United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, FOREST HILL
STATION, Richmond, VA, Employer
__________________________________________

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

Docket No. 09-113
Issued: February 19, 2009

Case Submitted on the Record

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

JURISDICTION
On October 16, 2008 appellant filed a timely appeal from an August 27, 2008 decision of
the Office of Workers’ Compensation Programs that denied his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has a bilateral
foot condition causally related to factors of his federal employment.
FACTUAL HISTORY
On August 29, 2005 appellant, then a 46-year-old clerk/carrier, filed a Form CA-2,
occupational disease claim, alleging that after working in a light-duty clerk position because of a
foot condition for a number of years on August 16, 2005 he was returned to a carrier position
causing aggravation of bilateral pes planus. He had stopped work on August 1, 2005 and
returned to clerk duties on September 17, 2005. The employing establishment controverted the

claim, noting that appellant had not worked as a carrier since a 1991 injury and submitted a copy
of his position description.
In support of his claim, appellant submitted a January 2, 2004 treatment note from
Dr. William D. Brickhouse, a Board-certified orthopedic surgeon, which noted that appellant had
a history of bilateral plantar fascia fibromatosis and blister formation that occurred when he
worked as a letter carrier, and had continued complaints of pain and intermittent rashes. Physical
examination demonstrated a mild degree of pes planus (flat feet) bilaterally with some tenderness
in the mid part of his feet. Dr. Brickhouse diagnosed chronic history of blistering on the plantar
surfaces of both feet, stating “I [a]m not sure what this blistering and rash formation is about,”
and referred appellant to Dr. William Van Manen, Board-certified in orthopedic surgery. In a
July 29, 2004 report, Dr. Van Manen noted that appellant had blistering, painful, draining lesions
on the bottom aspect of his right foot that looked like athlete’s foot. On August 29, 2005 he
noted that appellant had continued foot problems and that the blistering had resolved for the most
part. Dr. Van Manen advised that appellant could return to light duty and should be off his feet
for 20 minutes each hour with a 25-pound lifting restriction. On November 3, 2005 he advised
that he had referred appellant for a functional capacity evaluation and that he would see appellant
on an as-needed basis.
By decision dated March 28, 2006, the Office denied the claim on the grounds that the
medical evidence did not establish that his foot condition was causally related to employment
factors. In a form request dated April 9, 2006, stamped received by the Office on January 28,
2008, appellant requested reconsideration and submitted a May 15, 2006 report in which
Dr. Brickhouse noted appellant’s continued complaints of bilateral foot pain, made worse by
attempting to stand and walk. Physical examination demonstrated full range of motion of the
ankles with no effusions or swelling and complaints of tenderness on palpation of the short
extensions of the toes. Dr. Brickhouse noted that appellant had mild pes planus and his feet were
flexible otherwise with no lesions or masses palpable. He diagnosed bilateral foot pain of
unclear etiology, and restricted appellant’s activities in terms of standing and walking.
In a January 30, 2008 decision, the Office found that, while appellant’s reconsideration
request was dated April 9, 2006, it was not received until January 28, 2008. It denied the
reconsideration request because it was untimely and appellant did not establish clear evidence of
error. On March 5, 2008 appellant filed an appeal with the Board and requested oral argument.
In an order dated August 14, 2008, the Board remanded the case and cancelled the scheduled oral
argument, finding that, as a copy of the mailing envelope was not in the case record, appellant’s
reconsideration request dated April 9, 2006 was deemed timely filed.1 The law and the facts of
the previous Board order are incorporated herein by reference.
In a merit decision dated August 27, 2008, the Office denied modification of the prior
decision. It reviewed Dr. Brickhouse’s May 15, 2006 report and found that it was insufficient to
establish causal relationship.

1

Docket No. 08-1170 (issued August 14, 2008).

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.3
Office’s regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”4 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.5
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8

2

5 U.S.C. §§ 8101-8193.

3

Gary J. Watling, 52 ECAB 278 (2001).

4

20 C.F.R. § 10.5(ee).

5

Solomon Polen, 51 ECAB 341 (2000).

6

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

7

Id.

8

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

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ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he has a
diagnosed foot condition causally related to factors of his federal employment because he failed
to submit rationalized medical evidence to support his claim. While appellant submitted reports
from Dr. Brickhouse and Dr. Van Manen, neither physician provided a clear opinion regarding
the cause of appellant’s diagnosed foot condition. Dr. Brickhouse advised that he did not know
the cause and merely noted appellant’s continued complaints of foot pain when he attempted to
stand or walk. The fact that work activities produced pain or discomfort revelatory of an
underlying condition does not raise an inference of causal relationship,9 and a diagnosis of
“pain” does not constitute the basis for payment of compensation.10 Likewise, the fear of future
injury is not compensable under the Act.11 Dr. Van Manen provided no opinion regarding
appellant’s diagnosed foot condition, and medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.12 While the medical opinion of a physician supporting causal relationship
does not have to reduce the cause or etiology of a disease or condition to an absolute certainty,
neither can such opinion be speculative or equivocal. The opinion of a physician supporting
causal relationship must be one of reasonable medical certainty that the condition for which
compensation is claimed is causally related to federal employment and such relationship must be
supported with affirmative evidence, explained by medical rationale and be based upon a
complete and accurate medical and factual background of the claimant.13
The Board finds that, as neither Dr. Brickhouse nor Dr. Van Manen clearly attributed any
diagnosed foot condition to employment factors, appellant failed to establish that his foot
condition in 2005 was caused by his federal employment.
CONCLUSION
The Board finds that appellant did not establish that he sustained a bilateral foot condition
causally related to factors of his federal employment.

9

Jimmie H. Duckett, 52 ECAB 332 (2001).

10

Robert Broome, 55 ECAB 339 (2004).

11

Manuel Gill, 52 ECAB 282 (2001).

12

Willie M. Miller, 53 ECAB 697 (2002).

13

Patricia J. Glenn, 53 ECAB 159 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 27, 2008 be affirmed.
Issued: February 19, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Glenco, GA, Employer
__________________________________________

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

Docket No. 17-1432
Issued: November 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 19, 2017 appellant filed a timely appeal from an April 19, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $7,453.43 for the period February 6 through March 4, 2017 for which he was not at
fault; and (2) whether OWCP properly denied waiver of recovery the overpayment.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its April 19, 2017 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, the Board lacks jurisdiction to review this additional evidence on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 26, 2014 appellant, then a 51-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1) alleging that on August 21, 2014 he injured his right shoulder while
swimming in the performance of his federal employment duties. OWCP accepted his claim for
sprain of the right shoulder rotator cuff and aggravation of osteoarthritis of the right shoulder
region. On December 31, 2014 it authorized right shoulder surgery. Appellant stopped work on
February 5, 2015 to undergo total right shoulder arthroplasty. OWCP authorized compensation
benefits beginning February 5, 2015 and placed him on the periodic rolls on February 8, 2015.
Appellant returned to full-time light-duty work without wage loss on April 6, 2015. He returned
to full duty on June 3, 2015.
On September 28, 2015 appellant filed a claim for a schedule award (Form CA-7). By
decision dated December 4, 2015, OWCP granted him a schedule award for 24 percent
permanent impairment of his right arm. The period of the award was from September 1, 2015 to
February 6, 2017 and a fraction of a day3 totalling 524.16 days. Appellant’s four-week
compensation rate was $7,622.44.
In a check dated March 4, 2017, OWCP provided appellant compensation for his
schedule award for the period February 5 through March 4, 2017 in the amount of $7,775.56.
OWCP determined that appellant had been entitled to receive compensation for only 1.16
days, rather than for the entire period of February 5 through March 4, 2017. It noted that his
overpayment of compensation for 27 days amounted to $7,497.86. OWCP further noted that
appellant’s daily pay rate was $277.70 and multiplied this amount by the additional 0.16 days to
which he was entitled to receive compensation of $44.43. It subtracted $44.43 from $7,497.86 to
reach the final overpayment amount of $7,453.43.
On March 15, 2017 OWCP provided appellant with a preliminary determination of an
overpayment. It noted that he had received an overpayment of compensation in the amount of
$7,453.43 as his schedule award payments were inadvertently continued through March 4, 2017.
OWCP determined that appellant was not at fault in the creation of the overpayment. It
requested that he complete an overpayment recovery questionnaire (Form OWCP-20) to
determine the issues of waiver and recoupment. OWCP provided appellant with his appeal
rights to either request a telephone conference, a final decision based on the written evidence, or
a prerecoupment hearing. It afforded him 30 days to respond. Appellant did not respond within
the time allotted.
By decision dated April 19, 2017, OWCP found that appellant was not at fault in the
creation of the overpayment in the amount of $7,453.43 for the period February 6 through
March 4, 2017. It noted that the overpayment arose because his schedule award was
inadvertently paid through March 4, 2017. OWCP found that appellant had not responded to the

3

There is a typographical error in the December 4, 2015 decision which lists the period of the award through
February 8, 2017. The schedule award calculations in the record provide that the period of the award was from
September 1, 2015 through February 6, 2017 or 74.88 weeks in the amount of $20,417.25.

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preliminary determination of overpayment and without financial information the overpayment
was not subject to waiver. It requested that he remit the overpayment amount within 30 days.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA4 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. Section 20 C.F.R. § 10.404
states that compensation is provided for specified periods of time for the permanent loss or loss
of use of certain members.5
OWCP procedures provide that an overpayment is created when a schedule award expires
but compensation continues to be paid.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $7,453.43 for the period February 6 through March 4, 2017.
The amount of the overpayment is not in dispute.
Appellant was granted a schedule award on December 4, 2015 for the period
September 1, 2015 through February 6, 2017. The evidence of record establishes that he
continued to receive schedule award payments from OWCP after February 6, 2017, the date the
award was scheduled to expire, until March 4, 2017. Consequently, any payments appellant
received from OWCP after February 6, 2017 constituted an overpayment of benefits. OWCP
properly calculated the $7,453.43 overpayment by reducing the amount of compensation he
received, $7,775.56 by the amount he was entitled to receive $322.13, to reach the overpayment
amount of $7,453.43. The Board affirms the fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.7 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b):
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
4

5 U.S.C. § 8107.

5

20 C.F.R § 10.404. Effective May 1, 2009, OWCP began using the American Medical Association, Guides to
the Evaluation of Permanent Impairment (6th ed. 2009). See J.L., Docket No. 14-0898 (issued March 26, 2015).
6

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(c) (May 2004).
7

5 U.S.C. § 8129(a).

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adjustment or recovery would defeat the purpose of [FECA] or would be against
equity and good conscience.”
Thus, a finding that appellant was without fault is insufficient, in and of itself, for OWCP
to waive the overpayment. OWCP must exercise it discretion to determine whether recovery of
the overpayment would defeat the purpose of FECA or would be against equity and good
conscience, pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations8 provides that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship by depriving a
presently or formerly entitled beneficiary of income and resources needed for ordinary and
necessary living expenses and outlines the specific financial circumstances under which recovery
may be considered to defeat the purpose of FECA.
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.9
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by OWCP,
as this information is needed to determine whether or not recovery of an overpayment would
defeat the purpose of FECA or be against equity and good conscience.10 This information would
also be used to determine the repayment schedule, if necessary. Section 10.438(b) provides that
failure to submit the requested information within 30 days of the request shall result in denial of
waiver.11
ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.12
In a March 15, 2017 preliminary notice of overpayment, OWCP advised appellant of its
preliminary determination and instructed him to complete the enclosed overpayment recovery
questionnaire and submit supporting financial documents. Additionally, it notified him that,
within 30 days of the date of the letter, he could request a telephone conference, a final decision
8

20 C.F.R. § 10.436.

9

Id. at § 10.437.

10

Id. at § 10.438(a).

11

Id. at § 10.438(b).

12

5 U.S.C. § 8129.

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based on the written evidence, or a prerecoupment hearing. Appellant failed to respond within
the allotted time and did not submit the overpayment recovery questionnaire or supporting
financial documents. Thus, OWCP did not have the necessary financial information to
determine if recovery of the overpayment would defeat the purpose of FECA or if recovery
would be against equity and good conscience such that it would cause a financial burden.
Consequently, as appellant did not submit the financial information OWCP had properly
requested from him, as required under section 10.438 of its regulations,13 which was necessary to
determine his eligibility for waiver, OWCP properly denied waiver of recovery of the
overpayment in the amount of $7,453.43 for the period February 6 through March 4, 2017.
On appeal, appellant asserts that he should not have to repay the overpayment as he was
not at fault in creating the overpayment. The Board has held that, although a claimant was
without fault in the matter of the overpayment, repayment is still required unless adjustment or
recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.14 As noted, appellant is not eligible for waiver as he did not submit the requested
financial information before issuance of OWCP’s April 19, 2017 decision.
With respect to the manner of recovery of an overpayment, the Board’s jurisdiction is
limited to reviewing those cases when OWCP seeks recovery from continuing compensation
benefits under FECA. Where appellant is no longer receiving wage-loss compensation, the
Board does not have jurisdiction with respect to OWCP’s recovery of an overpayment under the
Debt Collection Act.15
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $7,453.43 for the period February 6 through March 4, 2017 for which he was not at fault; and
that OWCP properly denied waiver of recovery of the overpayment.

13

20 C.F.R. § 10.438; R.L., Docket No. 16-1564 (issued January 4, 2017).

14

K.K., Docket No. 09-0207 (issued October 2, 2009).

15

See Lewis George, 45 ECAB 144, 154 (1993).

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ORDER
IT IS HEREBY ORDERED THAT the April 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
San Diego, CA, Employer
__________________________________________

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

Docket No. 19-0247
Issued: August 1, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On November 1, 2018 appellant filed a timely appeal from a July 30, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 27
percent permanent impairment of his right lower extremity, for which he previously received
schedule award compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 28, 2003 appellant, then a 32-year-old customs and border patrol agent, filed a
traumatic injury claim (Form CA-1) alleging that on July 27, 2003 he injured his right ankle when
an all-terrain vehicle he was driving struck a rock and overturned while in the performance of duty.
OWCP assigned that claim OWCP File No. xxxxxx819 and on August 28, 2003 accepted it for
right ankle sprain. Appellant returned to full-duty work on September 30, 2003 and stopped work
on January 30, 2004 to undergo right ankle arthroscopy due to instability, synovitis, and peroneal
tendon tendinitis. He returned to full-time light-duty work on March 15, 2004 and full-time regular
duty on April 26, 2004.
On October 15, 2004 appellant filed claim for a schedule award (Form CA-7). By decision
dated December 9, 2004, OWCP granted him a schedule award for 12 percent permanent
impairment of his right lower extremity due to right ankle pain and loss of motion impairment in
accordance with the fifth edition of the American Medical Associations, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).2 Appellant had previously received a schedule award
for 15 percent permanent impairment of his right lower extremity under a prior claim assigned
OWCP File No. xxxxxxx015.3
On August 9, 2013 appellant filed a traumatic injury claim (Form CA-1) alleging that on
August 9, 2013 he stepped awkwardly and twisted his right knee while in the performance of duty.4
On August 15, 2013 he underwent a right knee magnetic resonance imaging (MRI) scan which
demonstrated diffuse chondral loss, iliotibial band syndrome, and a small popliteal cyst. On
September 18, 2013 OWCP accepted appellant’s claim for sprain of the lateral collateral ligament
of the right knee, chondromalacia patella, and other enthesopathy of the right knee. On October 10,
2013 appellant underwent right knee arthroscopy to repair his right knee chondral flap tear,
osteoarthritis, and synovitis. He returned to full-duty work on December 3, 2013.
In a note dated January 13, 2014, appellant’s attending physician, Dr. Robert M.
Maywood, a Board-certified orthopedic surgeon, found that appellant had reached maximum
medical improvement (MMI). In a narrative report of even date, he applied the sixth edition of
the A.M.A., Guides5 to his physical findings of continued right knee pain, full thickness chondral
loss in the medial femoral condyle, tenderness to palpation along the medial joint line,
patellofemoral crepitus, as well as normal strength and range of motion (ROM). Dr. Maywood
determined that appellant had eight percent permanent impairment of the right lower extremity.

2

A.M.A., Guides, (5th ed. 2000).

In OWCP File No. xxxxxx015, OWCP accepted appellant’s July 14, 1999 occupational disease claim for right
great toe contusion and right knee lateral meniscus tear with patella chondromalacia. On August 31, 1999 appellant
underwent right knee arthroscopy. He received a schedule award for 15 percent permanent impairment of his right
lower extremity due to degenerative joint disease of the right knee.
3

4

The present claim was assigned OWCP File No. xxxxxx062. OWCP File Nos. xxxxxx015, xxxxxx062, and
xxxxxx819 have not been administratively combined.
5

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

2

On February 11, 2014 appellant filed a claim for an increased schedule award (Form
CA-7). By decision dated February 27, 2014, OWCP denied his claim for an increased schedule
award. It found that Dr. Maywood determined that appellant currently exhibited eight percent
permanent impairment of his right lower extremity. OWCP determined that as he had previously
received schedule awards totaling 27 percent permanent impairment of his right lower extremity,
he was not entitled to an increased schedule award.
On May 18 and 26, 2016 Dr. Tal S. David, a Board-certified orthopedic surgeon, and
Dr. Maywood examined appellant due to right knee pain. The physicians found focal medial joint
line tenderness, crepitus, and joint effusion. Dr. Maywood diagnosed grade 3 to 4 chondromalacia
and degenerative arthritis. Both physicians recommended a right total knee arthroplasty as
appellant had failed anti-inflammatories, physical therapy, visco-supplementation injection,
cortisone injections, brace use, and activity modification. On August 23, 2016 Dr. David
performed a right total knee replacement. On January 31, 2017 he performed manipulation of
appellant’s right knee arthroplasty under anesthesia.
Appellant returned to full-time modified-duty work on April 16, 2017 and full duty on
May 31, 2017.
In a May 31, 2017 report, Dr. Maywood found that appellant’s right lower extremity was
at MMI. He noted that appellant reported continued right knee pain and hamstring iliotibial band
tightness. Dr. Maywood performed a physical examination and found mediolateral instability was
7 millimeters and that anteroposterior instability was 10 millimeters. He found that appellant’s
right knee demonstrated 120 degrees of flexion. Dr. Maywood evaluated appellant’s right knee
impairment in accordance with Table 16-3, page 511 of the A.M.A., Guides. He found that
appellant had a fair result from his total knee replacement with mild instability and mild loss of
ROM. Dr. Maywood noted that this was a class 3 impairment with grade C or 37 percent
permanent impairment of the right lower extremity. He determined that appellant’s grade modifier
for functional history (GMFH) was mild, that his grade modifier for physical examination (GMPE)
was moderate, and that his grade modifier for clinical studies (GMCS) was mild resulting in a net
adjustment to grade A or 31 percent permanent impairment of the right lower extremity. On
June 23, 2017 and January 3, 2018 appellant filed claims for an increased schedule award (Form
CA-7).
In a note dated August 16, 2017, Dr. David reported that appellant had no change in his
right knee condition and continued to describe intermittent pain.
On January 28, 2018 Dr. Eric M. Orestein, a Board-certified orthopedic surgeon serving as
an OWCP district medical adviser (DMA), reviewed Dr. Maywood’s report and the statement of
accepted facts (SOAF). He disagreed with Dr. Maywood’s finding that appellant had reached
MMI as his examination occurred less than one year after the knee replacement surgery. The
DMA recommended a second opinion evaluation.
In a March 21, 2018 note, Dr. David performed an impairment rating based on continued
pain, antalgic gait, loss of ROM, and medial instability. He determined that appellant had 31
percent permanent impairment of the right lower extremity in accordance with Table 16-3, page

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511 of the A.M.A., Guides. Dr. David opined that appellant had a class 3 impairment due to loss
of motion and medial instability.
On April 23, 2018 OWCP referred appellant, a SOAF, and list of questions for a second
opinion evaluation to Dr. Jon P. Kelly, a Board-certified orthopedic surgeon. In his May 8, 2018
report, Dr. Kelly noted that he was examining appellant’s right lower extremity for schedule award
purposes. He found that appellant’s right total knee replacement was cemented in such a fashion
as to create a slight valgus alignment. Dr. Kelly found that appellant’s right knee flexion varied
between 122 to 124 degrees when measured three times. On x-ray he found that appellant’s right
knee had five degrees of valgus. Dr. Kelly applied the sixth edition of the A.M.A., Guides and
determined that, based on x-rays, appellant’s arthroplasty was in a fair position with slight valgus.
He noted that instability was not evident on clinical examination, but that appellant reported
incidents of “giving way” of his right knee. Dr. Kelly also noted appellant’s incomplete flexion,
a mild motion deficit. He determined that appellant had class 3 impairment. Dr. Kelly found a
GMFH of 1 due to episodic “giving way” of the right knee, a GMPE of 1 due to loss of flexion,
and a GMCS of 2 due to tibial baseplate valgus position. He applied the net adjustment formula
and determined that appellant had 31 percent permanent impairment of the right lower extremity.
On June 15, 2018 a DMA reviewed Dr. Kelly’s findings and applied the sixth edition of
the A.M.A., Guides. He noted that neither appellant’s mild valgus alignment of 5 degrees nor his
loss of flexion at 122 to 124 degrees were considered to be motion deficits or a fair positioning of
the arthroplasty in accordance with Table 16 to 23, page 549 of the A.M.A., Guides. The DMA
found that appellant had a good result for the right total knee replacement. He determined that
appellant had grade 0 GMFH with no antalgic gait and that the GMCS was not applicable. The
DMA completed the net adjustment formula and found 21 percent permanent impairment of the
right lower extremity. In an addendum dated June 15, 2018, he noted that appellant had previously
received schedule awards totaling 27 percent permanent impairment of the right lower extremity
and therefore was not eligible for an increased schedule award.
By decision dated July 30, 2018, OWCP denied appellant’s claim for an increased schedule
award. It found that the DMA’s determination of 21 percent permanent impairment of the right
lower extremity was entitled to the weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provisions of FECA,6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

4

the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions issued after
May 1, 2009, the sixth edition is used to calculate schedule awards.9
In addressing lower extremity impairments, the sixth edition requires identification of the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based
on GMFH, GMPE, and GMCS. The net adjustment formula is (GMFH - CDX) + (GMPE - CDX)
+ (GMCS - CDX).10 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations of
modifier scores.11 Section 16.2a of the A.M.A., Guides provides that, if the class selected is
defined by physical examination findings or clinical studies results, these same findings may not
be used as grade modifiers to adjust the rating.12
The sixth edition of the A.M.A., Guides provides for a possibility that two conditions are
present within a limb and that there could be multiple lower extremity impairments.13 These
impairments should be combined to reach the total lower extremity impairment. It is well
established that benefits payable under 5 U.S.C. § 8107(c) are reduced by the period of
compensation paid under the schedule for an earlier injury if: (1) compensation in both cases is
for impairment of the same member or function or different parts of the same member or function;
and (2) the latter impairment in whole or in part would duplicate the compensation payable for the
preexisting impairment.14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP DMA for an opinion concerning the nature and percentage of
permanent impairment in accordance with the A.M.A., Guides, with the DMA providing rationale
for the percentage of impairment specified.15
Section 8123(a) 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

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6 (March 2017).
10

A.M.A., Guides 521.

11

Id. at 4, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement; L.G., Docket No. 18-0519 (issued March 8, 2019); W.S., Docket No. 16-1111
(issued March 14, 2017).
12

A.M.A., Guides 500.

13

Id. at 529.

14

See L.G., supra note 11; J.K., Docket No. 16-1361 (issued April 18, 2017); J.S., Docket No. 15-1252 (issued
January 19, 2016); T.S., Docket No. 09-1308 (issued December 22, 2009); 20 C.F.R. § 10.404(d).
15

See supra note 9 at Chapter 2.808.6(f) (March 2017).

5

third physician who shall make an examination.16 The implementing regulations provides that, if
a conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee or independent medical examination
and OWCP will select a physician who is qualified in the appropriate specialty and who has no
prior connection with the case.17 In situations where there exist opposing medical reports of
virtually equal weight and rationale and the case is referred to an independent medical examiner
(IME) for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight.18
ANALYSIS
The Board finds that the case is not in posture for a decision.
In support of his schedule award claim, appellant submitted a May 31, 2017 report from
Dr. Maywood finding that appellant had reached MMI and had 31 percent permanent impairment
of his right lower extremity due to his total knee arthroplasty. On January 28, 2018 the case file
and Dr. Maywood’s report was routed to the DMA, who determined that as the impairment rating
had been issued less than one year since appellant’s August 23, 2016 surgery, it was likely that his
right knee condition could continue to improve and that therefore he had not yet reached MMI on
May 31, 2017. He recommended a second opinion evaluation.
On March 21, 2018 Dr. David provided an impairment rating based on continued pain,
antalgic gait, loss of ROM, and medial instability. He determined that appellant had 31 percent
permanent impairment of the right lower extremity. Dr. David attributed appellant’s class 3
impairment due to loss of ROM and medial instability. He did not provide correlation of his
findings with the A.M.A., Guides or indicate that he applied the grade modifiers in the net
adjustment formula.
In a May 8, 2018 report, Dr. Kelly, the second opinion evaluator, found that appellant’s
right total knee replacement was cemented in such a fashion as to create a slight valgus alignment
of five degrees. He further found that appellant’s right knee flexion varied between 122 to 124
degrees when measured three times. Dr. Kelly applied the sixth edition of the A.M.A., Guides,
and determined that appellant had class 3 impairment. He found a GMFH of 1 due to episodic
“giving way” of the right knee, a GMPE of 1 due to loss of flexion, and a GMCS of 2 due to tibial
baseplate valgus position. Dr. Kelly applied the net adjustment formula and determined that
appellant had 31 percent permanent impairment of the right lower extremity.
On June 15, 2018 a DMA applied the sixth edition of the A.M.A., Guides to Dr. Kelly’s
findings. He noted that neither appellant’s mild valgus alignment of 5 degrees nor his loss of
flexion at 122 to 124 degrees were considered to be motion deficits or fair positioning of the
16

5 U.S.C. § 8123(a).

17

20 C.F.R. § 10.321.

18

L.C., Docket No. 18-1759 (issued June 26, 2019); R.C., 58 ECAB 238 (2006).

6

arthroplasty in accordance with Table 16-23, page 549 contrary to Dr. Kelly’s application of the
A.M.A., Guides. The DMA concluded that appellant had a good result for the right total knee
replacement, class 2 impairment, rather than the class 3 impairment due to a fair result found by
Dr. Kelly. He explained that application of the net adjustment formula for a class 2 total knee
replacement resulted in 21 percent impairment of the right lower extremity.
The Board finds that there is a conflict in the medical opinions between appellant’s treating
and second opinion physicians and the DMA as to the class of injury and the resultant extent of
appellant’s right lower extremity permanent impairment. As there is a conflict in the medical
evidence as to the extent of disability, the case must be remanded to OWCP for referral to an IME
for resolution of the conflict in accordance with 5 U.S.C. § 8123(a).19
The Board observes that, in an addendum dated June 15, 2018, the DMA noted that
appellant had previously received schedule awards totaling 27 percent permanent impairment of
the right lower extremity and therefore was not eligible for an increased schedule award. OWCP
had previously accepted that appellant sustained right lower extremity permanent impairments of
15 percent permanent impairment of his right lower extremity due to degenerative joint disease of
the right knee under OWCP File No. xxxxxx015, and 12 percent permanent impairment of his
right lower extremity due to right ankle pain and loss of motion impairment under OWCP File No.
xxxxxx819 for a total of 27 percent permanent impairment of his right lower extremity. The record
currently before the Board does not contain the impairment rating medical reports contained under
OWCP File No. xxxxxx015.20
The Board has previously held that simply comparing the prior percentage of permanent
impairment awarded to the current impairment for the same member is not always sufficient to
deny an increased schedule award claim.21 The issue is not whether the current permanent
impairment rating is greater than the prior impairment ratings, but whether it duplicates in whole
or in part the prior impairment rating.22
The Board will therefore remand the case to OWCP for further development of the claim,
including administratively combining the case files.23 OWCP shall thereafter refer appellant, an
updated SOAF, and all the applicable medical records to an IME to properly determine the extent
of permanent impairment of the right lower extremity based on physical examination of her right
knee. The IME shall use the proper tables and figures of the A.M.A., Guides and shall provide
medical rationale as to the assignment of a class of diagnosis and grade modifiers. After such

19

See supra note 15.

20

Upon return of the case record OWCP shall administratively combine the present claim, which shall serve as the
master file, with File Nos. xxxxxx015 and xxxxxx819. Pursuant to OWCP procedures cases should be doubled where
correct adjudication depends on cross-referencing between files. See supra note 9 at Chapter 2.400.8(c)(2)
(February 2000).
21

M.K., Docket No. 18-1614 (issued March 25, 2019); T.S., Docket No. 16-1406 (issued August 9, 2017).

22

Id.

23

See supra note 20.

7

further development as OWCP deems necessary it shall fully consider appellant’s prior schedule
awards and issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 30, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: August 1, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Drakesboro, KY,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0087
Issued: August 16, 2021

Case Submitted on the Record

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

On October 9, 2019 appellant sought appeal from a purported September 20, 2019
decision of the Office of Workers’ Compensation Programs (OWCP). The Board assigned
Docket No. 20-0087.
The Board, having duly considered the matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation
Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3. This jurisdiction encompasses any final
decision issued by OWCP within 180 days of the date appellant filed his appeal.2 The case
record as transmitted to the Board does not contain a final adverse decision dated
September 20, 2019. The last OWCP decision of record was a July 1, 2016 decision of OWCP.3
As there is no final adverse decision issued by OWCP over which the Board may properly
exercise jurisdiction, the Board concludes that the appeal docketed as No. 20-0087 must be
dismissed. Accordingly,
1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 501.3(e).

3

Docket No. 16-1533 (issued March 15, 2018).

IT IS HEREBY ORDERED THAT the appeal docketed as No. 20-0087 is dismissed.
Issued: August 16, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF LABOR, TURNER JOB
CORPS CENTER, Albany, GA, Employer
__________________________________________

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

Docket No. 09-1981
Issued: June 11, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 30, 2009 appellant filed a timely appeal from the September 5, 2008
overpayment decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUES
The issues are: (1) whether the Office properly found that appellant received an
overpayment of compensation in the amount of $10,409.57 from September 30, 2007 through
July 5, 2008; (2) whether the Office properly found that he was at fault in the creation of the
overpayment and therefore ineligible for waiver; and (3) whether the Office properly directed
recovery by collecting $123.00 from continuing compensation payments.
On appeal, appellant noted that he was incarcerated when the decision reducing his
compensation was issued and, therefore, did not receive notice that his benefits were reduced.

FACTUAL HISTORY
On November 23, 1994 appellant, then a 25-year-old student, filed a traumatic injury
claim alleging injury to his right knee when he stepped into a hole while running to his trade. On
January 14, 1995 the Office accepted his claim for a right knee meniscus tear. Appellant
underwent surgery for a right knee partial lateral meniscectomy and one-third patellar tendon
anterior cruciate ligament reconstruction on February 14, 1995.1
In a January 26, 2005 letter, the Office notified appellant of its proposal to reduce his
wage-loss compensation as he had the capacity to perform the duties of an assembler of small
products and earn wages of $300.80 a week. The letter was sent to his address of record.
In a March 23, 2005 decision, the Office reduced appellant’s compensation to reflect his
87 percent wage-earning capacity in the constructed position. The decision was sent to
appellant’s address of record.
In a July 19, 2007 letter, appellant advised the Office that he had been released from
incarceration and sought a medical appointment with his attending physician. He noted that he
sought to have his compensation reinstated. Appellant also notified the Office of a new home
address.
On August 1, 2008 the Office notified appellant of its preliminary determination of an
overpayment in compensation of $10,409.57. It advised that it had reinstated wage-loss
compensation for total disability rather than under the 2005 wage-earning capacity
determination. From September 30, 2007 to July 5, 2008, appellant received benefits in the
amount of $11,612.25 but was entitled to only $1,202.68, the difference representing an
overpayment. The Office found that appellant was at fault in the creation of the overpayment
because he knew or should have known that the compensation he received was at an incorrect
rate for total disability. Appellant was advised of the procedures for contesting the preliminary
determination and requested to submit updated financial information. The notice was sent to
appellant’s new address of record. Appellant did not respond.
In a September 5, 2008 decision, the Office finalized the overpayment determination in
the amount of $10,409.57. Appellant was found at fault in the creation of the overpayment and
advised that it would be recovered by deductions of $123.00 from his continuing periodic roll
payments. The decision was sent to appellant’s address of record.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides that the United States shall pay
compensation for the disability or death of an employee resulting from personal injury sustained
while in the performance of duty.2 If disability is total, the United States will pay the employee
1

The record reflects that appellant was referred for vocational rehabilitation services in 1995, 2002 and 2003
following periods of incarceration. The evidence does not reflect that he filed any claim for a schedule award.
2

5 U.S.C. § 8102(a).

2

during the disability monthly compensation equal to 66 2/3 percent of his monthly pay.3 If the
disability is partial, the United States will pay the employee during the disability monthly
monetary compensation equal to 66 2/3 percent of the difference between his monthly pay and
his wage-earning capacity.4
Section 8129 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 Secretary
of Labor by decreasing later payments to which the individual is entitled.5
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in the amount of $10,409.57.
In a March 25, 2005 decision, the Office found that appellant had an 87 percent wageearning capacity based on his ability to perform the duties of a small parts assembler. It reduced
his wage-loss benefits from total disability to partial disability effective that day and advised
appellant of his new compensation rate of $170.00 each four weeks. The record reflects that
appellant was incarcerated and his compensation benefits were suspended. Upon his release, he
requested on July 19, 2007 that the Office reinstate his benefits and advised it of a new home
address. The Office restored appellant’s wage-loss benefits but at the rate of total disability and
not under the wage-earning capacity for partial disability as found in 2005. From September 30,
2007 through July 5, 2008, appellant received monetary compensation in the amount of
$11,612.25; however, he should have received only $1,202.68. The difference resulted in an
overpayment in the amount of $10,409.57. The Board will affirm the fact and amount of
overpayment in this case.
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and the implementing regulations, an overpayment must
be recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.6 Section 10.433 of the implementing regulations specifically provide that the
Office may consider waiving an overpayment if the individual to whom it was made was not at
fault in accepting or creating the overpayment.7 The regulations further provide that each
recipient of compensation benefits is responsible to ensure that payments he or she receives from
the Office are proper.8 An individual is with fault in the creation of the overpayment who:
3

Id. at § 8105(a).

4

Id. at § 8106(a).

5

Id. at § 8129(a).

6

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

7

20 C.F.R. § 10.433(a).

8

Id.

3

(1) made an incorrect statement as to a material fact which he or she knew or should have known
to be incorrect; or (2) failed to provide information which he or she knew or should have known
to be material; or (3) accepted a payment which he or she knew or should have known to be
incorrect.9 Whether or not the Office determines that an individual was at fault with respect to
the creation of an overpayment depends on the factual circumstances surrounding the claim.10
ANALYSIS -- ISSUE 2
The Board finds that the Office properly determined that appellant was not without fault
in the creation of the overpayment. The Office found that appellant was at fault in the creation
of the overpayment as he accepted payments that he knew or should have known to be incorrect.
On appeal, appellant contends that he never received notice of the Office’s wage-earning
capacity determination as he had been incarcerated and no longer lived at his former residence.
The Board notes that the Office sent the March 23, 2005 wage-earning capacity decision to
appellant’s address of record at that time. It is well established that, in the absence of evidence
to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received by that person in due course.11 Appellant contends that the
presumption of receipt should be rebutted by the fact that he had been incarcerated; but the
mailbox rule presumes his receipt of the wage-earning capacity determination at his mailing
address of record absent any evidence that he timely notified the Office of his incarceration or a
change of address.12 Appellant, as a recipient of compensation, has the general responsibility to
timely notify the Office of such conditions as may affect his receipt of benefits.13 The Office did
not abuse its discretion in finding that appellant received notice of the reduction in his wage-loss
benefits in 2005 and was no longer entitled to compensation at the rate for total disability.
Upon his release from incarceration, appellant requested on July 19, 2007 that his
benefits be restored and advised of a new home address. When it reinstated compensation,
wage-loss benefits were paid at the rate for total disability and not under the rate established by
the 2005 wage-earning capacity determination. The evidence of record establishes that appellant
received benefits in the amount of $11,612.25 from September 30, 2007 to July 5, 2008, when
the Office notified appellant of the error in his payments. It is well established that the fact that
the Office may have been negligent in issuing compensation payments for total disability does
not excuse a recipient’s acceptance of such payments if he knew or should have known they
9

Id. at § 10.433(a).

10
11

Id. at § 10.433(b).
See Jeffrey M. Sagrecy, 55 ECAB 724, 2004); James A. Gray, 54 ECAB 277 (2002).

12

On appeal, appellant noted that he was incarcerated from September 1, 2004 to July 18, 2007; however, there is
no evidence of record that he advised the Office of this fact at any time prior to the wage-earning capacity
determination.
13

See Larry D. Strickland, 48 ECAB 669 (1997) (the employee failed to timely notify the Office of his divorce)
and Madge H. Gurr, 39 ECAB 1124 (1988) (the employee failed to timely notify the Office as to the change of
status of a claimed dependent).

4

were incorrect.14 The Office found that appellant had an 87 percent wage-earning capacity and
should have only received wage-loss benefits in the amount of $1,202.68 during that period. The
difference resulted in an overpayment in the amount of $10,409.57. As appellant was on notice
of the prior reduction in his wage-loss benefits, the evidence of record establishes that he
accepted payments that he knew or should have known to be incorrect. Appellant was informed
of the reduction in his benefits based on his partial disability and should have known that he was
not entitled to wage loss paid at the rate for total disability. As he is not without fault in the
creation of the overpayment, appellant is not eligible for waiver of the overpayment.15
LEGAL PRECEDENT -- ISSUE 3
The amount of adjustment of continuing compensation to recover an overpayment lies
within the Office’s discretion. The analysis that determines the amount of adjustment is
substantially the same as that used to determine waiver.16 Section 10.441(a) of the regulations
provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual, and any other
relevant factors, so as to minimize any hardship.”17
ANALYSIS -- ISSUE 3
The evidence establishes that the Office sent the August 1, 2008 preliminary
overpayment notice to the address of record appellant provided on July 19, 2007.18 He was
advised that he could request a prerecoupment hearing or have the Office further consider the
questions of fault and waiver provided he made a request in 30 days. Failure to provide a reply
would result in a final decision based on the evidence of record. As discussed, under the
mailbox rule, appellant is presumed to have received the Office’s preliminary overpayment
notice. He failed to respond within the allotted time.
When a claimant is being paid compensation on the periodic rolls and does not respond to
the preliminary notice of overpayment, a final decision should be issued without conducting a
14

See Judith A. Cariddo, 55 ECAB 348 (2004); Diana L. Booth, 52 ECAB 370 (2001).

15

No waiver of an overpayment is possible if the claimant is at fault in creating the overpayment. L.J., 59 ECAB
__ (Docket No. 07-1844, issued December 11, 2007).
16

Howard R. Nahikian, 53 ECAB 406 (2002).

17

20 C.F.R. § 10.441(a).

18

On appeal, appellant stated that he was incarcerated again on June 4, 2008 for violation of his parole until
June 4, 2009.

5

conference and the debt recovered from such benefits as quickly as possible.19 Appellant did not
respond to the preliminary overpayment determination or provide any information concerning
his financial circumstances. The Board finds that the Office did not abuse its discretion in
following its regulations and directing recovery of $123.00 every four weeks from his continuing
compensation.
CONCLUSION
The Board finds that appellant received an overpayment in the amount of $10,409.57 for
which he was at fault in its creation. The Board also finds that the Office properly directed that
the overpayment be recovered by deducting $123.00 from his continuing compensation
payments.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 5, 2008 is affirmed.
Issued: June 11, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

19

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(c)(2) (October 2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF MANAGEMENT & BUDGET,
New York, NY, Employer
__________________________________________

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

Docket No. 18-0292
Issued: July 9, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 27, 2017 appellant filed a timely appeal from an October 2, 2017 merit
decision and a November 13, 2017 nonmerit 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 to consider the merits of this case.
ISSUES
The issues are: (1) whether appellant established permanent impairment of a scheduled
member or function of the body causally related to her accepted employment injuries, warranting
a schedule award; and (2) whether OWCP properly denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 14, 1990 appellant, then a 38-year-old typist, filed a traumatic injury claim (Form
CA-1) alleging that, on May 11, 1990, she felt a pulling sensation in her neck after pulling a box
of computer paper. She stopped work on May 11, 1990 and returned to modified-duty work for
five hours per day on September 17, 1990. OWCP accepted the claim for cervical and lumbar
sprains and thoracic or lumbar radiculitis or neuritis. By decision dated August 31, 1992, it issued
a loss of wage-earning capacity determination, adjusting her compensation based on her
employment as a typist working five hours per day.
On June 16, 2017 appellant filed a claim for a schedule award (Form CA-7).
By development letter dated August 7, 2017, OWCP informed appellant that no medical
evidence had been received in support of her schedule award claim. It requested that she submit
a medical report from her treating physician which addressed whether she had reached maximum
medical improvement (MMI) and whether her accepted conditions caused permanent impairment
pursuant to the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).2 Appellant was afforded 30 days to provide the
requested evidence.
In response to OWCP’s request, appellant submitted a July 31, 2017 report from Dr. Igor
Stiler, a treating Board-certified neurologist. Dr. Stiler provided lumbar and cervical range of
motion findings and upper extremity sensory findings. Physical examination findings noted 5/5
muscle testing for both upper extremities, and that deep tendon reflexes were 1-2/4. Dr. Stiler
opined that appellant was 75 percent disabled.
By decision dated October 2, 2017, OWCP denied appellant’s schedule award claim. It
determined that the medical evidence of record was insufficient to establish permanent impairment
of a scheduled member or function of the body as required under 5 U.S.C. § 8107.
On November 7, 2017 appellant requested reconsideration and submitted an October 31,
2017 report from Dr. Stiler. Dr. Stiler related appellant’s examination findings which were
unchanged from his prior report. He reviewed cervical and lumbar magnetic resonance imaging
scans (MRI) and found L4-5 anterolesthesis, L4-5 and L5-S1bulging disc, C4-5 moderate cervical
spondylosis. Dr. Stiler also reviewed electromyography (EMG) test dated October 17, 2017,
which showed acute right L5-S1 radiculopathy, chronic C5-6 radiculopathy, carpal tunnel
syndrome, and bilateral upper extremity sensory neuropathy. He concluded that appellant had
reached MMI and was 75 percent disabled.
By decision dated November 13, 2017, OWCP denied appellant’s request for
reconsideration of the merits of her schedule award claim. It determined that the evidence
submitted was repetitive and substantially similar to evidence previously submitted.

2

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

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
Neither FECA, nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.7 However, a schedule
award is permissible where the employment-related spinal condition affects the upper and/or lower
extremities.8 The sixth edition of the A.M.A., Guides provides a specific methodology for rating
spinal nerve extremity impairment.9 It was designed for situations where a particular jurisdiction,
such as FECA, mandated ratings for extremities and precluded ratings for the spine. The FECAapproved methodology is premised on evidence of radiculopathy affecting the upper and/or lower
extremities. The appropriate tables for rating spinal nerve extremity impairment are incorporated
into OWCP’s procedures.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award. As
previously noted, no schedule award is payable for permanent loss of use of the back, spine, or
body as a whole, but, appellant may receive a schedule award for permanent impairment to the
upper or lower extremities even though the cause of impairment originated in the spine.11

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims , Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
7

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see B.C., Docket No. 17-1617 (issued January 8, 2018); Jay K.
Tomokiyo, 51 ECAB 361, 367 (2000).
8
Supra note 6 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a(3)
(March 2017).
9

The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009).
10

See supra note 6 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.

11

J.S., Docket No. 13-2129 (issued June 6, 2014).

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In support of her claim appellant submitted a July 31, 2017 report from Dr. Stiler who
noted examination findings. Dr. Stiler found appellant was 75 percent disabled. Appellant’s report
is of limited probative value as Dr. Stiler did not address permanent impairment pursuant to the
A.M.A., Guides or The Guides Newsletter. The Board has held that schedule awards are to be
based on the A.M.A., Guides. An estimate of permanent impairment is irrelevant and not probative
where it is not based on the A.M.A., Guides.12
As appellant has not submitted medical evidence in conformance with the A.M.A., Guides,
supporting permanent impairment of a scheduled member or function of the body, causally related
to the accepted condition, she has failed to meet her burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of new exposure, or medical evidence showing a progression of an employment-related
condition resulting in impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
FECA provides in section 8128(a) that OWCP may review an award for or against payment
of compensation at any time on its own motion or on application by the claimant.13 Section
10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain review of the
merits of the claim by submitting in writing an application for reconsideration which sets forth
arguments or evidence and shows that OWCP erroneously applied or interpreted a specific point
of law; or advances a relevant legal argument not previously considered by OWCP; or includes
relevant and pertinent new evidence not previously considered by OWCP.14 Section 10.608 of
OWCP’s regulations provides that when a request for reconsideration is timely, but does not meet
at least one of these three requirements, OWCP will deny the application for review without
reopening the case for a review on the merits.15 Section 10.607(a) of OWCP’s regulations provides
that to be considered timely an application for reconsideration must be received by OWCP within
one year of the date of OWCP’s merit decision for which review is sought.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her November 7, 2017 request for reconsideration appellant did not make any argument
that OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by OWCP. Thus, appellant was not entitled to a review of the
12

C.B., Docket No. 15-503 (issued June 12, 2015); Shalanya Ellison, 56 ECAB 150, 154 (2004).

13

Supra note 1.

14

20 C.F.R. § 10.606(b)(3).

15

Id. at § 10.608.

16

Id. at § 10.607(a). Supra note 6 at Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).

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merits of her claim based on the first and second above-noted requirements under section
10.606(b)(3).17
However, appellant did submit a new medical report, dated October 31, 2017 from
Dr. Stiler. While the report from Dr. Stiler is new, he merely reiterated his prior opinion from his
earlier report. Appellant did not submit any new medical evidence containing a permanent
impairment evaluation.18 The report of Dr. Stiler is not relevant and pertinent new evidence related
to the issue of whether appellant was entitled to a schedule award. The Board has held that
evidence which repeats or duplicates evidence already of record does not constitute a basis for
reopening a case.19 Consequently, the evidence submitted by appellant on reconsideration does
not satisfy the third criterion, noted above, for reopening a claim for merit review.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3) and thus OWCP properly denied merit review.20
CONCLUSION
The Board finds that appellant has not established permanent impairment of a scheduled
member or function of the body, causally related to her accepted employment injuries, warranting
a schedule award. The Board further finds that OWCP properly denied appellant’s request for
reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).

17

See J.B., Docket No. 17-0628 (issued June 28, 2017).

18

G.T., Docket No. 18-0158 (issued May 11, 2018).

19

E.N., Docket No. 16-1000 (issued September 20, 2016); D.K., 59 ECAB 141 (2007).

20

See B.R., Docket No. 17-1213 (issued January 18, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 13 and October 2, 2017 are affirmed.
Issued: July 9, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

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

Docket No. 12-1064
Issued: December 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 10, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) February 2, 2012 nonmerit decision denying his request for
reconsideration on the grounds it was untimely filed and failed to establish clear evidence of
error.1 Since more than 180 days elapsed since the most recent merit decision of September 15,
2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits of the claim
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3.3

1

Appellant requested an oral argument. On April 30, 2012 the Clerk of the Board mailed a letter to appellant to
confirm a continuing desire for an oral argument in Washington, DC. No written confirmation was received; thus
the Board in its discretion has decided the appeal on the record.
2
3

5 U.S.C. §§ 8101-8193.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration on the merits on the grounds that his request was untimely filed and failed to
show clear evidence of error.
FACTUAL HISTORY
On March 12, 2010 appellant, a laborer/custodian, filed a traumatic injury claim stating
that, on February 25, 2010 while unloading birdcages, he strained his back. He stopped work
that day and sought treatment from Dr. Christopher Dodson, a chiropractor.
On March 31, 2010 appellant completed an OWCP questionnaire in which he further
described the work incident and medical treatment received. He indicated that he had a Family
Medical Leave Act (FMLA) “packet” for his back and received a service-connected disability
from the Veterans Administration. The medical evidence received included a nurse’s report, a
statement from an occupational health nurse administrator, an x-ray and notes from Dr. Dodson,
who diagnosed lumbosacral sprain/strain with segmental dysfunction and lumbago.
By decision dated April 29, 2010, OWCP denied the claim. It found that Dr. Dodson was
not a physician under FECA and that appellant had not submitted medical evidence establishing
his claim.
On May 19, 2010 appellant disagreed and requested a review of the written record. He
submitted an April 23, 2010 Form CA-17 from Dr. Dodson together with a list of dates he
attended physical therapy. By decision dated September 15, 2010, an OWCP hearing
representative affirmed the April 29, 2010 decision finding that appellant submitted insufficient
medical evidence to establish his claim. The hearing representative found that Dr. Dodson was
not a physician as defined under FECA and that the medical evidence did not include a history of
his prior back condition.
In a January 20, 2012 telephone call memorandum, appellant informed OWCP that he
sent additional information after the September 15, 2010 decision but did not submit a
reconsideration request. In a January 20, 2012 letter and January 23, 2010 telephone call,
OWCP advised appellant that the submission of additional evidence did not constitute a
reconsideration request. It advised him to put the request in writing and clearly state the grounds
upon which reconsideration was based.
In a January 24, 2012 letter, appellant requested reconsideration. He requested that the
one-year time limit be excused as he had sent in medical evidence after the September 15, 2010
decision but did not exercise his appeal rights. Appellant stated that he had sent in a letter on
November 16, 2011 inquiring about his case. The Board notes there is no record of a
November 16, 2011 letter from him.
Appellant submitted a December 4, 2008 certification of health care provider from
Dr. Thomas H. Benton, a Board-certified family practitioner, who diagnosed chronic low back
pain and stated that appellant would have to be off work intermittently from two to three days or

2

9 to 12 times yearly. Additional progress reports from Dr. Dodson dated February 26 to
September 13, 2011 were received together in a February 18, 2011 letter from the Department of
Veterans Affairs certifying that appellant had a 10 percent service-connected disability due to
chronic lumbar strain effective November 6, 2001.
In a September 12, 2011 report, Dr. Derek Lewis, a family practitioner, reviewed the
records of Dr. Jon H. Dodson, a general practitioner, and Dr. Christopher E. Dodson, pertaining
to appellant’s February 25, 2010 injury while lifting mail. Dr. Lewis opined that, from the
history of injury and medical review, appellant’s injury was consistent with his history.
By decision dated February 2, 2012, OWCP denied appellant’s reconsideration request
on the grounds that it was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.4 This discretionary authority, however, is subject to certain restrictions.
20 C.F.R. § 10.607(a) provides that a request for reconsideration must be filed within one year of
the date of OWCP’s decision for which review is sought.5 The Board has found that the
imposition of this one-year filing limitation does not constitute an abuse of discretion.6
OWCP may not deny a reconsideration request solely on the grounds that it was not
timely filed. When a claimant’s application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether it establishes clear evidence of error. If an
application demonstrates clear evidence of error, OWCP will reopen the case for merit review.7
To establish clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP8 is positive, precise and explicit and manifests on its face
that OWCP committed an error.9 The evidence must not only be of sufficient probative value to
create a conflict in medical opinion or establish a clear procedural error, but must also shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to establish clear evidence of error. It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has established clear evidence of error entails a limited

4

See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

5

D.O., Docket No. 08-1057 (issued June 23, 2009); W.G., Docket No. 08-2340 (issued June 22, 2009).

6

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of
error” is intended to represent a difficult standard).
8

See Dean D. Beets, 43 ECAB 1153 (1992).

9

See Leona N. Travis, 43 ECAB 227 (1991).

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review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.10
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
An application for reconsideration must be sent within one year of the date of OWCP’s
decision.11 The most recent merit decision in this claim is OWCP’s September 15, 2010
decision. Appellant’s request for reconsideration was dated January 24, 2012, more than one
year after September 15, 2010. The reconsideration request was not timely filed. Appellant
argued before OWCP and on appeal that the one-year time limit should be waived as he
submitted new evidence and had inquired about his case after the September 15, 2010 decision.
The record reflects that he did not request reconsideration at that time. Appellant was informed
in the September 15, 2010 decision and on January 20, 2012 that a reconsideration request must
be in writing and clearly state the grounds upon which reconsideration is being requested.12
Merely, submitting additional evidence does not constitute a reconsideration request.13
The Board finds that appellant has not established clear evidence of error on the part of
OWCP. The underlying issue in this case is whether he submitted sufficient medical evidence to
establish fact of injury. Appellant, however, did not submit any new medical evidence sufficient
to shift the weight of the evidence in his favor or establish that OWCP erred in denying his
claim.
In support of his reconsideration request, appellant submitted Dr. Lewis’ September 12,
2011 report. Dr. Lewis opined that, given the history of injury and his review of the medical
records, appellant’s injury was consistent with his history. Dr. Lewis’ opinion fails to offer a
diagnosis or provide any reasoning for his conclusion. Additionally, the Board notes that clear
evidence of error is intended to represent a difficult standard. Evidence such as a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development is not clear evidence of error and
would not require reopening the case.14 The Board finds that Dr. Lewis’ report is not the type of
positive, precise and explicit evidence which manifests on its face that OWCP committed an
error.15 The additional progress reports from Dr. Christopher Dodson do not constitute medical

10

See J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued
September 2, 2010).
11

20 C.F.R. § 10.607(a).

12

See id. at § 10.606(b)(1) (specifies that a reconsideration request must be submitted in writing).

13

Id.

14

See Joseph R. Santos, 57 ECAB 554 (2006); Federal (FECA) Procedure Manual, supra note 7.

15

See D.D., 58 ECAB 206 (2006).

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evidence under FECA.16 It is noted that an x-ray report showing specific findings and
demonstrating the presence of spinal subluxation has not been received in the record. As the
chiropractor did not diagnose a subluxation as demonstrated by x-ray, he is not considered a
physician under FECA and his report is of no probative medical value.17 The other evidence
received, the disability letter from the Department of Veterans Affairs and the December 4, 2008
certification of health care provider from Dr. Benton, is not relevant to the issue of whether
appellant sustained a work-related injury on February 25, 2010.
Thus, OWCP properly determined appellant’s untimely reconsideration request did not
demonstrate clear evidence of error in its September 15, 2010 decision.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 2, 2012 is affirmed.
Issued: December 17, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
16

OWCP’s regulations, at 20 C.F.R. § 10.5(bb), defines subluxation to mean an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. See
Mary A. Ceglia, 55 ECAB 626 (2004).
17

Isabelle Mitchell, 55 ECAB 623 (2004).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq. for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 21-1248 and 220171
Issued: March 11, 2022

Case Submitted on the Record

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

On August 17, 2021 appellant, through counsel, filed a timely appeal from a July 26, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx905. The Clerk of the Appellate Boards docketed the appeal as No. 21-1248. On
November 15, 2021 appellant, through counsel, filed a timely appeal from an October 5, 2021
merit decision of OWCP under OWCP File No. xxxxxx284. The Clerk of the Appellate Boards
docketed the appeal as No. 22-0171.
On July 20, 2020 appellant, then a 44-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 9, 2020 she experienced a left shoulder muscle strain when
attempting to stop the contents from falling out of a broken 50-pound package while in the
performance of duty. She stopped work on July 10, 2020. OWCP assigned that claim OWCP File
No. xxxxxx905.

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.

Appellant had previously filed an October 10, 2019 notice of recurrence (Form CA-2a)
alleging that on August 15, 2019 she sustained a recurrence of her previously accepted medical
conditions when she injured her left shoulder lifting a heavy package while in the performance of
duty.2 She asserted that, upon returning to work following her previously accepted February 22,
2010 employment injury, she continued to work with ongoing back and shoulder pain related to
her accepted medical conditions and that on August 15, 2019 she experienced a sharp shooting
pain in her left shoulder radiating into her neck when she picked up a heavy package. OWCP
subsequently converted appellant’s recurrence claim under OWCP File No. xxxxxx560 to a new
traumatic injury claim for a left shoulder condition assigned OWCP File No. xxxxxx284.
Appellant did not stop work.
By decisions dated December 3, 2019, March 18 and September 16, 2020, and October 5,
2021, OWCP denied appellant’s October 10, 2019 traumatic injury claim under OWCP File No.
xxxxxx284, finding that the evidence of record was insufficient to establish causal relationship
between her diagnosed left shoulder condition and the accepted August 15, 2019 employment
incident.
By decision dated January 12, 2021, OWCP denied appellant’s traumatic injury claim
under OWCP File No. xxxxxx905, finding that the medical evidence of record was insufficient to
establish that her left shoulder condition was causally related to the accepted July 9, 2020
employment incident. It found, therefore, that she had not met the requirements to establish an
injury or medical condition causally related to the accepted employment incident.
On January 26, 2021 appellant, through counsel, timely requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review with regard to the denial of
her claim under OWCP File No. xxxxxx905.
By decision dated July 26, 2021, OWCP’s hearing representative affirmed the January 12,
2021 decision, noting that appellant had another traumatic injury claim under OWCP File No.
xxxxxx284 and referenced a January 22, 2021 medical report from Dr. Sami E. Moufawad, a spine
and pain medicine and physical medicine and rehabilitation specialist, that was submitted in
support of that other claim.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. has filed separate traumatic injury
claims for left shoulder conditions under OWCP File Nos. xxxxxx905 and xxxxxx284. The Board
further notes that, in OWCP’s July 20, 2021 decision in OWCP File No. xxxxxx905, the hearing
representative referenced her claim under OWCP File No. xxxxxx284 . Therefore, for full and
fair adjudication, the cases must be remanded to OWCP to administratively combine OWCP File
2

Appellant’s recurrence claim was filed in relation to OWCP File No. xxxxxx560, which was a prior claim for a
February 22, 2020 traumatic injury accepted for a contusion of chest and cervical strain.

2

Nos. xxxxxx905 and xxxxxx284, along with any other of appellant’s relevant claim files, so that
it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s
traumatic injury claims.
Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.
IT IS HEREBY ORDERED THAT the July 26 and October 5, 2021 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: March 11, 2022
Washington, DC

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

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

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

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