United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
G.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
_________________________________________

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Appearances:
Ron Watson, for the appellant
No appearance, for the Director

Docket No. 14-0359
Issued: June 22, 2015

Oral Argument July 9, 2014

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

JURISDICTION
On December 2, 2013 appellant, through his representative, filed a timely appeal from a
June 28, 2013 schedule award decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a seven percent permanent impairment of
the right upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On December 27, 2002 appellant, then a 41-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 26, 2002 he sustained a right shoulder injury

1

5 U.S.C. § 8101 et seq.

when he slipped on ice. By decision dated February 13, 2003, OWCP accepted the claim for
right shoulder sprain.
On May 5, 2010 appellant filed a recurrence claim (Form CA-2a) alleging a
return/increase of disability. By decision dated October 7, 2010, OWCP accepted his recurrence
claim; the claim was expanded to include complete right rotator cuff rupture.
OWCP authorized surgery for right shoulder arthroscopy and biceps tendon repair on
November 15, 2010. On December 16, 2010 appellant underwent right shoulder arthroscopy
with extensive debridement, lysis of adhesions, biceps tenodesis, subacromial decompression
with acromioplasty, rotator cuff repair and distal clavicle excision performed by Dr. James D.
O’Holleran, a Board-certified orthopedic surgeon.
OWCP approved a subsequent February 3, 2011 surgery resulting from a postoperative
infection. On that date, appellant underwent a right shoulder arthroscopy with extensive
debridement, complete synovectomy, loose body removal and subacromial decompression. On
February 8, 2011 he underwent an additional surgery for drainage of a pus collection in the
subcutaneous tissues anteriorly. Appellant returned to full-time work on July 11, 2011.
On January 11, 2012 appellant filed a claim for a schedule award (Form CA-7).
In support of his schedule award claim, appellant submitted a December 28, 2011
medical report from his treating physician, Dr. Byron V. Hartunian, a Board-certified orthopedic
surgeon. In his report, Dr. Hartunian provided details regarding appellant’s medical history and
findings on physical examination. He diagnosed acromioclavicular (AC) joint disease of the
right shoulder, rotator cuff injury with full-thickness rotator cuff tear status post repair of the
right shoulder and biceps tendon tear status post tenodesis of the right shoulder. Using the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),2 Dr. Hartunian opined that appellant had a total 22 percent
impairment of the upper right extremity. According to the Shoulder Regional Grid Table 15-5
for an AC joint injury or disease, he placed appellant in a class 1 for status post distal clavicle
resection.3 Physical examination was processed as a grade modifier 2 because there were
moderate palpatory findings consistently documented and supported by the observed
abnormalities. Functional history was processed as a grade modifier 1, mild problem, because
appellant had some difficulty performing stressful activities. Clinical studies were processed as a
grade modifier 2 because diagnostic testing revealed moderate AC joint arthrosis. Applying the
net adjustment formula, Dr. Hartunian calculated a net adjustment of 2 yielding a class 1, grade
E impairment of 12 percent for the upper right extremity.
Dr. Hartunian noted that the rotator cuff tear was a separate ratable category per
Table 15-5.4 He opined that the symptoms appellant experienced since the injury and surgery at
the rotator cuff were separate from those caused by the AC joint dysfunction and affected
2

A.M.A., Guides (2009).

3

Id. at 403, Table 15-5.

4

Id.

2

activities of daily living in a different way. Specifically, Dr. Hartunian noted that strength in
abduction was affected as opposed to the pain localized at the AC joint during overhead
activities. Upon placing this condition in class 1 and providing findings for functional history,
clinical studies and physical examination, he calculated a seven percent impairment of the upper
right extremity for the rotator cuff tear. Dr. Hartunian further found that the biceps tendinitis and
weakness in biceps strength was a separate ratable category per Table 15-5 because the pain and
weakness affected different activities of daily living, specifically lifting objects directly in front
of him as opposed to overhead activities.5 He placed appellant’s condition in a class 1 category
and calculated a five percent impairment of the upper right extremity for biceps tendon.
Dr. Hartunian concluded that using the Combined Values Chart of the A.M.A., Guides,
the impairment ratings of 12 percent, 7 percent and 5 percent must be combined for a total 22
percent impairment of the right upper extremity. The date of maximum medical improvement
(MMI) was noted as June 2011.
On September 6, 2012 OWCP routed Dr. Hartunian’s report, a statement of accepted
facts and the case file to Dr. Morley Slutsky, an OWCP medical adviser Board-certified in
occupational medicine, for an opinion on permanent impairment of the upper right extremity.
In a September 6, 2012 report, Dr. Slutsky noted that there were a number of diagnoses
which could be rated in appellant’s claim. He argued that Dr. Hartunian improperly rated
multiple conditions when only one diagnosis could be used, that which produced the greatest
potential impairment in accordance with section 15.2(e) and 15.3(f) of the A.M.A., Guides.6
Dr. Slutsky also noted that appellant’s bicep pathology was not ratable as clinical examination
did not reveal tendon dislocation or subluxation. He found that the diagnosis of AC joint
arthrosis status post distal clavicle resection had the greatest potential for impairment and agreed
with Dr. Hartunian’s 12 percent impairment rating for this injury. Dr. Slutsky concluded,
however, that appellant was only entitled to a 12 percent impairment of the upper right
extremity.
By letter dated December 26, 2012, OWCP informed appellant that Dr. Slutsky, the
medical adviser, provided a 12 percent impairment rating of the upper extremity as opposed to
the 22 percent impairment rating provided by Dr. Hartunian. It provided appellant with a copy
of Dr. Slutsky’s report and advised him to obtain a supplemental report from his treating
physician which would support further consideration of the additional 10 percent impairment
difference.
In a December 31, 2012 supplemental report, Dr. Hartunian reviewed Dr. Slutsky’s report
and disagreed with his conclusion that only one diagnosis could be used to calculate appellant’s
impairment of the upper right extremity. While he agreed with Dr. Slutsky that the AC joint
arthrosis status post clavicle excision was the highest ratable condition, he argued that ratings for
the rotator cuff and biceps tendon tear should be combined due to the complex nature of the
injuries. Dr. Hartunian noted that Dr. Slutsky’s reference to section 15.3(f) of the A.M.A.,
5

Id. at 402.

6

Id. at 390 and 419.

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Guides failed to note that in rare cases, the examiner may combine multiple impairment ratings
within a single region if the most impairing diagnosis does not adequately reflect the losses.
When uncertain about which method to choose or whether diagnoses are duplicative, the
evaluator should calculate the impairment using different alternatives and choose the method or
combination of methods that gives the most clinically accurate impairment rating.7 Thus,
Dr. Hartunian argued that the residual symptoms of the rotator cuff injury caused significant
reduction in strength in abduction with overhead lifting as opposed to the localized pain at the
AC joint caused by overhead lifting, warranting an additional seven percent upper extremity
impairment for the rotator cuff. He further argued that the biceps tendinitis condition affected
appellant’s activities of daily living differently from the other two injuries where the condition
affected appellant’s strength and caused pain in the arm when lifting objects in front of him
below shoulder level. This accounted for an additional five percent impairment of the upper
extremity. Dr. Hartunian also stated that Dr. Slutsky incorrectly found that the bicep pathology
was not ratable because there was no dislocation or subluxation present. He noted that
appellant’s operative report indicated that his tendon was dislocated from its original position.
Dr. Hartunian concluded that appellant was entitled to a 22 percent impairment of the upper right
extremity.
On March 20, 2013 OWCP referred appellant, a statement of accepted facts, the case file,
a medical conflict statement, and a series of questions to Dr. Kenneth Glazier, a Board-certified
orthopedic surgeon, for an impartial referee medical examination to resolve the conflict on
permanent impairment between Dr. Hartunian (reports dated December 28, 2011 and
December 31, 2012) and Dr. Slutsky (report dated September 7, 2012).
In an April 16, 2013 medical report, Dr. Glazier provided a medical history and findings
on physical examination. He stated that appellant had constant pressure discomfort in the right
shoulder and symptoms increased after a full day of work as a letter carrier. Dr. Glazier noted a
stabbing pain in the biceps area with very heavy lifting, pain reaching across his body to pick up
stacks of mail and weakness and discomfort when using the right arm at and above shoulder
height for any repetitive-type activities. Appellant further complained of difficulty and avoided
using his right arm to reach overhead, out to the side and across his body.
Dr. Glazier agreed with Dr. Slutsky’s assessment that only the highest rated diagnosis
should be used based on the A.M.A., Guides. He argued, however, that the more appropriate
diagnosis was the rotator cuff tear given the lack of symptoms and findings at the AC joint.
Dr. Glazier referenced page 389 of the A.M.A., Guides which noted that the reliability of the
diagnosis is essential and mostly consistent with the clinical history and findings at the time of
the impairment assessment. He stated that there was no evidence of ongoing problems either by
history or examination at the AC joint and based his rating on the rotator cuff tear given
appellant’s symptoms and examination. Using Table 15-5, Dr. Glazier calculated seven percent
right upper extremity impairment based on appellant’s rotator cuff injury.8

7

Id. at 419.

8

Id. at 403.

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On May 7, 2013 OWCP routed Dr. Glazier’s report to Dr. Robert Y. Pick, an OWCP
medical adviser and Board-certified orthopedic surgeon, for an opinion on the referee
physician’s impairment rating.
In a May 26, 2013 report, Dr. Pick agreed with Dr. Glazier’s seven percent upper
extremity impairment rating. He stated that the impairment rating was based on the rotator cuff
because it was the salient and major issue in the case as opposed to the AC joint.
By decision dated June 28, 2013, OWCP granted appellant a schedule award claim for
seven percent permanent impairment of the right upper extremity, finding that the weight of the
medical evidence rested with Dr. Glazier’s referee report. The date of maximum medical
improvement was noted as July 11, 2011. The award covered a period of 21.84 weeks from
July 11 to December 10, 2011.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.9 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.10
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).11
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. After the Class of Diagnosis (CDX) is determined for the diagnosed condition
(including identification of a default grade value), the net adjustment formula is applied using the
grade modifier for Functional History (GMFH), grade modifier for Physical Examination
(GMPE) and grade modifier for Clinical Studies (GMCS).12 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13 Under Chapter 2.3, evaluators are

9

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

10

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth
edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
11

A.M.A., Guides, supra note 2 at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
12

Id. at 385-419.

13

Id. at 411.

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directed to provide reasons for their impairment rating choices, including choices of diagnoses
from regional grids and calculations of modifier scores.14
The A.M.A., Guides emphasize, however, that in most cases only one diagnosis in a
region will be appropriate:
If a patient has two significant diagnoses, for instance, rotator cuff tear and biceps
tend[i]nitis, the examiner should use the diagnosis with the highest causally
related impairment rating for the impairment calculation. Thus, when rating
rotator cuff injury/impairment or glenohumeral pathology/surgery, incidental
resection arthroplasty of the AC joint is not rated.15
However the A.M.A., Guides also provide the exception to this rule:
If there are multiple diagnoses at maximum medical improvement, the examiner
should determine if each should be considered or if the impairments are
duplicative. If there are multiple diagnoses within a specific region, then the most
impairing diagnosis is rated because it is probable this will incorporate the
functional losses of the less impairing diagnoses. When uncertain about which
method to choose or whether diagnoses are duplicative, the evaluator should
calculate the impairment using different alternatives.
The evaluating physician must explain in writing the rationale for combining
impairments.16
Thus, the A.M.A., Guides do not strictly prohibit calculating regional impairment using
multiple diagnoses. Such a case is considered rare and the evaluating physician has the burden
to justify combining regional impairments by explaining how the most impairing diagnosis does
not incorporate the functional losses of the less impairing diagnoses. It must be understood,
however, that in most cases only one diagnosis in a region will be appropriate.17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.18

14

Id. at 23-28.

15

Id. at 387.

16

Id. at 419.

17

D.A., Docket No. 12-841 (issued August 3, 2012).

18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6 (February 2013).

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ANALYSIS
OWCP accepted appellant’s claim for sprain of right shoulder and upper arm,
postoperative infection and complete rotator cuff rupture. It approved surgery for right shoulder
arthroscopy with extensive debridement, rotator cuff repair, biceps tendon repair and distal
clavicle excision. The issue is whether appellant has more than a seven percent permanent
impairment of the right upper extremity, for which he received a schedule award. The Board
finds this case is not in posture for decision.
In a December 28, 2011 medical report, Dr. Hartunian, appellant’s treating physician,
calculated a 22 percent impairment of the upper right extremity by combining rating values of 12
percent impairment of the AC joint status post distal clavicle resection, 7 percent impairment of
the rotator cuff tear and 5 percent impairment of the biceps tendon. He opined that the
impairment ratings should be combined because the symptoms for each injury were different and
affected activities of daily living differently.
OWCP properly routed Dr. Hartunian’s report, a statement of accepted facts, and the case
file to Dr. Slutsky, an OWCP medical adviser, for review and a determination on whether
appellant sustained a permanent partial impairment to the upper right extremity. In his
September 6, 2012 report, Dr. Slutsky disagreed with Dr. Hartunian’s impairment rating, finding
that appellant only sustained 12 percent permanent impairment of the upper right extremity for
the AC joint status post distal clavicle resection. He argued that the A.M.A., Guides provide that
only the diagnosis with the greatest potential impairment could be used when multiple conditions
existed. Dr. Slutsky stated that the diagnosis of AC joint status post distal clavicle resection
produced the greatest potential impairment at 12 percent. He further stated that appellant’s bicep
pathology was not ratable as clinical examination did not reveal tendon dislocation or
subluxation.
By letter dated December 26, 2012, OWCP provided appellant with Dr. Slutsky’s report
to afford him an opportunity to have Dr. Hartunian comment on the medical adviser’s lesser
impairment rating.
In a December 31, 2012 supplemental report, Dr. Hartunian disagreed with Dr. Slutsky’s
findings and provided support for his opinion. He referred to section 15.3(f) of the A.M.A.,
Guides which noted that in rare cases, the examiner could combine multiple impairment ratings
within a single region if the most impairing diagnosis did not adequately reflect the losses.19
While he agreed with Dr. Slutsky that the AC joint arthrosis status post clavicle excision was the
highest ratable condition, Dr. Hartunian argued that ratings for the rotator cuff and bicep tendon
tear should be combined due to the complex nature of the injuries. He stated that the residual
symptoms of the rotator cuff injury caused significant reduction in strength in abduction with
overhead lifting as opposed to the localized pain at the AC joint with overhead lifting. This
warranted an additional seven percent impairment for the rotator cuff. Dr. Hartunian further
argued that the biceps tendinitis condition affected appellant’s activities of daily living
differently from the other two injuries. He stated that this condition affected appellant’s strength
and caused pain in the arm when lifting objects in front of him below shoulder level, resulting in
19

Supra note 16.

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an additional five percent impairment of the upper extremity. Dr. Hartunian also argued that
Dr. Slutsky incorrectly stated that the bicep pathology was not ratable because there was no
dislocation or subluxation present. Dr. Hartunian noted that appellant’s operative report
indicated that his tendon was dislocated from its original position. He concluded that appellant
was entitled to a 22 percent impairment of the upper right extremity.
OWCP determined a conflict existed between Dr. Hartunian, appellant’s treating
physician, and Dr. Slutsky serving as the medical adviser, and referred the case to Dr. Glazier for
an impartial medical examination to resolve the conflict regarding the extent of permanent
impairment.
In his April 16, 2013 report, Dr. Glazier agreed with Dr. Slutsky’s assessment that only
the highest rated diagnosis should be used but argued that the more appropriate diagnosis was the
rotator cuff tear given the lack of symptoms and findings at the AC joint. He stated that there
was no evidence of ongoing problems either by history or examination at the AC joint and based
his rating on the rotator cuff tear given appellant’s symptoms and examination. Using Table 155, Dr. Glazier calculated seven percent right upper extremity impairment of the rotator cuff.20
On May 26, 2013 Dr. Pick, an OWCP medical adviser, reviewed Dr. Glazier’s findings and
agreed with his assessment of seven percent permanent impairment of the right upper extremity
for the rotator cuff.
The Board finds that Dr. Glazier’s opinion is of reduced probative value. Dr. Glazier
opined that the rotator cuff tear was the more appropriate diagnosis to use based on appellant’s
symptoms and examination but failed to identify the particular finding that justified that
conclusion. His general findings are not specific enough to clearly visualize permanent partial
impairment, or lack thereof.21 Dr. Glazier further noted that there was no evidence of ongoing
problems either by history or examination at the AC joint yet failed to address Dr. Hartunian’s
December 28, 2011 report which noted findings on physical examination as well as a history of
issues related to this condition. Furthermore, he appears to contradict himself as he states that
there are no symptoms related to the AC joint while also noting that appellant felt stabbing pain
in the biceps area with very heavy lifting, pain reaching across his body to pick up a stack of
mail, complaints with overhead activities and weakness and discomfort when using his right arm
at and above shoulder height for repetitive-type activities. Dr. Glazier also failed to address
Dr. Hartunian’s December 31, 2012 supplemental report which provided detailed reasoning
regarding why the ratings for the AC joint, rotator cuff and bicep tendon injuries should be
combined. The conflict in medical evidence between the opinions of Dr. Slutsky and
Dr. Hartunian is well defined in their reports. Dr. Hartunian contends that appellant’s unusual
medical history and array of symptoms requires that a schedule award include multiple
diagnoses. Dr. Slutsky finds that appellant’s symptoms and impairment are accurately reflected
in a single diagnosis. This is a medical question. Dr. Glazier’s impartial medical examination

20

Supra note 8.

21

Id.

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report does not explain or resolve this conflict. The Board has consistently held that a medical
opinion not fortified by rationale is of limited probative value.22
Given the inadequacy of Dr. Glazier’s April 16, 2013 report, OWCP should either request
a clarification or assign the file to a different referee examiner. Following this and any other
further development as deemed necessary, OWCP shall issue an appropriate merit decision on
appellant’s schedule award claim.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.23
Issued: June 22, 2015
Washington, DC

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

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

22

A.D., 58 ECAB 149 (2006).

23

Michael E. Groom, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective December 27, 2014.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Jacksonville, MS, Employer
__________________________________________

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

Docket No. 17-1518
Issued: December 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 3, 2017 appellant filed a timely appeal from an April 6, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed
since the last merit decision dated February 8, 2016, 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
ISSUE
The issue is whether OWCP properly found that appellant’s request for reconsideration
was untimely filed and failed to demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. As the Board’s jurisdiction is limited to evidence that was before
OWCP at the time of the final decision, the Board may not consider this evidence for the first time on appeal.
20 C.F.R. § 501.2(c)(1). J.W., Docket No. 17-1366 (issued October 26, 2017).

FACTUAL HISTORY
On July 22, 2015 appellant, then a 37-year-old cook, filed an occupational disease claim
(Form CA-2) alleging that on October 13, 2014 she first became aware of her bilateral knee
condition. However, it was not until July 22, 2015 that she realized that the condition had been
caused or aggravated by her federal employment duties which required a lot of lifting and
bending. Appellant did not stop working.
In a letter dated August 4, 2015, OWCP informed appellant that the evidence of record
was insufficient to establish her claim. She was advised regarding the medical and factual
evidence required and afforded 30 days to provide the requested information.
In response to OWCP’s request appellant submitted magnetic resonance imaging (MRI)
scans of her knees dated July 28, 2015, a position description, as well as her own statement
responding to OWCP’s questions, and a statement by W.F., a cook foreman, regarding her work
duties. On August 20, 2015 OWCP received additional medical evidence.
In a July 22, 2015 report, Dr. David Melvin Walker, an employing establishment family
practice physician, diagnosed knee strain and knee swelling. He again diagnosed right knee
strain and swelling and provided work restrictions in an August 3, 2015 report.
By decision dated September 9, 2015, OWCP denied appellant’s claim. It found she had
failed to submit any medical evidence causally relating a diagnosed medical condition to
accepted factors of her federal employment.
On October 5, 2015 OWCP received appellant’s September 28, 2015 request for
reconsideration.
By decision dated October 8, 2015, OWCP denied appellant’s request for
reconsideration. It found that she failed to submit any new evidence or clearly identify the basis
for her reconsideration request.
On December 7, 2015 OWCP received additional medical evidence
In an August 25, 2015 report Dr. Daniel Dare, a treating Board-certified orthopedic
surgeon, noted that appellant was seen for bilateral knee problems. He diagnosed bilateral
patella chondromalacia and lateral meniscus knee cartilage tear. The report noted that appellant
injured herself at home when she fell and that it was not a work injury.
Appellant underwent right knee arthroscopic surgery on September 3, 2015.
In a September 15, 2015 report, Erin Hines, a nurse practitioner, noted that appellant was
seen for postoperative right knee complaints. She related appellant’s work restrictions and she
answered “no” to the question of whether appellant had a work-related injury. On October 13,
2015 Ms. Hines provided work restrictions for appellant and diagnosed right knee
chondromalacia.

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By report dated November 18, 2015, Dr. Dare diagnosed appellant with right knee
chondromalacia, and right knee lateral meniscus tear. He also noted appellant’s work
restrictions.
On December 7, 2015 OWCP received appellant’s December 2, 2015 request
reconsideration.
By decision dated February 8, 2016, OWCP denied modification. It found the medical
evidence appellant submitted failed to establish causal relationship between the accepted work
factors and the diagnosed knee conditions.
In an appeal request form dated March 28, 2016 and received on May 11, 2016, appellant
requested reconsideration. In support of her request appellant submitted a copy of her position
description as a cook.
In a letter dated May 18, 2016, OWCP advised counsel that it could not communicate
with the firm as no written authorization by appellant had been submitted. A copy of the letter
was sent to appellant.
By decision dated May 19, 2016, OWCP denied reconsideration. It advised appellant
that any request for reconsideration must be made within one year of February 8, 2016, the last
merit decision. It found the evidence submitted was duplicative and insufficient to warrant a
merit review.
In an undated letter received on February 22, 2017 appellant requested reconsideration.
She detailed her work duties as a cook and provided pictures of her work environment.
On February 28, 2017 OWCP received a letter dated February 8, 2017 from appellant
requesting reconsideration of the merits of her claim.
By decision dated April 6, 2017 OWCP determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.3 OWCP will not review a decision denying or
terminating a benefit unless the application for review is filed within one year of the date of that
decision.4 Timeliness is determined by the document receipt date (i.e., the “received date” in

3

Supra note 1. The Board has found that the imposition of the one-year limitation does not constitute an abuse of
the discretionary authority granted OWCP under section 8128(a) of FECA See J.S., Docket No. 10-385 (issued
September 15, 2010); Andrew Fullman, 57 ECAB 574 (2006); Adell Allen (Melvin L. Allen), 55 ECAB 390 (2004).
4

20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(February 2016); see also E.R., Docket No. 09-1655 (issued March 18, 2010); Debra McDavid, 57 ECAB 149
(2005); Alan G. Williams, 52 ECAB 180 (2000).

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OWCP’s Integrated Federal Workers’ Compensation System.5 The Board has found that the
imposition of the one-year limitation does not constitute an abuse of the discretionary authority
granted OWCP under section 8128(a) of FECA.6
When an application for review is untimely, OWCP undertakes a limited review to
determine whether the application demonstrates clear evidence that OWCP’s final merit decision
was in error.7 OWCP procedures provide that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s application for review shows “clear evidence of error” on the part of OWCP.8 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.10 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.12 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.13 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.14 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.15 The
Board makes an independent determination of whether a claimant has submitted clear evidence

5

Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4(b) (February 2016).

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

B.W., Docket No. 10-323 (issued September 2, 2010); M.E., 58 ECAB 309 (2007) Leon J. Modrowski, 55
ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).
See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “OWCP will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of [it] in its
most recent merit decision. The application must establish, on its face, that such decision was erroneous.”
20 C.F.R. § 10.607(b).
8

9

See Nelson T. Thompson, 43 ECAB 919 (1992).

10

See Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

11

See Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

12

See Leon J. Modrowski, supra note 7; Jesus D. Sanchez, supra note 7.

13

See Leona N. Travis, supra note 11.

14

See supra note 9.

15

Leon D. Faidley, Jr., supra note 6.

4

of error on the part of OWCP such that OWCP abused its discretion in denying merit review in
the face of such evidence.16
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
OWCP properly found that appellant’s requests for reconsideration received on
February 22, and 28, 2017 were untimely filed as more than one year elapsed between the last
merit decision issued in this case on February 8, 2016 and the date these requests for
reconsideration were scanned as received by OWCP.17
The Board also finds that appellant has failed to demonstrate clear evidence of error on
the part of OWCP in denying appellant’s claim.
In reconsideration requests, appellant requested a merit review of the denial of her claim.
She described her work duties and submitted photographs of her work area. However, OWCP
had accepted the alleged factors of federal employment. OWCP denied appellant’s claim
because the record was devoid of any medical evidence establishing causal relationship between
a diagnosed medical condition and the accepted work factors. The evidence submitted with an
untimely request for reconsideration must be positive, precise and explicit and must manifest on
its face that OWCP committed an error.18 Since OWCP had accepted appellant’s implicated
federal employment factors, her description of her work duties and the photographs submitted
were irrelevant to the underlying medical issue and were insufficient to demonstrate clear
evidence of error.19
For these reasons, appellant has not demonstrated clear evidence of error by OWCP in its
April 6, 2017 decision.
On appeal appellant contends that it was her counsel’s fault for failing to timely request
reconsideration of her claim. She contends that she was unaware that no signed attorney
authorization form had been submitted to OWCP. Contrary to appellant’s contention that she
was unaware of the May 18, 2016 letter to her attorney, the record reflects OWCP also mailed
her a copy of the letter that was sent to her attorney. The letter informed counsel that OWCP
was not authorized to provide it with any information regarding appellant’s claim as no signed
authorization had been submitted from appellant.20
16

See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon.
denied, 41 ECAB 458 (1990).
17

20 C.F.R. § 10.607(a).

18

Supra note 11.

19

See B.L., Docket No. 17-1452 (issued October 25, 2017).

20

See 20 C.F.R. § 10.700 regarding representation before OWCP.

5

CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 6, 2017 is affirmed.
Issued: December 13, 2017
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kansas City, MO,
Employer
__________________________________________

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

Docket No. 13-951
Issued: September 10, 2013

Case Submitted on the Record

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

JURISDICTION
On March 12, 2013 appellant filed a timely appeal of a January 23, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) denying expansion of his claim. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that his claim should be expanded to
include the conditions of bilateral cubital tunnel syndrome and bilateral/lateral and medial
epicondylitis.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 30, 2007 appellant, then a 59-year-old mail handler, filed an occupational
disease claim alleging that on March 22, 2004 he first realized that his bilateral carpal tunnel
syndrome was due to his employment duties. OWCP accepted the claim for bilateral carpal
tunnel syndrome and authorized carpal tunnel release surgery with right carpal tunnel surgery
performed on January 28, 2008 and left carpal tunnel surgery performed on February 18, 2008.
Appellant retired from the employing establishment effective October 31, 2007.2
In a September 3, 2009 report, Dr. Ronald Zipper, a second opinion Board-certified
osteopathic orthopedic surgeon provided an impairment rating for appellant’s bilateral carpal
tunnel condition. He, based upon a review of the medical evidence and physical examination,
noted additional diagnoses of bilateral ulnar tunnel syndrome and, cubital and/or wrist ulnar
compression neuropathy, which he attributed to appellant’s diabetic neuropathy and/or
hypothyroidism. Dr. Zipper also opined that these diagnoses were not consistent with the
accepted bilateral carpal tunnel condition.
On September 1, 2011 OWCP granted appellant’s request to change his treating
physician to Dr. Zipper.
In an October 4, 2011 report, Dr. Zipper diagnosed bilateral carpal tunnel condition,
bilateral elbow lateral epicondylitis, bilateral elbow medial epicondylitis and bilateral cubital
tunnel syndrome. A physical examination revealed good elbow range of motion, no tenderness
over the olecranon processes, negative bilateral cubital and carpal tunnel Tinel’s sign, negative
bilateral Phalen’s and Durkin’s tests. Dr. Zipper reported that appellant’s chief complaints
occurred due to palpation over the lateral and medical epicondyles.
On October 15, 2011 Dr. Zipper stated at the time of his second opinion evaluation, that
he incorrectly provided an opinion that appellant’s bilateral elbow and cubital complaints were
not employment related. He explained that he changed his opinion as to the cause of appellant’s
bilateral elbow and cubital complaints based upon further evaluation of appellant, the fact that
appellant returned to work following the carpal tunnel syndrome surgeries and that he did not
have at least four records available for review at the time of his September 9, 2009 report. In
addition, appellant stated that all his current complaints were present at the time he filed his
claim and that his complaints remained following the bilateral carpal tunnel surgeries.
Dr. Zipper concluded that appellant’s bilateral medial/lateral elbow epicondylitis and bilateral
cubital condition were not a result of appellant’s diabetes and hypothroidism. He requested that
appellant’s claim be expanded to include bilateral medial/lateral elbow epicondylitis and bilateral
cubital conditions. A physical examination revealed tenderness over the medial and lateral
epicondyles and positive bilateral cubital Tinel’s signs. Dr. Zipper diagnosed bilateral medial

2

On May 1, 2009 appellant filed a claim for a schedule award. By decision dated November 12, 2009, OWCP
granted him a schedule award for a one percent left upper extremity impairment and a one percent right upper
extremity impairment. On April 5, 2012 it issued an amended schedule which found appellant was entitled to a two
percent left upper extremity impairment and two percent right upper extremity impairment.

2

and lateral epicondyles, bilateral cubital tunnel syndrome and bilateral carpal tunnel syndrome,
which he attributed to appellant’s employment injury.
In an April 1, 2012 report, an OWCP medical adviser reviewed the medical evidence
including Dr. Zipper’s recent reports. He noted that the diagnoses of bilateral cubital syndrome
and bilateral medial/lateral elbow epicondylitis did not appear until after appellant retired from
the employing establishment in 2007. In addition, the December 28, 2007 electromyography
only had findings of bilateral carpal tunnel syndrome and no findings supporting a diagnosis of
cubital tunnel syndrome. As to the diagnosis of lateral medial epicondylitis, OWCP’s medical
adviser pointed out that this condition is not mentioned in any medical reports until Dr. Zipper’s
October 4, 2011 report, which is approximatley four years after appellant’s retirement. The
medical adviser noted that Dr. Zipper, in a September 3, 2009 report, concluded that the
condition of bilateral cubital syndrome was not consistent with the records review of the
accepted claim and that Dr. Zipper provided insufficient medical rationale to explain the change
in his opinion that the bilateral cubital syndrome was employment related. In addition,
Dr. Zipper offered no explanation as to why this condition was not diagnosed until three years
after appellant retired from the employing establishment.
By letter dated April 4, 2012, OWCP informed appellant that the evidence of record was
insufficient to warrant expansion of his claim. Appellant was advised as to the medical and
factual evidence required to support his claim and given 30 days to provide the requested
information.
In an April 12, 2012 report, Dr. Zipper provided physical findings and diagnosed bilateral
medial and lateral epicondyles, bilateral cubital tunnel syndrome and bilateral carpal tunnel
syndrome. He reviewed the medical adviser’s report and noted his disagreement with the
conclusions made therein.
By decision dated June 11, 2012, OWCP denied appellant’s requested to expand his
claim.
Appellant’s representative requested an oral hearing before an OWCP hearing
representative and a telephonic hearing was held on November 9, 2012.
By decision dated January 23, 2013, an OWCP hearing representative affirmed the
June 11, 2013 decision denying appellant’s request to expand the accepted conditions in his
claim.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence,4 including that he or she
3

5 U.S.C. §§ 8101-8103.

4

C.B., Docket No. 08-2268 (issued May 22, 2009); J.P., 59 ECAB 178 (2007); Amelia S. Jefferson, 57 ECAB
183 (2005).

3

sustained an injury in the performance of duty and that any specific condition or disability for
work for which he or she claims compensation is causally related to that employment injury.5
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence.6 The claimant must submit a rationalized medical opinion that supports a
causal connection between his or her current condition and the employment injury. The medical
opinion must be based on a complete factual and medical background with an accurate history of
the claimant’s employment injury and must explain from a medical perspective how the current
condition is related to the injury.7
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. Appellant had
authorized right carpal tunnel surgery on January 28, 2008 and left carpal tunnel surgery
performed on February 18, 2008. The record reflects that he retired from the employing
establishment effective October 21, 2007. OWCP denied appellant’s request to expand his claim
to include additional conditions in a June 11, 2012 decision, which was affirmed by an OWCP
hearing representative on January 23, 2013. The issue on appeal is whether appellant has
established that his claim should be expanded to include the conditions of bilateral cubital tunnel
syndrome and bilateral/lateral and medial epicondylitis. The Board finds that he failed to meet
his burden of proof.
In support of appellant’s request to expand his claim to include additional conditions, he
submitted various reports written over the period October 4, 2011 to April 12, 2012. Dr. Zipper,
an attending Board-certified orthopedic surgeon, diagnosed bilateral elbow lateral and medial
epicondylitis and bilateral cubital tunnel syndrome, which he opined were employment related.
In an October 15, 2011 report, he explained the reason for his change of opinion as to the cause
of these conditions. Dr. Zipper noted that at the time of his second opinion evaluation in 2009 he
incorrectly determined that appellant’s bilateral elbow and cubital complaints were not
employment related. He concluded that these conditions were employment related based on
further evaluation of appellant and the fact that appellant returned to work following the carpal
tunnel syndrome surgeries. Dr. Zipper also related that he reviewed four records which were
unavailable for review at the time of his September 9, 2009 report. In addition, he noted that all
of appellant’s current complaints were present at the time he filed his claim and continued
following the bilateral carpal tunnel surgeries. For these reasons, Dr. Zipper concluded that
appellant bilateral medial/lateral elbow epicondylitis and bilateral cubital conditions were
employment related and not due to preexisting conditions of diabetes and hypothyroidism.
Although, he attributed these conditions to appellant’s accepted employment injury, he offered
5

W.W., Docket No. 09-1619 (issued June 2, 2010); G.T., 59 ECAB 447 (2008); Frankie A. Farinacci, 56 ECAB
723 (2005); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
6

W.D., Docket No. 09-658 (issued October 22, 2009); T.H., 59 ECAB 388 (2008); Elizabeth H. Kramm
(Leonard O. Kramm), 57 ECAB 117 (2005); Thomas L. Agee, 56 ECAB 465 (2005).
7

D.U., Docket No. 10-144 (issued July 27, 2010); D.G., 59 ECAB 734 (2008); Donald W. Wenzel, 56 ECAB
390 (2005).

4

no medical rationale explaining how or why additional conditions he diagnosed were caused by
the accepted bilateral carpal tunnel syndrome or appellant’s employment duties in any of his
reports. This is particularly important as appellant retired in October 2007 and was not exposed
to the work factors which caused his accepted bilateral carpal tunnel condition. As Dr. Zipper
failed to provide sufficient reason for the change in his opinion or present any explanation
explaining how or why the accepted bilateral carpal tunnel syndrome or employment duties had
caused bilateral medial/lateral elbow epicondylitis and bilateral cubital conditions, his opinion is
of diminished probative value.8 His opinion is of further diminished probative value as it is
based on an incorrect factual history. Dr. Zipper stated that his conclusion that appellant’s
bilateral medial/lateral elbow epicondylitis and bilateral cubital conditions was in part due to the
fact that appellant returned to work following his carpal tunnel surgeries. However, the facts of
the record show that appellant retired in October 2007 and had both carpal tunnel surgeries in
early 2008. The Board has held that medical reports based on an inaccurate factual history are
entitled to little probative value.9 For these reasons, Dr. Zipper’s reports and opinion are
insufficient to support expansion of appellant’s claim. Thus, appellant has failed to establish that
his bilateral medial/lateral elbow epicondylitis and bilateral cubital conditions were employment
related.
The record also contains an April 1, 2012 report from an OWCP medical adviser who
reviewed the medical evidence including Dr. Zipper’s recent reports and concluded that the
diagnoses of bilateral cubital syndrome and bilateral medial/lateral elbow epicondylitis were not
employment related. In support of this conclusion, the medical adviser noted that the diagnosis
did not appear until after appellant retired from the employing establishment in 2007 and a
December 28, 2007 electromyography reported no findings supporting a diagnosis of cubital
tunnel syndrome. In addition, he noted that Dr. Zipper had previously opined that the condition
of bilateral cubital syndrome was not consistent and he has not provided sufficient medical
rationale to explain his change of opinion.
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 established that his claim should be expanded to
include the conditions of bilateral cubital tunnel syndrome and bilateral/lateral and medial
epicondylitis.

8

Robert Broome, 55 ECAB 339 (2004).

9

James R. Taylor, 56 ECAB 537 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 23, 2013 is affirmed.
Issued: September 10, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Dallas, TX, Employer
__________________________________________

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

Docket Nos. 06-1309 &
06-1153
Issued: June 14, 2007

Case Submitted on the Record

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

JURISDICTION
On May 31, 2006 appellant filed a timely appeal from a May 19, 2006 decision of the
Office of Workers’ Compensation Programs terminating her compensation. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate compensation
benefits as of May 19, 2006.

FACTUAL HISTORY
This claim has previously been on appeal before the Board. Appellant filed a claim for
bilateral carpal tunnel syndrome in September 2000, which the Office accepted.1 She
subsequently filed a claim for an employment-related emotional condition on March 14, 2002.
In an April 13, 2005 decision, the Board reversed an Office decision, finding that the medical
evidence established that her emotional condition was causally related to a compensable work
factor.2 The Office combined the two claims, File Nos. 110182040 and 112007176.
In a March 23, 2005 report, Dr. Olayinka Ogunro, a Board-certified orthopedic surgeon
and appellant’s treating physician, noted appellant’s complaints of continued tingling pain and
numbness in both hands. He stated that appellant was not capable of performing the duties and
physical requirements of her former job as a claims examiner.
In order to determine whether appellant still had residuals from her accepted carpal
tunnel condition, the Office referred her to Dr. Charles E. Graham, a Board-certified orthopedic
surgeon, for a second opinion examination. In a report dated May 26, 2005, Dr. Graham opined
that appellant was not capable of resuming her duties as a claims examiner. He stated:
“[Appellant] cannot return to those duties. The duties of claims examiner require
a lot of keyboarding and before she is able to do any of her duties she would need
to be retrained on something like the Dragon voice recognition equipment in order
to avoid the keyboarding problem”
Dr. Graham advised that appellant had permanent restrictions due to her carpal tunnel
condition which had not been addressed surgically and would recur rapidly if she used a
keyboard. He opined that if appellant did return to work she required retraining in a job which
did not require repetitive use of the upper extremities.
The Office determined that a conflict in the medical evidence existed between
Dr. Ogunro and Dr. Graham. Appellant was referred to Dr. David Willhoite, Board-certified in
orthopedic surgery. In a report dated September 26, 2005, Dr. Willhoite stated that he needed
appellant to undergo nerve conduction studies of both upper extremities and a functional
capacity examination in order to render an informed opinion on her condition.

1

In an August 2, 2002 decision, the Board reversed decisions of the Office which suspended her compensation
benefits for failure to participate in vocational rehabilitation. Docket No. 02-127 (issued August 2, 2002). In an
August 13, 2004 decision, the Board found that the Office did not meet its burden of proof to terminate
compensation benefits and reinstated her compensation. Docket No. 03-1592 (issued August 13, 2004).
2

In a December 4, 2003 decision, Docket No. 03-1447, the Board reversed the denial of appellant’s emotional
condition claim and found that appellant established a compensable work factor under Cutler. Following further
development of the medical evidence, the Office denied the claim, finding that the medical evidence did not
establish that her emotional condition was related to factors of her federal employment. In its April 13, 2005
decision, the Board reversed an Office decision and found that the medical evidence established that appellant
sustained depression which was contributed to by the work factor. Docket No. 04-1197 (issued April 13, 2005). See
also Docket No. 05-1722 (issued July 11, 2006).

2

The Office referred appellant to Dr. Hadi R. Tajani, a Board-certified psychatrist. In an
October 27, 2005 report, Dr. Tajani stated that appellant had a depressive disorder secondary to
her physical problems; i.e., her bilateral carpal tunnel syndrome. He related that appellant told
him that she was not working due to her physical problems. Dr. Tajani felt that she was
motivated to work if her doctors released her back to work. He concluded that her physical
condition seemed to be the problem keeping her from gainful employment and opined that
appellant was in fact able to return to work.
In a January 30, 2006 report, Dr. Willhoite stated:
“[Appellant] underwent electromyogram [EMG] and nerve conduction studies of
both upper extremities on November 18, 2005. The EMG and nerve conduction
studies were completely normal. [Appellant] underwent a functional capacity
evaluation on January 17, 2006. This evaluation indicated that she qualified for
the light category of work which would be well within her job description.
Therefore, in my opinion [appellant] can return to full duties at the position she
was in on her date of injury.”
On April 18, 2006 the Office issued a notice of proposed termination of compensation to
appellant. The Office found that the weight of the medical evidence, as represented by
Dr. Willhoite’s opinion, established that appellant was no longer disabled from a physical
standpoint due to the accepted carpal tunnel condition. The Office found that appellant was no
longer disabled due to her emotional condition based on Dr. Tajani’s referral opinion. The
Office allowed appellant 30 days to submit additional evidence or legal argument in opposition
to the proposed termination.
In a work capacity evaluation dated May 4, 2006, Dr. Ogunro reiterated that appellant
was unable to perform her usual job as claims examiner. He outlined permanent restrictions of
no sitting, walking or standing for more than 30 to 45 minutes at a time; no repetitive movements
of the wrists and elbows for more than 30 minutes at a time; no pushing, pulling or lifting more
than 5 pounds, for no more than 15 minutes at a time. Dr. Ogunro also indicated that appellant
must take a 30-minute break every hour.
By decision dated May 19, 2006, the Office terminated appellant’s entitlement to
compensation based on the opinions of Drs. Willhoite and Tajani.
LEGAL PRECEDENT
Once the Office 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.3
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.4
3

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

4

Id.

3

Section 8123(a) of the Federal Employees’ Compensation Act 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.5
ANALYSIS
The Board finds that the Office did not meet its burden to terminate appellant’s
compensation. The Office erred in finding that a conflict existed in the medical evidence
between Dr. Ogunro, appellant’s treating physician, and Dr. Graham, the Office’ second opinion
physician, whose referral report did not indicate that the residuals of appellant’s accepted
bilateral carpal tunnel syndrome had ceased. To the contrary, both Dr. Ogunro and Dr. Graham
opined that the accepted condition had not resolved.6 Dr. Graham opined that appellant had
permanent restrictions due to her carpal tunnel condition which had not been addressed
surgically and would recur rapidly if she returned to keyboarding. He also concurred with
Dr. Ogunro in stating that appellant was not capable of resuming her duties as a claims examiner
because the position required repetitive functions such as keyboarding for hours at a time.
Dr. Graham indicated that appellant could only return to work if she obtained retraining in a job
which did not require repetitive use of the upper extremities.
Accordingly, because the Office erroneously found a conflict in the medical evidence and
relied on the opinion of Dr. Willhoite to terminate appellant’s compensation, it failed to meet its
burden of proof in terminating appellant’s compensation for her accepted carpal tunnel
condition.
In addition, the Office failed to meet its burden of proof in terminating compensation for
appellant’s emotional condition. The Office based its decision to terminate appellant’s
compensation on the referral opinion of Dr. Tajani who stated that appellant had a depressive
disorder secondary to her physical problems; i.e., her bilateral carpal tunnel syndrome.
Dr. Tajani advised that appellant was currently not working due to her physical problems which
seemed to be the problem preventing her from returning to gainful employment. He felt that she
could be motivated to get back to work if her doctors released her back to work from a physical
standpoint.
The Board finds that Dr. Tajani’s report lacks probative value because it is insubstantial
and not well rationalized. In addition, Dr. Tajani has not clarified or elaborated the specific
background upon which he based his opinion. His opinion was not a sufficient basis on which to
terminate compensation for her emotional condition. The Board, therefore, finds that the Office
erred in relying on Dr. Tajani’s opinion in its May 19, 2006 termination decision.
5

5 U.S.C. § 8123(a).

6

See Federal (FECA) Procedural Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(a)(1)
(March 1994), which states:
“A conflict exists only when there is a disagreement between the attending physician and the
physician designated by the United States….”

4

CONCLUSION
The Board finds that the Office has failed to meet its burden to terminate appellant’s
compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the May 19, 2006 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 14, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, PLAZA STATION,
Pasadena, CA, Employer
__________________________________________

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

Docket No. 08-209
Issued: June 16, 2008

Case Submitted on the Record

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

JURISDICTION
On October 30, 2007 appellant filed a timely appeal from a May 9, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for a
prerecoupment hearing and a May 18, 2007 merit decision finding that she received an
overpayment of compensation and that she was at fault in its creation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the overpayment decision and over the
May 9, 2007 nonmerit decision.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for a
prerecoupment hearing; (2) whether appellant received an overpayment of $5,622.23 for the
period August 7 through November 4, 2000 because she received compensation from the Office
and sick and annual leave from the employing establishment; and (3) whether the Office properly
found that she was at fault in creating the overpayment, thereby precluding waiver of the
recovery of the overpayment.

FACTUAL HISTORY
This case is before the Board for the second time. On February 28, 2007 the Board
affirmed an August 11, 2005 decision reducing appellant’s compensation to zero effective
September 14, 2004 as her actual earnings as a video coding specialist fairly and reasonably
represented her wage-earning capacity.1 The Board also affirmed in part and set aside in part a
May 11, 2006 hearing representative’s decision affirming the loss of wage-earning capacity
determination and finding that the Office properly calculated appellant’s pay rate for
compensation purposes. The Board determined that the Office erred in calculating appellant’s
pay rate for compensation purposes from August 7, 2000 to September 14, 2004.2 The Board
found that, as appellant did not establish entitlement to compensation prior to August 7, 2000,
the Office should have paid her compensation based on the pay rate in effect on that date of
$766.71 per week. The hearing representative acknowledged that the Office owed appellant
additional compensation because it paid her at an inaccurate pay rate but found that it corrected
the error by subtracting the amount it owed her from an overpayment that was created when she
received compensation for total disability from August 7 to November 2, 2000 while also
receiving leave from the employing establishment. The Board noted that such an offset was
improper as it might permit an unrestricted recovery of the offset portion of the overpayment
without regard to the relevant factors set forth in the Office’s regulations. The Board remanded
the case for the Office to further develop the issue of the appropriate pay rate. The findings of
fact and conclusions of law from the prior decision are hereby incorporated by reference.
The record establishes that appellant received sick and annual leave from the employing
establishment from August through November 2000. She also received compensation for
disability from the Office during this period. On March 6, 2007 the Office informed appellant of
its preliminary determination that she received an overpayment of compensation in the amount
of $5,622.23 because she received compensation for total disability from August 7 through
November 4, 2000 while also receiving leave from the employing establishment. The Office
noted that the period did not include 24 hours of leave without pay used from October 10 to 13,
2000 and 6 hours of leave without pay used from November 3 to 4, 2000. The Office further
found that appellant received compensation at an inaccurate pay rate from August 7, 2000
through September 13, 2004. The Office related “[T]he claimant’s pay rate was tentatively
determined using the pay rate effective on March 10, 2000 as it was unclear at the time whether
compensation would be paid back to March. Therefore, the annual salary of $39,515.00
($759.90 per week) was used instead of the correct annual salary in effect on August 7, 2000 of
$39,869.00 ($766.71 per week).” The Office calculated that, using the correct pay rate and
excluding the dates she received leave from the employing establishment, it owed appellant
1

Docket No. 06-1620 (issued February 28, 2007). Appellant, a 43-year-old window clerk, filed an occupational
disease claim on January 25, 2001, which the Office accepted for cervical and right shoulder strain. The Office paid
her compensation beginning August 7, 2000 based on her pay rate effective March 10, 2000, the date she claimed
compensation for disability. Appellant had not established entitlement to compensation for disability before
August 7, 2000. The Office indicated, however, that it would pay appellant compensation based on her March 10,
2000 pay rate of $39,515.00 a year, or $759.90 per week, to prevent a possible overpayment of compensation. The
Office asserted that it would owe her additional compensation based on her August 7, 2000 pay rate of $39,869.00
per year if she did not establish entitlement to compensation beginning March 10, 2000.
2

See supra note 1.

2

$119,195.32 for the period August 7, 2000 through September 13, 2004. The Office paid her
$124,817.55 in compensation at the incorrect rate and during the time she received leave from
the employing establishment, which resulted in an overpayment of $5,622.23. The Office
informed appellant of its preliminary finding that she was at fault in creating the overpayment as
she should have known that she could not receive leave and compensation for disability at the
same time. It requested that she complete the enclosed overpayment recovery questionnaire and
notified her that, within 30 days of the date of the letter, she could request a telephone
conference, a final decision based on the written evidence or a prerecoupment hearing.
By letter dated April 4, 2007, postmarked April 6, 2007, appellant challenged the finding
that she received an overpayment of compensation. She argued that receiving leave differed
from receiving compensation. Appellant returned the overpayment recovery questionnaire with
notations that its questions were inapplicable. She also marked through the option to request a
telephone conference or a decision based on the written evidence. Appellant did not mark
through the request for a hearing.
In a decision dated May 9, 2007, the Office denied appellant’s request for a
prerecoupment hearing as a matter of right on the grounds that it was untimely. The Office
found that she could submit evidence regarding the overpayment to the Office.
By decision dated May 18, 2007, the Office finalized its preliminary determination that
appellant received a $5,622.23 overpayment of compensation for the period August 7 through
November 4, 2000, excluding 24 hours of leave without pay from October 10 to 13, 2000 and 6
hours of leave without pay from November 3 to 4, 2000. It excluded from the overpayment the
underpayment that was created when it paid her at an inaccurate pay rate from August 7, 2000
through September 13, 2004. The Office also finalized its finding that appellant was at fault in
creating the overpayment as she should have known that she could not receive compensation for
disability and leave from the employing establishment. The Office found that she should
forward a check for the full amount to repay the overpayment.
LEGAL PRECEDENT -- ISSUE 1
The Office’s procedures on the recovery of overpayments are found in the Code of
Federal Regulations at 20 C.F.R. § 10.321. The regulations provide that, before collecting an
overpayment, the Office must provide the claimant with written notice of the fact and amount of
overpayment, the finding of fault, the right to submit evidence challenging the fact, amount or
finding of fact and the right to request waiver of the overpayment.3 The regulations also provide
that a claimant is entitled to submit additional evidence in writing or at prerecoupment hearing,
that a prerecoupment hearing must be requested within 30 days of the date of the written notice
of overpayment and that failure to request the hearing within this 30-day time period shall
constitute a waiver of that right.4

3

20 C.F.R. § 10.431.

4

20 C.F.R. § 10.432.

3

ANALYSIS -- ISSUE 1
The Office notified appellant of its preliminary determination that she received an
overpayment of compensation in a letter dated March 6, 2007. The Office informed her that she
could request a telephone conference, a prerecoupment hearing or a final decision based on the
written evidence within 30 days of the date of the letter. Appellant requested a prerecoupment
hearing by letter postmarked April 6, 2007. As her request was postmarked more than 30 days
after the Office’s notification of overpayment, it was untimely. Thus, under the regulations
appellant waived her right to a prerecoupment hearing.5 Accordingly, the Office properly denied
her request for a prerecoupment hearing.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Federal Employees’ Compensation Act6 provides that when an
overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Office by decreasing later payments to which the
individual is entitled.7 The Office’s regulations state in pertinent part: “compensation for wage
loss due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.”8
Section 8116(a) of the Act provides that an employee who is receiving compensation for
an employment injury may not receive wages for the same time period.9 Section 8118(c) of the
Act provides that compensation for disability does not begin until termination of continuation of
pay or the use of annual or sick leave ends.10
ANALYSIS -- ISSUE 2
The Board finds that the Office properly determined that appellant received an
overpayment of compensation. From August 7 through November 4, 2000, she received wageloss compensation for total disability from the Office and sick and annual leave from the
employing establishment.11 As appellant used leave from the employing establishment, she was
not entitled to receive compensation for disability from the Office.12 She thus received an
overpayment of compensation from August 7 through November 4, 2000, excluding 30 hours of
5

Id.

6

5 U.S.C. §§ 8101-8193.

7

Id. at § 8129.

8

20 C.F.R. § 10.500.

9

5 U.S.C. § 8116(a).

10

Id. at § 8118(c).

11

The Office properly excluded from this period 30 hours of leave without pay.

12

5 U.S.C. § 8118(c).

4

leave without pay, because she received both leave from the employing establishment and
compensation for total disability from the Office.
The Board further finds that the Office properly determined that she received an
overpayment of $5,622.23. The Office calculated that it should have paid appellant $119,195.32
from August 7, 2000 to September 14, 2004 using the appropriate higher pay rate in effect on
August 7, 2000 of $766.71 and excluding the periods in which she received leave from the
employing establishment.13 The Office subtracted $119,195.32 from $124,817.55, the amount of
compensation it paid her using the incorrect pay rate and during the time she received leave from
the employing establishment from August 7 to November 4, 2000, to find a total overpayment of
$5,622.23.
Appellant has not challenged the amount of the overpayment but instead contends that
she is entitled to receive both leave and compensation. She asserts that she needed to take paid
leave rather than leave without pay in order to protect her position. The Act, however,
specifically prohibits receiving wage-loss compensation from the Office while using annual or
sick leave.14
Appellant further argues that the Office should not have withheld its underpayment of
compensation during the period August 7, 2000 to September 14, 2004 when it paid her at an
inaccurate pay rate as a partial recovery of the overpayment. Such an offset is not allowed if it
permits an unrestricted recovery of the offset portion of the overpayment without regard to the
factors set forth in the Office’s regulations for considering waiver as it denies an appellant due
process rights with respect to the amount offset.15 In this case, however, the Office found that
she was at fault in the creation of the overpayment and thus not entitled to wavier of the recovery
of any portion of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of the Act16 provides that “[a]djustment 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.” Section 10.433 of the Office’s implementing regulations17
provides that, in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. 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
13

On prior appeal, the Board found that the Office should have paid appellant based on the pay rate in effect on
August 7, 2000, the date disability began. See supra note 1.
14

5 U.S.C. § 8118(c).

15

Id.

16

5 U.S.C. § 8129(b).

17

20 C.F.R. § 10.433.

5

“(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.”
The regulation further provides that each recipient of compensation benefits is
responsible for taking all reasonable measure to ensure that payments he or she receives from the
Office are proper.18 Whether the Office determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the overpayment.19
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.20
ANALYSIS -- ISSUE 3
The Office found that appellant was at fault in the creation of the overpayment because
she accepted payments which she knew or should have known to be incorrect. The Office must
show that, at the time appellant received the compensation checks in question, she knew or
should have know that the payment was incorrect.21 With respect to whether an individual is
with fault, section 10.433(b) provides that the issue of fault 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.22
Appellant received sick or annual leave from the employing establishment while also
receiving compensation for total disability from the Office for the period August 7 through
November 4, 2000, excluding 30 hours of leave without pay. The question is whether she
accepted payments she knew or should have known to be incorrect when she accepted the
Office’s compensation payments.
The Board finds that appellant was at fault in creating the overpayment which occurred
from August 7 through November 4, 2000. She acknowledged that she took leave during the
time in question but contends that she is entitled to both compensation and leave. In applying the
tests to determine fault, the Office applies a “reasonable person” test.23 While appellant argued
that she was entitled to both disability compensation and leave, it was not reasonable for her to
expect that she could receive compensation for total disability from the Office and also sick or

18

Id.

19

Id. at § 10.433(b).

20

Id.

21

See Otha J. Brown, 56 ECAB 228 (2004); Karen K. Dixon, 56 ECAB 145 (2004).

22

Supra note 19.

23

Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

6

annual leave from the employing establishment. The Board thus finds that, under the
circumstances of the case, she is not without fault in the creation of the overpayment.24
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a prerecoupment
hearing. The Board further finds that she received an overpayment of $5,622.23 for the period
August 7 through November 4, 2000 because she received compensation from the Office and
sick and annual leave from the employing establishment and that she was not without fault in
creating the overpayment, thus precluding waiver of the recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 18 and 9, 2007 are affirmed.
Issued: June 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

24

The Board does not have jurisdiction to review the Office’s finding that she should repay the entire amount of
the overpayment in full. The Board’s jurisdiction is limited to reviewing those cases where the Office seeks
recovery from continuing compensation under the Act. See 20 C.F.R. § 10.441(a); Ronald E. Ogden, 56 ECAB
278 (2005).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Reading, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
William Bothwell, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1304
Issued: September 22, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 30, 2017 appellant, through her representative, filed a timely appeal from an
April 28, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$1,649.64 overpayment of compensation for the period November 10 to December 10, 2016;
1

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

5 U.S.C. § 8101 et seq.

(2) whether OWCP properly determined that appellant was at fault in the creation of the
overpayment of compensation, thereby precluding waiver of recovery of the overpayment; and
(3) whether OWCP properly required repayment of the overpayment by deducting $250.00 from
appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On February 9, 2009 appellant, then a 52-year-old letter carrier, sustained injury to her
left knee when she twisted it when exiting her postal vehicle at work. OWCP initially accepted
that she sustained a tear of the medial meniscus (posterior horn) of her left knee, and it later
expanded the accepted conditions to include degenerative joint disease of her left knee.
Appellant did not stop work around the time of her February 9, 2009 employment injury,
but stopped work on November 24, 2009 to undergo OWCP-approved partial medial
meniscectomy and chondroplasty on her left knee.
Appellant returned to limited-duty work on April 26, 2014 and received partial disability
compensation.3
Appellant stopped work on January 6, 2016 to undergo an OWCP-approved left knee
total replacement on that date and she received wage-loss compensation on the periodic rolls
beginning April 19, 2016.
In an April 19, 2016 letter, OWCP informed appellant that, beginning on that date, she
started receiving total disability compensation on the periodic rolls every 28 days. It advised her
that, to minimize the possibility of an overpayment of compensation, she must notify OWCP
immediately when she went back to work. OWCP informed appellant that, if she worked for any
portion of the period for which she received compensation, she must return the payment even if
she had already advised OWCP that she was working.4
In a November 3, 2016 report, Dr. Michael N. Fehm, an attending Board-certified
orthopedic surgeon, indicated that appellant was released from his care with respect to her left
knee condition as of November 10, 2016, at which time she could resume work.
The evidence of record contains payment records showing that appellant received
$1,649.64 in disability compensation for the period November 10 to December 10, 2016. On
November 12, 2016 appellant received a $1,490.00 EFT deposit to her bank account covering the
period October 16 to November 12, 2016 and that, on December 10, 2016, she received a
$1,490.00 EFT deposit covering the period November 13 to December 10, 2016. The payment
3

Appellant experienced other instances of work stoppage and return to light-duty work between November 2009
and April 2014. Some of these work stoppages were due to a work-related right foot condition (OWCP File No.
xxxxxx049) which is unrelated to the February 9, 2009 work injury.
4

OWCP advised appellant that, for payments sent by electronic fund transfer (EFT), a notification of the date and
amount of payment appears on the statement from her financial institution and that she was expected to monitor her
EFT deposits carefully, at least every two weeks. It informed appellant that, if she worked for any portion of the
period for which a deposit was made, she must advise OWCP immediately.

2

record for the November 12 and December 10, 2016 payments contain the notation, “Claimant
released to [return to work] November 10, 2016, started a new claim [assigned OWCP File
No. xxxxxx049] effective November 11, 2016, no longer claiming compensation under this
claim.”
The record contains a document memorializing a December 13, 2016 telephone call
during which appellant advised an OWCP official that she had been released to work for four
hours per day and that she was now claiming compensation under a new separate claim (OWCP
File No. xxxxxx049). On December 22, 2016 she advised another OWCP official by telephone
that her claim for compensation under OWCP File No. xxxxxx049 started on
November 11, 2016.
In a January 12, 2017 notice, OWCP advised appellant of its preliminary determination
that she received a $1,649.64 overpayment of compensation for the period November 10 to
December 10, 2016 because she received total disability compensation for this period after she
returned to full-time work on November 10, 2016. It also made a preliminary determination that
she was at fault in the creation of the overpayment because she was aware or should have
reasonably been aware that she was not entitled to receive wage-loss compensation benefits after
returning to full-time work.5 OWCP advised appellant that she could submit evidence
challenging the fact, amount, or finding of fault, and request waiver of recovery of the
overpayment. It informed appellant that she could submit additional evidence in writing, during
a teleconference with its district office, or at a prerecoupment hearing with its Branch of
Hearings and Review, but that a teleconference or prerecoupment hearing must be requested
within 30 days of the date of the written notice of overpayment. OWCP requested that appellant
complete and return an enclosed Overpayment Recovery Questionnaire (Form OWCP-20) within
30 days even if she was not requesting waiver of the overpayment.
Appellant submitted a Form OWCP-20, signed on January 31, 2017, in which she
provided figures for monthly income, monthly expenses, and assets. She claimed that the
$1,649.64 overpayment was improper because she believed that an overpayment was not created
for three of the days during the claimed period of the overpayment, i.e., November 10 to
December 10, 2016.6 Appellant further expressed her belief that she was not at fault in the
creation of the $1,649.64 overpayment and requested waiver of recovery of the overpayment.7
She requested a teleconference with OWCP’s district office.
During the teleconference held on March 24, 2017, appellant asserted that the amount of
the claimed $1,649.64 overpayment was improper. She claimed that the overpayment should not
include the dates November 10 to 13, 2016 because she was off work on those dates due to
5

OWCP discussed its April 19, 2016 letter which advised appellant that she could not accept a total disability
compensation payment for any period after her return to full-time work.
6

Appellant did not identify the particular days she felt should not have been included in the overpayment
calculation.
7

Appellant asserted that she advised OWCP of her return to work by submitting a medical report produced
around that time which discussed her ability to return to work. She claimed that OWCP had plenty of time to stop
the payments which created the $1,649.64 overpayment.

3

November 11, 2016 surgery related to a right foot condition developed under a separate claim
(OWCP File No. xxxxxx049). OWCP’s claims examiner indicated that she would research
OWCP File No. xxxxxx049 and determine whether the dates covered by the overpayment in the
current case were accurate. Appellant further argued she was not at fault in the creation of the
$1,649.64 overpayment. She asserted that OWCP had time to stop any improper payment after
she advised it of her return to work.
In an April 28, 2017 decision, OWCP determined that appellant received an overpayment
of compensation in the amount of $1,649.64. It found that she was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment. OWCP indicated that
it had considered the submitted financial information and determined that appellant would repay
the overpayment through deductions of $250.00 every 28 days from her continuing
compensation payments.8
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 duty.9 Section 8129(a) of FECA provides, in pertinent part, that 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.10
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.11 Section 10.500 of OWCP’s regulations provides that compensation for
wage loss due to disability is available only for any periods during which an employee’s workrelated medical condition prevents him or her from earning the wages earned before the workrelated injury.12
ANALYSIS -- ISSUE 1
The evidence of record shows that appellant returned to work for the employing
establishment at some point in November 2016, but she continued receiving total disability
8

At the time of OWCP’s April 28, 2017 decision, appellant was not receiving FECA wage-loss compensation
benefits in connection with her left knee injury (OWCP File No. xxxxxx922), but OWCP suggested that she was
receiving FECA wage-loss compensation benefits in connection with her right foot injury (OWCP File No.
xxxxxx049).
9

5 U.S.C. § 8102(a).

10

Id. at § 8129(a).

11

Id. at § 8116(a). The Board has held that a claimant is not entitled to receive temporary total disability and
actual earnings for the same period. See M.S., Docket No. 16-0289 (issued April 21, 2016).
12

20 C.F.R. § 10.500(a).

4

compensation after her return to work. The record contains OWCP payment records showing
that appellant received total disability compensation throughout November 2016 and up until
December 10, 2016. However, appellant would not be entitled to receive total disability
compensation after she returned to work for the employing establishment and was being paid
wages for that work.13 For these reasons, the Board finds that OWCP properly found that
appellant received an overpayment of compensation.
The Board further finds the amount of the overpayment of compensation is not in
posture. During the teleconference held on March 24, 2017, appellant asserted that the amount
of the claimed $1,649.64 overpayment was improper. She claimed that the overpayment should
not include the dates November 10 to 13, 2016 because she was off work on these dates due to
November 11, 2016 surgery related to a right foot condition developed under a separate claim
(OWCP File No. xxxxxx049).14 Without the above-noted information, the Board is unable to
make a reasoned determination regarding the amount of the overpayment, i.e., the overpayment
created by a prohibited dual payment.15
The Board finds that the case shall be remanded to OWCP for determination of the
amount of the overpayment.16 Given the Board’s finding regarding the first issue of the present
case, it is premature for it to consider the second and third issues of the present case. After
determining the amount of the overpayment, OWCP shall develop the matters of fault, waiver,
and method of recovery. After carrying out this development, OWCP shall issue a de novo
decision regarding these overpayment matters.
CONCLUSION
The Board finds that appellant received an overpayment of compensation. However, the
amount of the overpayment is not in posture. The case is remanded to OWCP for further
development with respect to amount of overpayment, fault, waiver, and method of recovery.

13

See supra notes 11 and 12.

14

OWCP’s claims examiner conducting the March 24, 2017 teleconference indicated that she would research
appellant’s right foot injury claim (OWCP File No. xxxxxx049) and determine whether the dates covered by the
overpayment in the current case were accurate. The Board notes that there is no indication in the record that the
OWCP claims examiner carried out such research.
15

See supra notes 11 and 12.

16

In carrying out this development, OWCP should make reference to appellant’s separate claim for a right foot
injury (OWCP File No. xxxxxx049).

5

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed in part and is set aside in part. The case is
remanded to OWCP for further action consistent with this decision.
Issued: September 22, 2017
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6