United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OKLAHOMA CITY MEDICAL CENTER,
Oklahoma City, OK, Employer
__________________________________________

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Appearances:
Joseph E. Allman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1553
Issued: March 2, 2016

Case Submitted on the Record

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

JURISDICTION
On July 13, 2015 appellant, through counsel, filed a timely appeal of January 28 and
March 2, 2015 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c)(1) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish disability
for the period November 6, 2013 through August 11, 2014 due to her accepted employment
injuries; and (2) whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective March 2, 2015.
On appeal, counsel argued that the weight of the medical evidence rested with appellant’s
attending physician, that there was no conflict of medical opinion, that the impartial medical
1

5 U.S.C. § 8101 et seq.

examiner improperly opined that appellant exhibited symptom magnification, and that the
surveillance video was improperly utilized by OWCP and the impartial medical examiner.
FACTUAL HISTORY
On August 20, 2013 appellant, then a 25-year-old nursing assistant, filed a claim for
traumatic injury (Form CA-1) alleging that she sustained pain in her stomach on August 13, 2013
while pushing a patient in a wheelchair. She reported experiencing a ripping sensation in her
lower abdomen.
Dr. J. Arden Blough, a family practitioner, examined appellant on August 21, 2013 and
diagnosed right inguinal hernia, lower abdominal sprain/strain, and lumbar spine sprain and
strain. He described her history of injury as pushing a wheelchair containing an oversized
patient and experiencing a ripping pain in her abdomen. Dr. Blough opined that appellant’s
diagnosed conditions were the result of her work incident. He found that she was totally
disabled from August 21 through September 8, 2013. On September 18, 2013 Dr. Blough found
that appellant was totally disabled through October 16, 2013.
In a note dated September 25, 2013, Dr. Blough again made the preliminary diagnosis of
right inguinal hernia and opined that it was not safe for appellant to work. He concluded that the
August 13, 2013 injury was the major cause of injury to her lumbar spine, abdomen, and pelvis.
Appellant underwent an abdominal computerized tomography (CT) scan on October 2, 2013
which was interpreted as unremarkable with no anterior wall hernia. An October 1, 2013 lumbar
magnetic resonance imaging (MRI) scan showed a small posterior annular tear at L4-5 with facet
arthropathy and a broad-based disc bulge.
In a decision dated October 31, 2013, OWCP denied appellant’s traumatic injury claim
finding that she failed to establish that the incident occurred as alleged.
On November 22, 2013 appellant requested reconsideration. She submitted a factual
statement dated October 8, 2013 and alleged on August 13, 2013 she was pushing an oversized
patient in a wheelchair. Appellant noted that the wheelchair had been dismantled so that the
patient could fit on the chair. She asserted that she could use only a one hand bar to move the
wheelchair and that, as she pulled backward to enter the elevator, she felt a ripping pain down
her side and back. Appellant did not immediately stop work, but later sought medical attention.
Dr. Blough examined appellant on October 4, 2013 and noted her MRI scan findings. He
found tenderness in the inguinal canal, decreased range of motion in the lumbar spine with
tenderness to palpation, loss of sensation in the lower extremities, and weakness bilaterally in the
lower extremities worse on the right. Dr. Blough repeated his previous diagnoses and
conclusions.
By decision dated February 14, 2014, OWCP found that appellant had established that
the employment incident occurred as alleged, but concluded that she had not submitted sufficient
medical opinion evidence to establish a diagnosed condition. On March 5, 2014 it rescinded the
February 14, 2014 decision and again denied her claim finding that she failed to establish an
injury resulting from the accepted employment incident.

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Counsel requested reconsideration on appellant’s behalf through a letter and form dated
May 16, 2014. He argued that Dr. Blough’s reports were sufficient to establish that her
diagnosed conditions were caused by her employment incident.
By decision dated August 7, 2014, OWCP accepted appellant’s claim for sprain of the
lower abdomen and a lumbar sprain. It explained that her claim for a right inguinal hernia was
not accepted as the CT scan did not support this diagnosis.
Appellant filed a claim for compensation (Form CA-7) on August 11, 2014 and requested
wage-loss compensation from August 21, 2013 through August 11, 2014. The employing
establishment controverted her claim for compensation on August 14, 2014, as appellant had
been removed from employment for cause effective November 29, 2014. It further stated that
she did not report for duty on October 25 and November 1, 2013 as directed. The employing
establishment noted that appellant received continuation of pay from September 4 through
30, 2013. It provided a November 19, 2013 letter which advised her that she was being
discharged during her probationary period as she had failed to report to duty as directed and did
not request approval for leave from November 4 through 15, 2013. The employing
establishment charged appellant with 80 hours of absence without leave and concluded that her
conduct was not within the standards expected.
Dr. Blough completed a note on August 18, 2014 and opined that appellant was totally
disabled from August 21, 2013 through September 16, 2014. He attributed this disability to
“exacerbation of work-related injuries.”
In a letter dated August 22, 2014, OWCP informed appellant that the medical evidence
submitted was insufficient to support her claimed period of wage-loss compensation. It allowed
30 days for a narrative medical report addressing her claimed periods of disability.
Dr. Blough completed a report on August 13, 2014. He described appellant’s history of
injury on August 13, 2013 and reviewed the CT and MRI scan reports. Dr. Blough noted that he
had recommended evaluation by a spine specialist, but that as her claim was denied and she was
terminated by the employing establishment, she had been unable to undergo treatment since
October 4, 2013. He found that appellant had continued pain in her lumbar spine and lower
abdomen. Dr. Blough found lumbar spine loss of range of motion, pain, and weakness
exacerbated by lifting, bending, twisting, sitting, or standing. He diagnosed lower abdominal
sprain/strain, lumbar sprain with trigger point formation, and posterior annual tear at L4-5 and
broad-based disc bulge at L4-5 with mild facet arthropathy at L5-S1. Dr. Blough opined that
appellant was totally disabled since August 13, 2013 due to the accepted employment injury. He
recommended further medical treatment.
OWCP authorized compensation benefits from August 21 through September 30, 2013
and from October 1 through November 5, 2013.
On September 10, 2014 OWCP referred appellant for a second opinion evaluation with
Dr. Dennis Foster, a Board-certified orthopedic surgeon. Dr. Foster completed a report on
September 26, 2014. He described appellant’s employment duties as a nursing assistant as well
as her August 13, 2013 employment incident. Dr. Foster noted her complaints of severe pain in

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the back and pelvic region. He also noted that appellant reported pain radiating into her right leg
with weakness. Dr. Foster found that she walked with a “very dramatic gait” with her right leg
completely stiff and “hobbling down the hall in a very exaggerated fashion.” On examination he
found no spasm in the musculature of the lumbar back, symmetric deep tendon reflexes, and
poor attempts at knee flexion or extension bilaterally on manual muscle testing. Dr. Foster
reported that appellant complained of pain throughout the examination. He reviewed her
October 1, 2013 MRI scan and found “a very minute brightening posteriorly at L4-5 possibly
representing an annular tear.” Dr. Foster did not find disc protrusion or herniation. He opined
that appellant was grossly exaggerating her present condition. Dr. Foster recommended an
additional MRI scan to clarify whether appellant had an annular tear and opined that this
condition, if present, would be attributable to the August 13, 2013 work injury. He noted,
“[Appellant] may or may not have had some low back pain, however, her physical findings are
grossly exaggerated and in my opinion are unreliable due to her manipulation of the findings
themselves.” Dr. Foster opined, “I do believe [that appellant] is capable of working. I do
believe that her symptomatology is grossly exaggerated from a subjective stand point.” He
indicated that appellant could work eight hours a day with restrictions.
In a letter dated October 3, 2014, OWCP provided Dr. Blough with a copy of Dr. Foster’s
report and requested that he opine whether appellant was capable of working eight hours a day
with restrictions. It also requested that she undergo an additional MRI scan.
Dr. Foster completed a supplemental report on October 14, 2014 and opined that
appellant was capable of working eight hours a day with his previously provided restrictions
beginning on November 5, 2013.
Dr. Blough responded on October 22, 2014 and disagreed with Dr. Foster’s findings and
opinions. He noted that he had examined appellant on multiple occasions and that the results of
her physical examination were consistent. Dr. Blough found loss of range of motion, pain, and
weakness in her lumbar spine. He reported a positive straight leg raising test and loss of
sensation to monofilament testing. Dr. Blough reviewed both MRI scans and opined that
appellant’s condition had deteriorated such that she was limited in her mobility and required
narcotic pain medication. He contended that this medication caused “somnolence and, therefore,
[appellant] would pose a potential danger to herself or others, if she were to return to work….”
Dr. Blough asserted that appellant was not capable of working eight hours a day and noted that
he had scheduled a functional capacity evaluation. He opined that she was totally disabled and
recommended further medical treatment.
Appellant underwent a lumbar MRI scan on October 17, 2014 which demonstrated
minimal annular disc bulges at L2-3, L3-4, and L5-S1. At L4-5 the MRI scan showed mild
diffuse annular disc bulge with slight effacement of the ventral thecal sac, mild bilateral facet
joint hypertrophy, but no significant central canal narrowing.
The employing establishment provided OWCP video surveillance on October 27, 2014.
It alleged that the video included appellant lifting and carrying “a decent sized dog” as well as
her toddler on different occasions. The video included activities on September 11, 12, 13 and
14, 2013. Appellant is recorded walking, standing, bending, entering and exiting vehicles,
running a few steps, leading her toddler by the hand, lifting and carrying a small dog, as well as,

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swinging and lifting her toddler. OWCP notified her that the employing establishment had
submitted a surveillance video and directed her to provide a written request for a copy of this
video. It also informed appellant that an impartial medical examination was being scheduled.
Appellant had a functional capacity evaluation on October 28, 2014.
In a letter dated November 18, 2014, OWCP informed appellant of her scheduled
impartial medical examination with Dr. Sam Framjee, a Board-certified orthopedic surgeon. It
referred her, a statement of accepted facts, the surveillance DVD, and a list of questions to
Dr. Framjee. In a report dated December 12, 2014, Dr. Framjee described appellant’s August 13,
2013 employment incident and reviewed her medical treatment. He found that she walked with a
hysterical gait pattern and an equinus gait on the left side with no foot drop. Dr. Framjee
reported that appellant was jumpy to superficial touch in the lumbar spine. He found negative
straight leg raising and inconsistent hypoesthesia in the right lower extremity. Dr. Framjee
reported breakaway weakness in both legs more on the right. He noted that appellant’s
October 17, 2014 MRI scan noted an impression of mild annular disc bulging at multiple levels
with no focal disc protrusion or neural impingement. Dr. Framjee concluded, “I am unable to
substantiate the patient’s symptoms to my physical findings. The clinical picture is indicative of
symptom magnification.” He noted that he saw no evidence of an identifiable injury to
appellant’s lumbar spine due to the August 13, 2013 work incident. Dr. Framjee opined that she
had a sprain of the lumbar spine on August 13, 2013 that this condition was resolved and that her
current symptoms were suggestive of symptom magnification. He indicated that appellant’s
temporary total disability due to lumbar strain should have ceased within two or three weeks
after the August 13, 2013 employment injury. Dr. Framjee concluded that she had no physical
limitations due to her work-related conditions and could gradually return to full-duty work
within one month.
In a supplemental report dated December 12, 2014, Dr. Framjee indicated that he
reviewed the surveillance video. He found that this demonstrated appellant walking
independently without any equinus gait and performing activities of daily living normally.
Dr. Framjee concluded that the activities demonstrated that she could perform her normal
activities of daily living without any difficulty.
OWCP provided appellant with a notice of proposed termination on January 14, 2015. It
informed her that Dr. Framjee’s December 12, 2014 reports were entitled to the weight of the
medical opinion evidence and established that her accepted conditions and disability had
resolved. OWCP allowed 30 days for a response.
By decision dated January 28, 2015, OWCP denied appellant’s claim for compensation
for the period November 6, 2013 through August 11, 2014. It found that Dr. Framjee’s reports
were entitled to the weight of the medical opinion evidence and established that her accepted
lumbar sprain had resolved within three weeks of the incident of August 13, 2013.
Dr. Blough completed a report on January 26, 2015 and opined that appellant continued
to have lumbar spine pain with radicular symptoms including numbness and tingling radiating
into both legs. He diagnosed lumbar sprain/strain, lumbar radiculopathy, and lumbar annual tear
at L4-5. Dr. Blough further opined that appellant was totally disabled and required further

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invasive treatment including lumbar discography. He asserted that the excessive force required
by her to push a large heavy patient in a wheelchair on August 13, 2013 caused a lumbar annual
tear at L4-5 and that an annual tear caused pain varying from moderate to severe. Dr. Blough
concluded that appellant’s injuries arose out of her work-related accident.
On January 28, 2015 Dr. Blough responded to the notice of proposed termination and
disagreed with Dr. Framjee. He opined that appellant sustained not only a lumbar sprain, but
disc bulges at multiple levels and an annular fissure at L4-5. Dr. Blough further argued that she
had provided consistent findings on the nine occasions that he examined her and that she had not
demonstrated any behaviors consistent with symptom magnification. He reported decreased
range of motion in the lumbar spine, loss of strength, diminished reflexes, and loss of sensation
in the bilateral lower extremities. Dr. Blough also found exacerbation of symptoms with lifting,
bending, twisting, sitting, or standing as well as positive straight leg raising. He reviewed
appellant’s functional capacity evaluation and noted that she reported right lower extremity
numbness and weakness and demonstrated consistent objective findings of weakness of the right
lower extremity such that she was very limited in her physical capabilities. Dr. Blough opined
that she remained totally disabled due to her August 13, 2013 employment injury.
By decision dated March 2, 2015, OWCP terminated appellant’s wage-loss and medical
benefits effective that date. It found that the weight of the medical opinion evidence rested with
Dr. Framjee.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden to establish the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.4
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.5 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a

2

5 U.S.C. §§ 8101-8193.

3

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

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basis for payment of compensation.6 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.7
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical
evidence which includes a physician’s detailed medical opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.9 Neither the fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.10
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.11 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.12
In situations where there are opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.13

6

Id.

7

Id.

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

Leslie C. Moore, 52 ECAB 132 (2000).

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

Supra note 2, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

12

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

13

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

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ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that she was
totally disabled for the period November 6, 2013 through August 11, 2014 due to her accepted
employment injuries.
Appellant’s attending physician, Dr. Blough, supported appellant’s total disability for
work in reports dated from August 21 to October 4, 2013. On August 7, 2014 OWCP accepted
her claim for sprain of the lower abdomen and sprain of the lumbar back. Appellant filed a claim
for compensation on August 11, 2014 for the period August 21, 2013 through August 11, 2014.
OWCP authorized compensation benefits from August 21 through September 30, 2013 and from
October 1 through November 5, 2013.
In support of disability on and after November 5, 2013, Dr. Blough completed a note on
August 18, 2014 and opined that appellant was totally disabled from August 21, 2013 through
September 16, 2014 due to “exacerbation of work-related injuries.”
OWCP referred appellant for a second opinion examination with Dr. Foster, who
completed a second opinion report on September 26, 2014. Dr. Foster opined that she was
grossly exaggerating her present condition and opined that she was capable of working eight
hours a day with restrictions. In his supplemental report dated October 14, 2014, he opined that
appellant was capable of working eight hours a day with restrictions beginning on
November 5, 2013.
On October 22, 2014 Dr. Blough disagreed with Dr. Foster and again opined that
appellant was totally disabled. Due to this disagreement between appellant’s physician and a
physician for OWCP, the Board finds that, contrary to counsel arguments on appeal, OWCP
properly determined that there was a conflict of medical opinion on the issue of the extent and
periods of disability and properly referred appellant to Dr. Framjee to resolve this conflict,
pursuant to 5 U.S.C. § 8123(a).
In his December 12, 2014 report, Dr. Framjee provided a history of injury and reviewed
appellant’s medical treatment. On examination, he reported that she walked with a hysterical
gait pattern and an equinus gait on the left side with no foot drop. Dr. Framjee found
inconsistent hypoesthesia in the right leg as well as breakaway weakness in both lower
extremities. He opined that appellant had a sprain of the lumbar spine on August 13, 2013, that
this condition was resolved, and that her current symptoms were suggestive of symptom
magnification. Dr. Framjee indicated that her temporary total disability due to lumbar strain
should have ceased within two or three weeks after the August 13, 2013 employment injury.
In a supplemental report dated December 12, 2014, Dr. Framjee indicated that he
reviewed the surveillance video. He found that this revealed appellant walking independently
without any equinus gait and performing activities of daily living normally. Dr. Framjee
concluded that the activities demonstrated that she could perform her normal activities of daily
living without any difficulty.

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The Board finds that Dr. Framjee’s reports are entitled to the special weight of the
medical evidence and do not support appellant’s claim for continuing disability on or after
November 5, 2013. These reports were based on an accurate history of injury, provided detailed
physical findings, and offered a clear explanation of the basis for finding that she was not totally
disabled on or after November 5, 2013.
On appeal counsel argued that Dr. Framjee improperly opined that appellant exhibited
symptom magnification and improperly utilized the surveillance video. The Board has held that,
in certain circumstances, videotape evidence may be of value to a physician offering an opinion
regarding a claimant’s medical condition. It may reflect on the patient’s reliability as a historian
or on the actual ranges of motion, lifting, or other physical activities the claimant may perform.
However, a videotape may be incorrect or misleading to a physician if there are errors, such as
the identity of the individual recorded on the videotape or whether certain activities were
facilitated by the use of medication. OWCP has the responsibility to make the claimant aware
that it is providing videotape evidence to a medical expert. If the claimant requests a copy of the
videotape, one should be made available and the employee given a reasonable opportunity to
offer any comment or explanation regarding the accuracy of the recording.14 OWCP informed
appellant of the surveillance video on October 31, 2014 and at the same time informed her that
an impartial medical examination would be scheduled. It instructed her to request a copy of the
video in writing in keeping with its procedures.15 Appellant, nor her counsel, have requested a
copy of the surveillance video and there is no evidence of wrongdoing on the part of OWCP in
regard to the video.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.17 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.18 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.19 To terminate
14

J.M., 58 ECAB 478 (2009).

15

OWCP Procedure Manual, Privacy Act, Chapter 1.400.4.d (November 2000) (defining a request as a written
inquiry).
16

See D.B., Docket No. 14-0451 (issued August 12, 2014) (finding that counsel must request the video); J.C.,
Docket No. 14-1422 (issued March 16, 2015).
17

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

18

Id.

19

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

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authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
and medical benefits effective March 2, 2015.
As previously described, there was a conflict of medical opinion evidence necessitating
referral of appellant, by OWCP, to Dr. Framjee to resolve the issue of the degree and period of
her employment-related disability. Dr. Framjee found in his December 12, 2014 report, that she
walked with a hysterical gait pattern and an equinus gait on the left side with no foot drop. He
found negative straight leg raising and inconsistent hypoesthesia in the right lower extremity.
Dr. Framjee also reported breakaway weakness in both lower extremities more on the right. He
reviewed appellant’s more recent MRI scan dated October 17, 2014 and found that it
demonstrated mild annular disc bulging at multiple levels with no focal disc protrusion or neural
impingement. Dr. Framjee concluded that she was demonstrating symptom magnification as he
could not substantiate her symptoms based on her clinical examination. He diagnosed sprain of
the lumbar spine as a result of the August 13, 2013 employment injury and opined that this
condition was resolved, and that appellant’s current symptoms were suggestive of symptom
magnification. Dr. Framjee opined that her temporary total disability due to lumbar strain
resolved within two or three weeks of her injury. He concluded that appellant had no physical
limitations due to her work-related injury. Dr. Framjee reviewed the surveillance video and
found that she could perform activities of daily living normally without the gait demonstrated in
his office.
The Board finds that Dr. Framjee’s report is based on a proper history of injury and
provides findings in support of his conclusion that appellant’s employment-related condition had
resolved without residuals and that she had no continuing disability. This report represents the
special weight of the medical evidence and was sufficient to meet OWCP’s burden of proof to
terminate her wage-loss and medical benefits effective March 2, 2015.
Following Dr. Framjee’s report, Dr. Blough submitted two additional reports dated
January 26 and 28, 2015. He continued to support appellant’s ongoing lumbar conditions
including lumbar sprain, lumbar radiculopathy, and lumbar annual tear at L4-5. Dr. Blough also
supported her ongoing total disability due to these conditions. He opined that appellant did not
demonstrate any behaviors consistent with symptom magnification. The Board finds that these
reports are not based on a proper factual background and are insufficient to overcome the weight
of Dr. Framjee’s reports or to create a conflict with those reports. The additional conditions
alleged by Dr. Blough have not been accepted by OWCP and are not based on diagnostic studies.
Dr. Framjee did not find an annular tear on the second MRI scan and the report of this test was
also negative. As Dr. Blough was on one side of the conflict that Dr. Framjee resolved, the

20

Id.

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additional reports from Dr. Blough are insufficient to overcome the special weight accorded
Dr. Framjee’s report as the impartial medical specialist or to create a new conflict with it.21
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
totally disabled for the period November 6, 2013 through August 11, 2014 due to her accepted
employment injuries. The Board further finds that OWCP met its burden of proof to terminate
her wage-loss compensation and medical benefits effective March 2, 2015.
ORDER
IT IS HEREBY ORDERED THAT the March 2 and January 28, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 2, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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

Docket No. 08-474
Issued: June 20, 2008

Case Submitted on the Record

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

JURISDICTION
On December 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 12 and July 26, 2007 merit decisions concerning his claims for
a recurrence of disability and an employment-related occupational disease. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of total disability on or after November 14, 2005 due to his July 12, 1995 employment
injury and whether he met his burden of proof to establish that he sustained an occupational
disease of his right arm which caused disability on or after November 14, 2005.
FACTUAL HISTORY
The Office accepted that on July 12, 1995 appellant, then a 44-year-old contract
specialist, sustained right lateral epicondylitis and a right elbow contusion when a 600-pound

mail wagon struck his right elbow.1 He had intermittent periods of disability and on July 9, 1997
he underwent a right radial tunnel release with neurolysis superficial nerve, posterior
interosseous nerve, lateral epicondylectomy and ostectomy. The surgical procedure was
authorized by the Office. In April 1998, appellant returned to work for the employing
establishment. He initially performed limited-duty work, but he gradually increased his duties
such that he was performing regular, full-time work.2
Appellant stopped work on November 15, 2005 and suggested that he sustained a
recurrence of total disability due to his July 12, 1995 employment injury. At the time, he was
performing regular, full-time work working as a contract specialist. On December 27, 2005
appellant filed an occupational disease claim (file number 03-2045182) alleging that he sustained
injury to his right upper extremity due to his work duties. Regarding the nature of the injury, he
stated, “Numbness in right fingers, pain in right wrist, hand, pain and burning in forearm, elbow
area to upper arm, pain in right shoulder….” In accompanying statements, appellant asserted
that the condition was caused by typing on a keyboard, using a computer mouse, answering
telephones and performing such clerical duties as filing, handwriting and scanning documents.
In a February 1, 2006 report, Dr. Scott M. Fried, an attending Board-certified orthopedic
surgeon, noted that he first evaluated appellant for his upper extremity problems on
August 17, 2005. He detailed appellant’s medical history since his July 12, 1995 employment
injury and noted that he reported numerous upper extremity complaints, more on the right than
the left. Dr. Fried indicated that appellant sustained a contusion to the right radial nerve on
July 12, 1995. He concluded that October 2005 electromyogram (EMG) and nerve conduction
velocity (NCV) studies showed that appellant continued to have disabling residuals of the
July 12, 1995 injury. Dr. Fried also concluded that appellant had right carpal tunnel syndrome,
right overuse syndrome with magnetic resonance imaging (MRI) evidence of rotator cuff
involvement and right shoulder capsulitis due to his repetitive work activities.3
In a March 2, 2006 decision, the Office denied appellant’s occupational disease claim on
the grounds that he did not submit sufficient medical evidence in support thereof. In a June 5,
2006 decision, an Office hearing representative set aside the Office’s March 2, 2006 decision and
remanded the case to the Office for further development of the medical evidence. The Office
hearing representative found that the opinion of Dr. Fried raised an uncontradicted inference that
appellant either had disability after November 14, 2005 due to his July 12, 1995 injury or a new
right-sided occupational injury. The Office hearing representative indicated that appellant
should be referred to a physician by the Office for further evaluation.
On remand appellant was referred to Dr. Kevin F. Hanley, a Board-certified orthopedic
surgeon.4 On July 11, 2006 Dr. Hanley provided a description of appellant’s factual and medical
1

This claim bore the file number 03-210790.

2

Appellant attempted to use assistive devices with varying success.

3

Dr. Fried also stated, “His overuse on the left has continued, resulting in his median nerve carpal tunnel and
repetitive strain basis as well as his radial nerve involvement.” The present case does not concern appellant’s left
arm and the matter is not currently before the Board.
4

Prior to the referral, the Office added documents from file number 03-210790 to the record.

2

history, including his medical treatment since the July 12, 1995 employment injury and his right
arm complaints since returning to work in 1998. He indicated that appellant had full range of
motion of the right arm but that he withdrew from even light touch of the right forearm, hand and
elbow area. Dr. Hanley indicated that he did not believe appellant had any objective abnormality
due to work factors and indicated that he did not believe that his work duties were sufficiently
repetitive or varied to cause injury. He made note of appellant’s significant nonorganic and
emotional overlay and stated, “I do not believe that he suffers at the present time from either a
recurrent injury of the 1995 episode or a new injury due to subsequent work exposure.” In an
accompanying form, Dr. Hanley indicated that appellant could perform his regular work.
In a July 19, 2006 decision, the Office denied appellant’s claim that he sustained an
occupational disease of his right arm which caused disability on or after November 14, 2005. It
indicated that the opinion of Dr. Hanley was well rationalized, but that the opinion of Dr. Fried
was of limited probative value.5 In an October 3, 2006 decision, an Office hearing representative
set aside the Office’s July 19, 2006 decision and remanded the case to the Office for referral of
appellant to an impartial medical specialist. He found that there was a conflict in the medical
evidence between Dr. Fried and Dr. Hanley regarding whether appellant sustained an
employment-related recurrence of disability and regarding whether he sustained a new rightsided occupational disease.6
The Office referred appellant and the case record to Dr. Richard G. Schmidt, a Boardcertified orthopedic surgeon, for an examination and evaluation regarding whether he sustained
an employment-related recurrence of disability and whether he sustained a new right-sided
occupational disease.7 On November 29, 2006 Dr. Schmidt provided an extensive discussion of
appellant’s factual and medical history, including his medical treatment since his July 12, 1995
injury and upper extremity complaints since returning to work. He noted that appellant
described his job as a contract specialist as a sedentary-type job where he has to use the
computer. Dr. Schmidt indicated that on examination appellant exhibited normal range of
motion of the upper extremities with normal motor strength and intact sensation. However,
appellant showed subjective pain complaints on palpation. Dr. Schmidt indicated that March 5,
1996 EMG and NCV testing showed evidence of bilateral radial tunnel syndrome and radial

5

The Office did not appear to make any finding regarding appellant’s claim that he sustained a recurrence of total
disability on or after November 14, 2005 due to his July 12, 1995 employment injury
6

The Office hearing representative asked appellant to submit documents regarding his hobby of riding
motorcycles.
7

The Office produced a new statement of accepted facts. The document indicated that appellant’s job duties
consisted of answering telephones, filing folders, writing, using a keyboard, and using a computer mouse. Appellant
submitted numerous documents regarding his motorcycle hobby and indicated that his three-wheeled motorcycle
was specially outfitted to accommodate his handicap.

3

nerve entrapment, but stated that his examination did not show any evidence of lateral
epicondylitis or bilateral radial tunnel syndrome. He stated:
“My impression at this time is that this patient’s clinical examination today is
objectively within normal limits. Frankly, the patient’s subjective complaints are
nonphysiological and are consistent with dramatic symptom magnification. The
patient complains of diffuse tenderness on palpation essentially in all areas of the
upper extremities, neck and posterior trapezial muscle regions in the face of a
totally normal clinical exam[ination] without loss of motion, neurologic
disturbance or any evidence of swelling.
“My impression at this time is that this patient is fully recovered from his work
injury of July 12, 1995. I cannot correlate any problems to the patient’s work
injury of July 12, 1995 or from his work activities since his return to work in
April of 1998.
“In addition, it is my opinion within a reasonable degree of medical certainty that
this patient being out of work since November 14, 2005 is not the result of either
the July 12, 1995 work injury or from his work activities since his return to work
in April of 1998.
“During today’s evaluation the patient indicated that he came out of work
primarily on November 14, 2005 because of an intentional tremor. The patient
does have a very minimal tremor at rest today with arms extended. He does not
have an intention tremor. In other words, when he moves his fingers purposefully
he does not show a tremor.”
In a January 12, 2007 decision, the Office denied appellant’s claims that he sustained a
recurrence of total disability on or after November 14, 2005 due to his July 12, 1995
employment injury and that he sustained an occupational disease of his right arm which caused
disability on or after November 14, 2005. The Office found that the weight of the medical
evidence rested with the well-reasoned opinion of the impartial medical specialist, Dr. Schmidt.
Appellant requested a hearing before an Office hearing representative. At the May 16,
2007 hearing, appellant’s attorney argued that Dr. Schmidt’s opinion was not sufficiently well
reasoned to constitute the weight of the medical evidence. He contended that Dr. Schmidt did
not have a complete picture of appellant’s work duties and that he did not adequately consider
certain evidence, such as recent EMG and NCV study findings. Appellant submitted a
January 31, 2007 report of Dr. Fried and additional results of diagnostic testing.

4

In a July 26, 2007 decision, the Office hearing representative affirmed the Office’s
January 12, 2007 decision. He indicated that Dr. Schmidt’s opinion was well reasoned and
adequately considered all the relevant factual and medical evidence.8
LEGAL PRECEDENT
An individual who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which compensation is claimed is causally related to the accepted
injury.9 This burden includes the necessity of furnishing medical evidence from a physician who,
on the basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and supports that conclusion with sound
medical rationale.10 Where no such rationale is present, medical evidence is of diminished
probative value.11
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
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence.12
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
“If there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination.”13 In situations where there exist opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of

8

The Office hearing representative noted that the record contained a claim form (CA-2) alleging an employmentrelated occupational disease of the left arm, but that the employing establishment had not completed its portion of
the form. She indicated that the Office should consider this claim once it was properly completed. The record does
not contain any final decision of the Office regarding this claim and it is not currently before the Board. See 20
C.F.R. § 501.2(c).
9

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986).

10

Mary S. Brock, 40 ECAB 461, 471-72 (1989); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

11

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

12

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

13

5 U.S.C. § 8123(a).

5

resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.14
ANALYSIS
The Office accepted that on July 12, 1995 appellant, then a 44-year-old contract
specialist, sustained right lateral epicondylitis and a right elbow contusion when a 600-pound
mail mobile stuck his right elbow. He stopped work on November 25, 2005 and did not return.
Appellant claimed both that he sustained a recurrence of total disability on or after November 14,
2005 due to his July 12, 1995 employment injury and that he sustained an occupational disease
of his right arm which caused disability on or after November 14, 2005.
The Office properly determined that there was a conflict in the medical opinion between
Dr. Fried, appellant’s attending Board-certified orthopedic surgeon, and Dr. Hanley, a Boardcertified orthopedic surgeon acting as an Office referral physician, regarding whether appellant
sustained an employment-related recurrence of total disability on or after November 14, 2005
due to his July 12, 1995 employment injury and regarding whether he sustained an occupational
disease of his right arm which caused disability on or after November 14, 2005.15 In order to
resolve the conflict, the Office properly referred appellant, pursuant to section 8123(a) of the
Act, to Dr. Schmidt, a Board-certified orthopedic surgeon, for an impartial medical examination
and an opinion on the matter.16
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Schmidt, the impartial medical specialist selected to resolve the
conflict in the medical opinion.17 The report of Dr. Schmidt establishes that appellant did not
sustain an employment-related recurrence of total disability on or after November 14, 2005 due
to his July 12, 1995 employment injury and that he did not sustain an occupational disease of his
right arm which caused disability on or after November 14, 2005.
On November 29, 2006 Dr. Schmidt provided an extensive discussion of appellant’s
factual and medical history, including his medical treatment since his July 12, 1995 injury and
upper extremity complaints since returning to work. He indicated that on examination appellant
exhibited normal range of motion of the upper extremities with normal motor strength and intact
sensation. Dr. Schmidt stated that appellant’s subjective complaints were “nonphysiological and
“consistent with dramatic symptom magnification” and noted, “The patient complains of diffuse
14

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

15

In a February 1, 2006 report, Dr. Fried concluded that October 2005 EMG and NCV studies showed that
appellant continued to have disabling residuals of the July 12, 1995 injury. He also concluded that appellant had
right carpal tunnel syndrome, right overuse syndrome with MRI scan evidence of rotator cuff involvement, and right
shoulder capsulitis due to his repetitive work activities. In contrast, Dr. Hanley indicated in a July 11, 2006 report
that appellant had significant nonorganic and emotional overlay and was not suffering from either a recurrence of
disability due to his July 12, 1995 injury or a new injury due to subsequent work exposure.
16

See supra note 13 and accompanying text.

17

See supra note 14 and accompanying text.

6

tenderness on palpation essentially in all areas of the upper extremities, neck and posterior
trapezial muscle regions in the face of a totally normal clinical examination without loss of
motion, neurologic disturbance or any evidence of swelling.” He noted that appellant related his
work stoppage to an intention tremor in his right hand, i.e., a tremor that gets worse when the
member is moved, but indicated that he did not observe an intention tremor on examination or
see one mentioned in the medical records. Dr. Schmidt concluded, “My impression at this time
is that this patient is fully recovered from his work injury of July 12, 1995. I cannot correlate
any problems to the patient’s work injury of July 12, 1995 or from his work activities since his
return to work in April of 1998.”
The Board has carefully reviewed the opinion of Dr. Schmidt and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Schmidt’s opinion is based on a proper factual and
medical history in that he had the benefit of an accurate and up-to-date statement of accepted
facts, provided a thorough factual and medical history and accurately summarized the relevant
medical evidence.18 He provided medical rationale for his opinion by explaining that appellant
did not exhibit any objective signs of having sustained an employment-related recurrence of
disability or a new right-sided occupational disease causing disability on or after
November 25, 2005.
Appellant’s attorney contended that Dr. Schmidt did not have a complete picture of
appellant’s work duties and that he did not adequately consider certain evidence, such as recent
EMG and NCV study findings. The Board finds that Dr. Schmidt adequately addressed the
relevant factual and medical evidence. He discussed appellant’s work duties in his report and the
statement of accepted facts he was provided contained an adequate description of these duties.
Dr. Schmidt adequately considered the relevant diagnostic testing. He noted that March 5, 1996
EMG and NCV testing showed evidence of bilateral radial tunnel syndrome and radial nerve
entrapment, but stated that his examination did not show any evidence of lateral epicondylitis or
bilateral radial tunnel syndrome.19
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of total disability on or after November 14, 2005 due to his July 12, 1995
employment injury and that he did not meet his burden of proof to establish that he sustained an
occupational disease of his right arm which caused disability on or after November 14, 2005.

18

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

19

After the termination of his compensation, appellant submitted additional medical evidence including a
January 31, 2007 report of Dr. Fried. However, as Dr. Fried was on one side of the conflict, his additional report is
essentially duplicative of his stated opinion and is insufficient to give rise to a new conflict. See Richard O’Brien,
53 ECAB 234 (2001).

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
July 26 and January 12, 2007 decisions are affirmed.
Issued: June 20, 2008
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eau Claire, WI, Employer
__________________________________________

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

Docket No. 12-1837
Issued: March 19, 2013

Case Submitted on the Record

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

JURISDICTION
On September 5, 2012 appellant filed a timely appeal of an April 4, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim for a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant sustained permanent impairment warranting a schedule
award.
FACTUAL HISTORY
OWCP accepted that appellant, then a 55-year-old distribution clerk, sustained temporary
aggravation of preexisting cervical radiculopathy at C5-6, preexisting left arm radiculopathy and
temporary aggravation of preexisting arthritis in the neck with cervical spondylosis. On June 5,
1

5 U.S.C. § 8101 et seq.

2008 he underwent a magnetic resonance imaging (MRI) scan of the cervical spine, which
demonstrated advanced multilevel degenerative joint and disc disease as well as spondylosis.
The MRI scan demonstrated severe central canal stenosis and early cord compression.
OWCP authorized surgery for a C3-4, C4-5 and C5-6 anterior cervical decompression
and instrument fusions on November 18, 2008. Appellant underwent an MRI scan on
November 19, 2008, which demonstrated multilevel spinal stenosis created by disc and
osteophytic changes between C3 and C6-7. On that day he underwent a computed tomography
of the cervical spine, which demonstrated a C3-6 anterior cervical fusion with moderate left
neuroformainal narrowing and C3-4, C4-5 and C5-6 with right neuroforaminal narrowing at
C5-6.
On February 18, 2010 Dr. Jane M. Stark, Board-certified in public health and general
preventive medicine, examined appellant and noted that he had improvement in his symptoms.
Appellant had some mild neck aching with no radicular symptoms in his left upper extremity.
Dr. Stark found some occasional soreness in the neck with no tingling into the left upper
extremity or weakness. She diagnosed status post anterior cervical fusion and cervical
spondylosis without myelopathy. Dr. Stark determined that appellant reached maximum medical
improvement on November 18, 2008 and accorded a five percent impairment of the cervical
spine under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment2 (A.M.A., Guides) based on the cervical spine regional grid.3
On December 13, 2010 Dr. Stark examined appellant, who noticed discomfort in his right
shoulder and arm for the past year. Since December 2, 2010 appellant had numbness and
tingling into the wrist and fingers of his right hand. He reported that the grip strength in his right
hand had decreased. Dr. Stark noted the cervical fusion and right carpal tunnel release surgery in
2000. She diagnosed right wrist pain.
Appellant underwent a cervical MRI scan on January 7, 2011 which demonstrated
cervical disc fusion C3-6 with lucent area in the posterior aspects of the graft at C5-6. He also
underwent an electromyogram (EMG) and nerve conduction studies on January 17, 2011 which
demonstrated electrophysiological evidence for a chronic active right C7 and C8 radiculopathies.
Appellant requested a schedule award on February 22, 2011. OWCP referred his claim to
an OWCP medical adviser on March 7, 2011. On March 16, 2011 Dr. Neil Ghodadra, a medical
adviser, stated that appellant had no residual pain and no symptoms of radiculopathy in
accordance with Dr. Stark’s evaluation. He stated, “I disagree with the rating given by Dr. Stark
as she used the cervical region grid although the claimant has had excellent results with no
ongoing pain symptoms.” Dr. Ghodadra found zero percent impairment.
By decision dated April 6, 2011, OWCP denied appellant’s claim for a schedule award on
the grounds that he had no ratable impairment of a scheduled member.

2

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

3

Id. at 564.

2

Appellant requested reconsideration on January 13, 2012. He asked that OWCP consider
recent medical evidence and submitted an x-ray of his left shoulder. Dr. Sanjai Shukla, a
medical adviser, reviewed the record on March 25, 2012. He found that, as appellant did not
have an accepted left shoulder condition, there was no basis for a schedule award for this
member. Dr. Shukla stated, “If the claimant is arguing that his left shoulder acrominoclavicle
joint degenerative changes are work-related[,] documentation from an examining physician must
be provided.”
By decision dated April 4, 2012, OWCP denied modification of its April 6, 2011
decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.6
FECA does not authorize the payment of schedule awards for the permanent impairment
of the whole person.7 Payment is authorized only for the permanent impairment of specified
members, organs or functions of the body. No schedule award is payable for a member, function
or organ of the body not specified in FECA or in the regulations.8 FECA and the implementing
federal regulations do not provide for schedule award for the permanent loss of use of the back
or spine.9 A claimant is not entitled to such an award.10
The schedule award regulations provide for an award for permanent impairment to a
member of the body covered by the schedule regardless of whether the cause of the impairment
originated in the scheduled or nonscheduled member. As the schedule award provisions of
4

5 U.S.C. §§ 8101-8193, 8107.

5

20 C.F.R. § 10.404.

6

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

W.D., Docket No. 10-274 (issued September 3, 2010); Ernest P. Govednick, 27 ECAB 77 (1975).

8

W.D., supra note 7; William Edwin Muir, 27 ECAB 579 (1976).

9

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

10

W.D., supra note 7. Timothy J. McGuire, 34 ECAB 189 (1982).

3

FECA include the extremities, a claimant may be entitled to a schedule award for permanent
impairment to a limb even though the cause of the impairment originated in the spine.11
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine,
the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with
sixth edition methodology.12 OWCP has adopted this approach for rating impairment of the
upper or lower extremities caused by a spinal injury, as provided in section 3.700 of its
procedures.13 Specifically, it will address lower extremity impairments originating in the spine
through Table 16-1114 and upper extremity impairment originating in the spine through Table
15-14.15
In addressing upper extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16
ANALYSIS
OWCP accepted appellant’s claim for temporary aggravation of preexisting cervical
radiculopathy at C5-6, preexisting left arm radiculopathy and temporary aggravation of
preexisting arthritis in the neck with cervical spondylosis. Appellant underwent a C3-4, C4-5
and C5-6 anterior cervical decompression and instrumented fusions on November 18, 2008
which was authorized by OWCP.
Dr. Stark completed an impairment evaluation on February 18, 2010. She found that
appellant had improvement in his symptoms with some mild neck aching but no radicular
symptoms in his left upper extremity. Dr. Stark diagnosed status post anterior cervical fusion
and cervical spondylosis without myelopathy and determined that he reached maximum medical
improvement on February 18, 2003. She rated a five percent impairment of the cervical spine
based on the cervical spine regional grid of the A.M.A., Guides.17 As noted, a schedule award is
not provided for loss of use of the spine.

11

W.D., supra note 7. Rozella L. Skinner, 37 ECAB 398 (1986).

12

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, supra note 6,
Chapter 3.700 Exhibit 4 (January 2010).
13

Federal (FECA) Procedure Manual, supra note 6, Chapter 3.700 (Exhibits 1, 4) (January 2010).

14

A.M.A., Guides, 533, Table 16-11.

15

Id. at 425, Table 15-14.

16

Id. at 411. J.B., Docket No. 09-2191 (issued May 14, 2010).

17

Id. at 564.

4

An OWCP medical adviser reviewed this report on March 16, 2011 noting that Dr. Stark
found no residual pain or symptoms of radiculopathy into the upper extremities. He noted that
she inappropriately used the cervical regional grid, rating impairment of cervical spine.
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his or her opinion is of diminished probative
value to establish the degree of permanent impairment. OWCP may rely on the opinion of its
medical adviser to apply the A.M.A., Guides to the findings of the attending physician.18
Dr. Ghodadra found that the medical evidence failed to establish permanent impairment
of either arm. Dr. Stark’s impairment rating was not appropriately correlated to the upper
extremities under the A.M.A., Guides. As noted no claimant is entitled to a schedule award due
to permanent impairment of the spine. Dr. Stark specifically stated that appellant had no
ongoing impairment to his upper extremities and provided an impairment rating based solely on
his cervical spine condition. Appellant has not submitted sufficient medical evidence to establish
a permanent impairment to either arm.
The record also contains a diagnosis of wrist pain by Dr. Stark as well as additional test
results. These medical records do not address the issue of whether appellant has permanent
impairment of an upper extremity in accordance with the A.M.A., Guides. There is no
supporting medical evidence to establish that he sustained permanent impairment. Dr. Shukla
also reviewed the medical record to note that impairment to the upper extremities was not
established.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not establish permanent impairment of either arm to
warrant a schedule award.

18

Linda Beale, 57 ECAB 429 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the April 4, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 21-0933
Issued: February 23, 2022

Case Submitted on the Record

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

JURISDICTION
On June 2, 2021 appellant filed a timely appeal from a January 28, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1

Appellant’s AB-1 form indicates that she is appealing from a May 12, 2021 decision of OWCP; however, there is
no such decision found in the case record. The most recent final adverse decision of OWCP was a January 28, 2021
merit decision.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 28, 2021 decision, OWCP received additional evidence. 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 appellant has met his burden of proof to establish an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
On November 12, 2020 appellant, then a 56-year-old letter carrier, filed a notice of
recurrence (Form CA-2a) alleging that on February 1, 2020 he experienced a worsening of left
ankle pain and symptoms related to a July 14, 2017 employment injury. 4 He attributed his
condition to being on his feet and an increase of movement to perform his job duties after his work
hours increased. Appellant did not stop work. On December 4, 2020 OWCP converted the
recurrence claim to an occupational disease claim as he claimed left ankle conditions due to new
factors of employment over the course of more than one workday or shift, a nd assigned it OWCP
File No. xxxxxx789.
In a medical report dated June 18, 2020, Dr. Timothy Tetzlaff, a family medicine specialist,
related a history of a July 2017 left ankle sprain, which initially improved, but then slowly
worsened over the past three months. He related that appellant had difficulty ambulating,
extremely uncomfortable dorsiflexion, and pain at the top of the left foot, and that his job duties
involved walking for miles each day. On physical examination, Dr. Tetzlaff documented that
appellant reported pain in the dorsum of the left foot and was wearing an ankle brace. He assessed
a recent worsening of a work-related left foot injury.
A left ankle magnetic resonance imaging (MRI) scan report dated August 17, 2020
revealed mild-to-moderate first metatarsophalangeal (MTP) joint osteoarthritis with partial
thickness/low grade turf toe and subtle edema in the first metatarsal head, mild second MTP joint
osteoarthritis, likely chronic deficiency of the anterior talofibular ligament, evidence of a previous
injury to the calcaneofibular ligament, and mild inframalleolar peroneus brevis tendinosis.
In a report dated October 30, 2020, Dr. Scott A. Nemec, a Board-certified orthopedic
surgeon and foot and ankle specialist, related appellant’s history of spraining his left ankle when
he stepped in a hole on July 14, 2017. He noted that since that injury, he experienced pain within
the lateral aspect of the ankle, which had progressively worsened over the past year and was most
prevalent while walking down stairs or on uneven surfaces. On physical examination, Dr. Nemec
documented pain in the left peroneal tendon. He reviewed appellant’s MRI scan and obtained xrays. Dr. Nemec diagnosed left ankle sprain/instability and subtle cavus with lateral foot overload.
He recommended physical therapy, followed by surgical intervention.
In a development letter dated December 4, 2020, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence needed,

4

OWCP previously accepted a July 14, 2017 traumatic injury claim under OWCP File No. xxxxxx338 for a sprain
of ligament of the left ankle. As appellant’s claims have not been administratively combined, the evidence pertaining
to OWCP File No. xxxxxx338 is not part of the case record presently before the Board.

2

provided a questionnaire for his completion, and afforded him 30 days to submit the necessary
evidence. No response was received.
By decision dated January 28, 2021, OWCP denied appellant’s occupational disease claim,
finding that he had not established the factual component of his claim, as he had not submitted
additional evidence to substantiate his employment-related activities in response to its
December 4, 2020 development letter. It concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
casually related to the identified employment factors.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty, as alleged.
On his claim form, appellant indicated that he experienced worsening left ankle pain and
function following an increase in his work hours, resulting in an increase in prolonged standing
and movement performing his duties. He did not, however, submit a detailed account of the
alleged employment factors or any additional corroborating factual evidence describing how he
5

Supra note 2.

6

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
7

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

T.W., Docket No. 20-0767 (issued January 13, 2021); L.D., Docket No. 19-1301 (issued January 29, 2020); S.C.,
Docket No. 18-1242 (issued March 13, 2019).

3

sustained an injury due to an increase of movement and being on his. Similarly, Dr. Tetzlaff’s
June 18, 2020 report and Dr. Nemec’s October 30, 2020 report do not identify any employment
factors alleged to have caused the worsening of appellant’s diagnosed conditions. The Board has
found that such a vague recitation of facts does not support a claimant’s burden to establish an
injury in the performance of duty, as alleged. 10
OWCP, in its December 4, 2020 development letter, informed appellant of the type of
factual and medical evidence needed to establish his claim. Appellant, however, did not respond
to OWCP’s December 4, 2020 development letter and did not provide a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occ urrence
of a medical condition.11
As there is no evidence of record sufficient to establish an injury in the performance of
duty, as alleged, the Board finds that appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607. 12
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty, as alleged.

10

T.C., Docket No. 20-1513 (issued June 3, 2021); M.C., Docket No. 18-1278 (issued March 7, 2019); M.B., Docket
No. 11-1785 (issued February 15, 2012).
11

Supra note 9.

12

Upon return of the case record, OWCP should consider administratively combining OWCP File No. xxxxxx338
with the present claim.

4

ORDER
IT IS HEREBY ORDERED THAT the January 28, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-902
Issued: September 11, 2012

Case Submitted on the Record

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

JURISDICTION
On March 15, 2012 appellant, through her representative, filed a timely appeal from the
February 13, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied waiver of recovery of an overpayment. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly denied waiver of the recovery of a
$1,213.04 overpayment; and (2) whether it properly set the rate of recovery from continuing
compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In the prior appeal,2 the Board found that appellant received a $1,213.04 overpayment of
compensation in September 2009 when she received compensation for temporary total disability
after returning to full-time work. As she received the payment in question through direct
deposit, the Board set aside OWCP’s finding of fault and remanded the case for consideration of
waiver based on appellant’s current financial circumstances. The facts of this case as set forth in
the Board’s prior decision are hereby incorporated by reference.3
Upon return of the case record, OWCP made a preliminary determination that appellant
was not at fault in the creation of the overpayment, making her eligible for consideration of
waiver. It asked her to complete an overpayment questionnaire and attach supporting
documents, including copies of income tax returns, bank account statements, bills, canceled
checks, pay slips and any other records that would support the income and expenses listed on the
questionnaire. OWCP notified appellant that failure to submit the requested information within
30 days would result in the denial of waiver, and no further request for waiver would be
considered until the requested information was furnished.
Appellant requested waiver and submitted financial documentation. In her overpayment
recovery questionnaire, she indicated $16.00 in monthly income. Appellant listed over
$5,000.00 in usual monthly expenses and monthly installment debt.
At a telephonic hearing before an OWCP hearing representative on December 14, 2011,
appellant testified as to her debts and general finances. The hearing representative informed her
representative what additional financial documentation was necessary. After explaining that she
would hold the record open for 30 days, and that it was critical for appellant to update her
financial information, including information on foreclosure proceedings, within that 30-day
period, as failure to do so would result in a denial of waiver, the hearing representative stated she
would issue a decision in no later than 75 days.
In a February 13, 2012 decision, OWCP’s hearing representative denied appellant’s
request for waiver. She found that appellant did not provide the financial documentation
necessary to reliably support that she would be unable to repay the debt or that recovery would
create a hardship. Further, the hearing representative found significant inconsistencies between
the limited evidence submitted and appellant’s testimony. For example, while appellant stated
she had only sporadic income, she received $29,981.36 in net compensation from August 26 to
December 31, 2011. While she testified she had no employment, documentation showed a
payroll deposit in July 2011.
OWCP’s hearing representative found that the ordinary and necessary expenses that
appellant documented came to $2,322.67 a month, compared to net monthly compensation of
2

Docket No. 11-114 (issued July 18, 2011).

3

On March 18, 2004 appellant, a 47-year-old processing clerk, sustained a traumatic injury in the performance of
duty when she fell in a parking lot. OWCP accepted her claim for right leg contusion, right ankle fracture, left ankle
fracture and left ankle arthritis.

2

$3,286.90. She found that a repayment schedule of $150.00 a month from continuing
compensation was reasonable and would allow for collection of the debt while still providing
appellant the ability to meet ordinary and necessary living expenses. The hearing representative
noted that $150.00 was less than five percent of appellant’s monthly compensation benefits.
On appeal, appellant argues that recovery of the overpayment would create a severe
financial hardship. She states that she has no problem sending OWCP’s hearing representative
any and all information requested, but the hearing representative did not send her a request for
additional information before making her decision. Appellant states that she has major
depression recurrent episode, and the hearing representative left her to “remember” the oral
requests for documentation. (Emphasis added). She states that she assumed a letter would be
forthcoming. Appellant also states that the hearing representative based her decision on
speculation instead of facts. She then took issue with the hearing representative’s treatment of
her financial circumstances, noting that some of the information, such as foreclosure
proceedings, was a matter of public record.
LEGAL PRECEDENT -- ISSUE 1
When an overpayment of compensation has been made 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.4 OWCP may consider waiving an overpayment
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.5 If OWCP finds that the recipient of an overpayment was not at fault, repayment
will still be required unless (1) adjustment or recovery of the overpayment would defeat the
purpose of FECA or (2) adjustment or recovery of the overpayment would be against equity and
good conscience.6
Recovery of an overpayment will defeat the purpose of FECA if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from
whom OWCP seeks recovery needs substantially all of her current income (including
compensation benefits) to meet current ordinary and necessary living expenses; and (b) the
beneficiary’s assets do not exceed the resource base of $4,800.00 for an individual or $8,000.00
for an individual with a spouse or one dependent.7
An individual is deemed to need substantially all of her current income to meet current
ordinary and necessary living expenses if monthly income does not exceed monthly expenses by
more than $50.00. In other words, the amount of monthly funds available for debt repayment is

4

5 U.S.C. § 8129(a).

5

20 C.F.R. § 10.433(a).

6

Id. at § 10.434.

7

Id. at § 10.436; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6.a(1)(b) (June 2009).

3

the difference between current income and adjusted living expenses (i.e., ordinary and necessary
living expenses plus $50.00).8
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes her position for the worse.9 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.10
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is needed to
determine whether recovery of the overpayment would defeat the purpose of FECA or be against
good conscience. This information will also be used to determine the repayment schedule, if
necessary. Failure to submit the requested information within 30 days of the request shall result
in denial of waiver and no further request for waiver shall be considered until the requested
information is furnished.11
ANALYSIS -- ISSUE 1
When OWCP made its preliminary finding that appellant was not at fault in the creation
of the overpayment, it well advised both appellant and her representative of the financial
documentation necessary to establish income, expenses and assets. OWCP also advised of the
consequences for failing to provide the information requested. After receiving some financial
documentation, OWCP’s hearing representative informed both appellant and her representative
during the telephonic hearing what further documentation was required. She gave no indication
that she would be sending appellant a letter requesting this financial information and that
appellant could wait to submit the documentation at that time. Instead, the hearing representative
attempted to impress upon appellant and her representative how critical it was for the
documentation they had just discussed to be submitted within 30 days. Failure to do so, she
warned, would result in denial of waiver.
When it came time to issue a final decision, OWCP’s hearing representative was
compelled to find that appellant did not provide the financial documentation necessary to reliably
support that she would be unable to repay the debt or that recovery would create a hardship.
Documented monthly income exceeded documented monthly expenses by $964.23, establishing
that appellant did not need substantially all of her current income (including compensation
benefits) to meet current ordinary and necessary living expenses. Recovery would therefore not
defeat the purpose of FECA, nor would recovery be against equity and good conscience, as
appellant did not establish detrimental reliance.

8

Federal (FECA) Procedure Manual, id.

9

20 C.F.R. § 10.437(b).

10

Federal (FECA) Procedure Manual, supra note 7 at Chapter 6.200.6.b(3).

11

20 C.F.R. § 10.438.

4

Accordingly, the Board finds that OWCP properly denied waiver of recovery of the
overpayment. The Board will affirm OWCP’s February 13, 2012 decision on the issue of
waiver.12
Appellant argues that OWCP’s hearing representative based her decision on speculation
and not fact. More accurately, she based her decision on the income and ordinary and necessary
expenses that appellant properly documented, or in other words, on the only facts that appellant
established, which, indeed, might not accurately reflect her true financial status. It is appellant’s
responsibility, however, to provide the information necessary to establish her true financial
status, and if she does not, OWCP can do nothing more than base its decision on the evidence
she has made available.
LEGAL PRECEDENT -- ISSUE 2
Whenever an overpayment has been made to an individual who is entitled to further
payments, proper adjustment shall be made by decreasing subsequent payments of compensation
having due regard to 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
resulting hardship upon such individual.13
ANALYSIS -- ISSUE 2
With waiver denied, FECA requires OWCP to recover the debt. OWCP’s hearing
representative knew the rate of appellant’s compensation and the probable extent of future
payments, and she had before her appellant’s overpayment recovery questionnaire, some
financial documentation and appellant’s testimony about her finances. She also considered the
amount of the overpayment, how long it would take to recover, what percentage of appellant’s
monthly compensation the recovery amount represented, and whether the rate of recovery would
allow appellant the ability to meet ordinary and necessary living expenses, insofar as they were
properly documented in the record. The Board therefore finds that OWCP gave due regard to
relevant factors in setting the rate of recovery from continuing compensation payments at
$150.00.14 The Board will affirm OWCP’s February 13, 2012 decision on the issue of rate of
recovery.
CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The Board also finds that it properly set the rate of recovery from continuing compensation.

12

The Board settled the issues of fact and amount of overpayment in the prior appeal.

13

20 C.F.R. § 10.321(a).

14

See Gail M. Roe, 47 ECAB 268 (1995) (when an individual failed to provide the requested information on
income, expenses and assets, the Board found that OWCP did not abuse its discretion in following minimum
collection guidelines, which state in general that government claims should be collected in full and that, if an
installment plan is accepted, the installments should be large enough to collect the debt promptly).

5

ORDER
IT IS HEREBY ORDERED THAT the February 13, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6