 C.F.R.
§ 10.606(b)(3). The Board accordingly finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3) with respect to his June 25, 2019 reconsideration request. Pursuant to
20 C.F.R. § 10.608, OWCP properly denied merit review.
In considering appellant’s October 24, 2019 reconsideration request, the Board finds that
on that date he filed a timely request for reconsideration of the April 4, 2019 decision denying his
consequential injury claim.17 The Board finds, however, that he neither established that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal
argument not previously considered by OWCP with respect to this reconsideration request.
Appellant submitted September 29 and October 24, 2019 statements in which he discussed
his consequential injury claim. However, the Board finds that his September 29 and October 24,
2019 statements are substantially similar to his previously submitted statements, which were
reviewed and rejected by OWCP. With respect to the repetitious arguments contained in the
September 29 and October 24, 2019 statements, the Board has held, as previously noted, that the
submission of evidence or argument, which repeats or duplicates evidence or argument already in
the case record does not constitute a basis for reopening a case.18 The Board notes that the
September 29 and October 24, 2019 statements contain some arguments not previously presented,
however, these unsupported arguments are not relevant to the underlying medical issue of the
present case. For example, appellant claimed without explanation or supporting evidence that
OWCP violated HIPAA regulations by withholding medical documents. He also asserted OWCP
claims examiners failed to consult the results of medical examinations that preceded his federal
employment, but he did not further explain this argument or its relevance to his consequential
injury claim. The Board has held that the submission of evidence or argument which does not
address the particular issue involved does not constitute a basis for reopening a case.19
Accordingly, the Board finds that appellant is not entitled to a review of the merits based on either

16

See supra note 13.

17

See supra note 10.

18

See supra note 13.

19

See supra note 14.

7

the first or second requirement under 20 C.F.R. § 10.606(b)(3) with respect to the October 24,
2019 reconsideration request.
The Board notes that appellant did not submit any medical evidence in connection with his
October 24, 2019 reconsideration request. Therefore, appellant also failed to satisfy the third
requirement under 20 C.F.R. § 10.606(b)(3). The Board accordingly finds that he has not met any
of the requirements of 20 C.F.R. § 10.606(b)(3) with respect to his October 24, 2019
reconsideration request. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s June 25 and October 24, 2019
requests for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 7 and September 20, 2019 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 13, 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
__________________________________________
K.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bluebell, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2096
Issued: February 25, 2008

Case Submitted on the Record

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

JURISDICTION
On August 10, 2007 appellant filed a timely appeal from a February 23, 2007 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that she sustained greater than a one
percent impairment of the right upper extremity, for which she received a schedule award.
FACTUAL HISTORY
The Office accepted that on March 25, 2003 appellant, then a 39-year-old supervisor,
slipped and fell on a wet floor, sustaining a right shoulder strain, basal fracture of the first

metacarpal of the right thumb, a right elbow contusion and right knee contusion.1 She was off
work through May 4, 2003. Appellant returned to part-time limited duty on May 5, 2003 and to
full duty on August 30, 2003. She received compensation for these absences.2
On December 18, 2004 appellant claimed a schedule award. She submitted a
September 9, 2004 report from Dr. David Weiss, an osteopathic physician. On examination of
the right shoulder, Dr. Weiss noted forward elevation and abduction limited to 130 degrees,
internal rotation limited to 80 degrees and Grade 4/5 weakness of the supraspinatus. On
examination of the right thumb, he found a mildly positive Finklestein’s test and a full range of
motion in all joints. Grip strength testing showed 20 kilograms (kg) on the right and 32 kg on
the left, “markedly abnormal as [appellant was] a right hand dominant female.” Pinch strength
was six kg on the right and eight kg on the left. Regarding the right leg, Dr. Weiss found patellar
crepitance with compression, no atrophy and no loss of strength. He diagnosed post-traumatic
chondromalacia of the right knee, post-traumatic acromioclavicular joint arthropathy,
impingement of the right shoulder, rotator cuff tendinitis and post-traumatic de Quervain’s
tendinitis of the right wrist. Referring to the fifth edition of the American Medical Association,
“Guides to the Evaluation of Permanent Impairment” (hereinafter, “A.M.A., Guides”),
Dr. Weiss noted a three percent impairment of right shoulder flexion according to Figure 16-40,
page 4763 and a two percent impairment of abduction according to Figure 16-43, page 477.4 He
found a 20 percent impairment due to grip strength deficit according to Table 16-34, page 509.5
Dr. Weiss combined the 5 percent impairment for loss of motion with the 20 percent grip
strength deficit to equal 24 percent. He also noted a three percent impairment due to pain
according to Table 18-1, page 574.6 This totaled a 27 percent impairment of the right upper
extremity. Regarding the right leg, Dr. Weiss noted an eight percent impairment due to right calf

1

April 1, 2003 x-rays of the right shoulder showed no fracture, dislocation, degenerative changes or
peritendinous calcifications. April 1, 2003 lumbar, right hand, right knee and right hip x-rays were unremarkable.
August 8, 2003 electromyogram and nerve conduction volecity studies of the upper extremities were within normal
limits.
2

Appellant remained under treatment medical treatment after she returned to work. In a May 20, 2003 letter,
Dr. R. Bruce Heppenstall, an attending Board-certified orthopedic surgeon, noted that a magnetic resonance imaging
scan showed possible mild impingement syndrome with degenerative changes. Dr. Matthew L. Ramsey, an
attending Board-certified orthopedic surgeon, submitted a June 4, 2003 report noting limited internal rotation of the
right shoulder and mild tendinosis of the rotator cuff without a full thickness tear. In reports from July 24, 2003 to
June 15, 2004, Dr. David A. Lenrow, an attending Board-certified physiatrist, diagnosed adhesive capsulitis, rotator
cuff tendinitis and possible cervical radiculopathy.
3

Figure 16-40, page 476 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Impairments Due to Lack of Flexion and Extension of Shoulder.”
4

Figure 16-43, page 477 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Impairments Due to Lack of Abduction and Adduction of Shoulder.”
5

Table 16-34, page 509 of the fifth edition of the A.M.A., Guides is entitled, “Upper Extremity Joint Impairment
Due to Loss of Grip or Pinch Strength.”
6

Table 18-1, page 574 of the fifth edition of the A.M.A., Guides is entitled, “Algorithm for Rating Pain-Related
Impairment in Conditions Associated With Conventionally Related Impairment.”

2

atrophy according to Table 17-6, page 5307 and a three percent impairment due to pain according
to Table 18-1. He totaled these impairments to equal an 11 percent permanent impairment of the
right leg.
On January 5, 2005 the Office referred Dr. Weiss’ report to an Office medical adviser to
determine percentage of permanent impairment. In a January 9, 2005 report, an Office medical
adviser concurred with Dr. Weiss’ determination of a five percent upper extremity impairment
due to restricted flexion and abduction. He explained that the A.M.A., Guides precluded grip
strength and pain as elements of an impairment rating for restricted motion. The medical adviser
also opined that Dr. Weiss’ diagnosis of atrophy in the right lower extremity was not clinically
supported.
On January 25, 2005 the Office referred appellant to Dr. Kevin Hanley, a Board-certified
orthopedic surgeon, for a second opinion examination. Dr. Hanley submitted a February 9, 2005
report finding that appellant had reached maximum medical improvement. He reviewed the
medical record and statement of accepted facts. On examination, Dr. Hanley found a 10 degree
loss of flexion in the right shoulder and no objective deficits of the right leg. He diagnosed a
resolved right shoulder contusion with underlying acromioclavicular joint arthrosis, a resolved
right hand and thumb sprain and resolved right hip contusion. Dr. Hanley concluded that
appellant had a one percent impairment of the right upper extremity according to Figure 16-40,
page 476 and a zero percent impairment of the right lower extremity.
The Office referred Dr. Hanley’s report to an Office medical adviser for review. In a
May 25, 2005 report, the Office medical adviser concurred that appellant did not have a ratable
impairment of the right lower extremity. The adviser stated that his recommendation of a five
percent impairment of the right upper extremity remained unchanged.
The Office determined there was a conflict of medical opinion between Dr. Weiss, for
appellant, and Dr. Hanley, for the government. On August 25, 2005 the Office referred
appellant, the medical record and a statement of accepted facts to Dr. Barry Snyder, a Boardcertified orthopedic surgeon, for an impartial medical opinion. In a December 23, 2005 report,
Dr. Snyder reviewed the statement of accepted facts and provided a history of injury and
treatment. On examination of the right upper extremity, he observed 7 kg grip strength on the
right and 19 kg on the left and flexion limited to 110 degrees. Dr. Snyder found normal reflexes,
strength and muscle mass of the lower extremities. He diagnosed an idiopathic osteoarthrosis of
the right acromioclavicular joint with mild impingement, a resolved right thumb fracture and
nonoccupational bilateral genu valgus. Dr. Snyder commented that appellant’s bilateral knee
symptoms were attributable to her morbid obesity, as she was 65 inches tall and weighed 210
pounds. Regarding appellant’s right shoulder, he opined that a loss of 30 degrees of flexion
equaled a two percent impairment, a loss of 60 degrees abduction equaled a three percent
impairment and internal rotation limited to 35 degrees equaled a two percent impairment.
Dr. Snyder totaled these percentages to equal a seven percent impairment of the right upper
extremity. He did not refer to specific elements of the A.M.A., Guides.
7

Table 17-6, page 530 of the fifth edition of the A.M.A., Guides is entitled, “Impairment Due to Unilateral Leg
Muscle Atrophy.”

3

On January 20, 2006 the Office referred the medical evidence to an Office medical
adviser to determine the appropriate percentages of permanent impairment. In a January 20,
2006 report, the Office medical adviser opined that Dr. Hanley’s measurements were the most
reliable. He therefore concurred with Dr. Hanley’s rating of a one percent permanent
impairment of the right upper extremity based on restricted shoulder flexion. The medical
adviser opined that appellant had reached maximum medical improvement as of February 9,
2005, the date of Dr. Hanley’s examination.
By decision dated January 31, 2006, the Office granted appellant a schedule award for a
one percent impairment of the right upper extremity.
On February 3, 2006 appellant requested a hearing.
By decision dated and finalized April 20, 2006, an Office hearing representative found
that the case was not in posture for a decision. The hearing representative set aside the
January 31, 2006 decision, finding that the Office improperly relied on Dr. Hanley’s opinion as
second opinion specialist and not Dr. Snyder’s opinion as impartial medical examiner. The
hearing representative noted that Dr. Snyder opined both that appellant had a seven percent
impairment of the right upper extremity and that there were no residuals of the accepted injury.
The hearing representative directed that the Office to obtain a supplemental report from
Dr. Snyder addressing the extent and cause of any permanent impairment.
In May 10 and July 20, 2006 letters, the Office requested that Dr. Snyder submit a
supplemental report explaining the nature and extent of any residuals of the March 25, 2003
injuries. On August 7, 2006 Dr. Snyder stated that there were “no objective findings of
impairment of [the] right upper extremity causally related to the March 25, 2003 work injury.”
He found that appellant had no impairment according to the A.M.A., Guides.
By decision dated August 31, 2006, the Office affirmed the January 31, 2006 decision,
finding that appellant had not established that she sustained greater than a one percent
impairment of the right upper extremity. The Office found that the weight of the medical
evidence continued rested with Dr. Snyder as impartial medical examiner, who opined that
appellant had no impairment related to the accepted March 25, 2003 injuries.
On September 6, 2006 appellant requested a hearing, held December 11, 2006. At the
hearing, she asserted that she could not clean her home or style her hair due to pain and
immobility in her right arm. Appellant alleged that Dr. Hanley did not properly examine her.
She asserted that the Office medical adviser improperly selected elements from among the three
impairment ratings and that she was entitled to a schedule award for impairment of the right
knee.
By decision dated and finalized February 23, 2007, an Office hearing representative
affirmed the August 31, 2006 decision, finding that appellant did not have more than one percent
impairment of the right upper extremity. The hearing representative found that Dr. Snyder’s
opinion as impartial medical examiner represented the weight of the medical evidence.

4

LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act8 provide for
compensation to employees sustaining impairment from loss or loss of use of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office as a standard for
evaluation of schedule losses and the Board has concurred in such adoption.9 As of February 1,
2001, schedule awards are calculated according to the fifth edition of the A.M.A., Guides,
published in 2000.10
The standards for evaluation the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.11 Chapter 16
of the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedures for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation, or
loss of strength.12 Chapter 17 of the A.M.A., Guides sets forth the grading schemes and
procedures for evaluating impairments of the lower extremities.13
Section 8123(a) of the Act provides that, when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.14 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.15
When the Office secures an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the opinion from the specialist requires
8

5 U.S.C. §§ 8101-8193.

9

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10

See FECA Bulletin 01-05 (issued January 29, 2001) (schedule awards calculated as of February 21, 2001
should be evaluated according to the fifth edition of the A.M.A., Guides. Any recalculations of previous awards
which result from hearings, reconsideration or appeals should, however, be based on the fifth edition of the A.M.A.,
Guides effective February 1, 2001).
11

See Paul A. Toms, 28 ECAB 403 (1987).

12

A.M.A. Guides 433-521, Chapter 16, “The Upper Extremities,” (5th ed. 2001).

13

Id. at 523-61, Chapter 17, “The Lower Extremities,” (5th ed. 2001).

14

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991)

15

Delphia Y. Jackson, 55 ECAB 373 (2004).

5

clarification or elaboration, the Office has the responsibility to secure a supplemental report from
the specialist for the purpose of correcting a defect in the original report.16 If the specialist is
unwilling or unable to clarify or elaborate on his or her opinion as requested, the case should be
referred to another appropriate impartial medical specialist.17 Unless this procedure is carried
out by the Office, the intent of section 8123(a) of the Act18 will be circumvented when the
impartial specialist’s medical report is insufficient to resolve the conflict of medical evidence.19
While an Office medical adviser may review the opinion of an impartial medical specialist, the
resolution of the conflict is the responsibility of the impartial medical specialist.20
ANALYSIS
The Office accepted that appellant sustained a right shoulder strain, fracture of the first
metacarpal of the right thumb, right elbow contusion and right knee contusion. She claimed a
schedule award, submitting a September 9, 2004 report from Dr. Weiss, an attending osteopath.
Referring to the A.M.A. Guides, Dr. Weiss found a three percent impairment due to limited right
shoulder flexion and a two percent impairment due to limited abduction. He noted additional
impairments for pain and weakness, totaling a 27 percent impairment of the right arm. Dr. Weiss
also opined that appellant had an 11 percent impairment of the right leg due. An Office medical
adviser concurred only with Dr. Weiss’ assessment of a five percent impairment of the right arm
due to restricted motion.
The Office obtained a second opinion from Dr. Hanley, a Board-certified orthopedic
surgeon. In a February 9, 2005 report, he opined that appellant had a one percent impairment of
the right upper extremity due to restricted shoulder flexion. Dr. Hanley found no impairment of
the right leg.
The Office found a conflict of opinion between Dr. Weiss, for appellant, and Dr. Hanley,
for the government. The Office referred appellant to Dr. Snyder, a Board-certified orthopedic
surgeon, as the impartial medical examiner. He submitted a December 23, 2005 report finding a
seven percent impairment of the right upper extremity due to restricted flexion, abduction and
internal rotation.
In a January 20, 2006 report, an Office medical adviser selected Dr. Hanley’s one percent
impairment rating over Dr. Snyder’s seven percent rating. Based on the Office medical adviser’s
report, the Office issued the January 31, 2006 schedule award for a one percent impairment of
the right arm. An Office hearing representative vacated the schedule award on April 20, 2006,
finding that the Office medical adviser improperly failed to rely on Dr. Snyder’s opinion as
16

Harry T. Mosier, 49 ECAB 688 (1998).

17

Guiseppe Aversa, 55 ECAB 164 ( 2003).

18

5 U.S.C. § 8123(a).

19

Harold Travis, 30 ECAB 1071 (1979).

20

See, e.g., Willie C. Howard, 55 ECAB 564 (2004) (where the Office medical adviser concurred that the
impartial medical specialists’ impairment rating was appropriate under the fifth edition of the A.M.A., Guides).

6

impartial medical examiner. The Office obtained an August 7, 2006 supplemental report from
Dr. Snyder, who opined that appellant had no impairments related to the accepted injuries.
Obtaining this clarification was in accordance with the Office’s procedures.21 By August 31,
2006 decision, the Office again found that appellant had a one percent impairment of the right
arm. Although the Office stated that it accorded Dr. Snyder the weight of the medical evidence,
it clearly relied on Dr. Hanley’s opinion. Following an oral hearing, the Office issued a
February 23, 2007 decision affirming the August 31, 2006 decision. The Office again proffered
its reliance on Dr. Snyder’s opinion but found Dr. Hanley’s assessment controlling.
The Board finds that the Office improperly failed to rely on the opinion of Dr. Snyder,
the impartial medical examiner. Instead, the Office relied on the Office medical adviser’s
interpretation of the various schedule award assessments of record. As set forth above, an Office
medical adviser may review the opinion of an impartial medical specialist. However, the
resolution of the conflict is the responsibility of the impartial medical specialist.22 In this case
the Office medical adviser circumvented the Office’s procedures for ensuring that section
8123(a) of the Act was properly implemented.23 Therefore, the case must be remanded for
further development.
On remand of the case, the Office shall request that Dr. Snyder submit a second
supplemental report regarding whether the impairments he noted on examination were related to
the accepted injuries. This report shall refer to the relevant tables and grading schemes of the
A.M.A., Guides. The Office should also develop whether appellant sustained any impairment of
the right lower extremity caused by the accepted injuries.24 Following this and any other
development deemed necessary, the Office shall issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for a decision. The case will be remanded
to the Office for further development regarding the appropriate percentages of permanent
impairment related to the accepted injuries.

21

Harry T. Mosier, 49 ECAB 688 (1998).

22

Willie C. Howard, supra note 20.

23

Harold Travis, supra note 19.

24

The Board notes that appellant asserted her entitlement to a schedule award for right lower extremity
impairment and submitted medical evidence addressing such impairment. The Office did not formally adjudicate
whether appellant established any permanent impairment of the right lower extremity related to the accepted
March 25, 2003 injuries.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 23, 2007 is set aside and the case remanded for further
development consistent with this decision and order.
Issued: February 25, 2008
Washington, DC

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

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

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

8