United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, EGLIN
AIR FORCE BASE, FL, Employer
__________________________________________

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

Docket No. 08-676
Issued: October 3, 2008

Case Submitted on the Record

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

JURISDICTION
On January 9, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated June 29, 2007 addressing his permanent
impairment for schedule award purposes. He also appealed a November 16, 2007 nonmerit
decision of the Branch of Hearings and Review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than 50 percent impairment of his right
lower extremity; and (2) whether appellant is entitled to an oral hearing before the Branch of
Hearings and Review on this issue.
FACTUAL HISTORY
This is the third appeal in this case. On July 11, 1963 appellant, then a 48-year-old heavy
equipment operator, was injured in the performance of duty while in a forward observation
bunker which was struck by several nonexplosive rockets fired by an F-100. The Office

accepted his claim for almost complete avulsion of the nose, upper and lower lips. Appellant
also sustained a large laceration with a skin defect over the ulnar aspect of the lower third of his
right forearm with closed fracture, a compound fracture of the right tibia, a comminuted fracture
of the right patella with disruption of ligamentous support of the right knee and a partial
amputation extending into the interphalangeal joint of the left thumb.
The Office denied appellant’s request for a schedule award due to loss of hearing by
decision dated April 1, 1998. Appellant appealed this decision to the Board. By decision dated
November 1, 2000,1 the Board remanded the case to the Office for additional development of the
medical evidence to determine whether he had sustained an employment-related bilateral hearing
loss. On June 19, 2001 the Office granted appellant a schedule award for 30 percent bilateral
loss of hearing.
The Office granted appellant schedule awards for 42 percent impairment of his right leg
and 18 percent impairment of his left arm on January 12, 2006. By decision dated February 13,
2006, appellant received a schedule award for facial disfigurement in the amount of $3,500.00.
Appellant requested review by the Board.
In its January 10, 2007 decision,2 the Board affirmed the Office’s finding that appellant
had 18 percent impairment of his left arm and was entitled to a schedule award of $3,500.00 for
facial disfigurement. The Board remanded the claim for the Office to develop the medical
evidence addressing the permanent impairment of his right lower extremity as well as the date of
maximum medical improvement. The Board found that the district medical adviser had not
considered the most recent medical report in the record addressing appellant’s right lower
extremity, a report dated October 28, 1996 from Dr. William R. Marshall, a Board-certified
orthopedic surgeon, who examined appellant and noted his history of injury. Dr. Marshall stated
that appellant sustained an open fracture involving his right proximal tibia and knee and had
undergone multiple operative procedures. He noted that appellant developed osteomyelitis and
his right knee was draining in 1995. Dr. Marshall stated that appellant had an extensor lag of
nearly 30 degrees and flexion of 70 degrees. He found medial laxity in the right knee and
atrophy of appellant’s right thigh. Dr. Marshall examined x-rays which demonstrated extensive
end-stage degenerative arthritis with a healed comminuted proximal tibial shaft fracture with
sclerotic markings and osteopenia. He diagnosed post-traumatic degenerative arthritis, with a
history of osteomyelitis of the proximal tibia and disruption of the extensor mechanism as well
as atherosclerotic calcific peripheral vascular disease. Dr. Marshall cautioned appellant
regarding further surgical procedures noting that appellant was at great risk for potential skin
slough, vascular compromise, recurrent infection and possible loss of limb. Finally, the Board
concluded that as appellant’s injury occurred before July 4, 1966 he was not entitled to an oral
hearing on these issues. The facts and the circumstances of the case as set out in the Board’s
prior decisions are adopted herein by reference.
Following the Board’s January 10, 2007 decision, the Office requested that the district
medical adviser reviewed Dr. Marshall’s report and explained and determined the permanent
1

Docket No. 99-6 (issued November 1, 2000).

2

Docket No. 06-1018 (issued January 10, 2007).

2

impairment of appellant’s right lower extremity. The district medical adviser, Dr. James W.
Dyer, a Board-certified orthopedic surgeon, responded on April 24, 2007 and stated that upon
reviewing Dr. Marshall’s report and assessment of appellant’s x-rays as demonstrating extensive
end-stage degenerative arthritis that an impairment rating for arthritis would be most appropriate3
and result in an additional 8 percent impairment of the right lower extremity beyond the 42
percent already received due to a cartilage interval of zero millimeters. In a separate report dated
May 1, 2007, Dr. Dyer stated that due to appellant’s arthritic processes the date of Dr. Marshall’s
October 28, 1996 examination was the appropriate date of maximum medical improvement.
By decision dated June 29, 2007, the Office granted appellant a schedule award for an
additional 8 percent impairment of his right lower extremity for a total of 50 percent impairment
to that scheduled member. It listed the date of maximum medical improvement as
October 28, 1996.4
Appellant requested a review of the written record by the Branch of Hearings and Review
on July 3, 2007. By decision dated November 16, 2007, the Branch of Hearings and Review
denied appellant’s request for a review of the written record on the grounds that his injury
occurred on July 11, 2003 and he was not entitled to review by the Branch of Hearings and
Review as a matter of right. The Branch of Hearings and Review further considered appellant’s
request and found that his case could be equally well addressed through the reconsideration
process.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulation6 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.7 Effective February 1, 2001, the Office
adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all awards issued
after that date.8
3

A.M.A., Guides 544, Table 17-31.

4

Following the Office’s June 29, 2007 decision, appellant submitted additional new evidence. As the Office did
not consider this evidence in reaching a final decision, the Board may not review the evidence for the first time on
appeal. See 20 C.F.R. § 501.2(c).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).

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ANALYSIS -- ISSUE 1
The Board remanded appellant’s claim for the district medical adviser, Dr. Dyer, a
Board-certified orthopedic surgeon, to consider the findings of Dr. Marshall, a Board-certified
orthopedic surgeon, in determining appellant’s permanent impairment for schedule award
purposes. Dr. Marshall reported findings of loss of range of motion and extensive end-stage
degenerative arthritis based on x-rays in appellant’s right lower extremity. Dr. Dyer explicitly
reviewed this report on April 24, 2007 and found that appellant was entitled to an additional
impairment rating of eight percent when his impairment rating was based on arthritic changes
rather than loss of range of motion. He cited to the appropriate section of the A.M.A., Guides9
and found that based on Dr. Marshall’s report that appellant had a no cartilage interval in the
right knee, appellant was entitled to 50 percent impairment or an additional 8 percent impairment
of the lower extremity beyond that already awarded. As appellant’s various impairment ratings
cannot be combined, he is entitled to only the greater of the two evaluation methods.10 Dr. Dyer
properly found that appellant would be entitled to an additional eight percent impairment based
on arthritis rather than loss of range of motion.11 There is no medical evidence in the record
establishing that appellant has more than 50 percent impairment of his right lower extremity for
which he has received a schedule award.
LEGAL PRECEDENT -- ISSUE 2
There is no right to a hearing under the Act except as specifically provided by Congress.
Thus it is well established that for an injury occurring prior to the effective date of the 1966
amendments to the Act, a claimant is not entitled to a hearing or a review of the written record by
the Branch of Hearings and Review, as a matter of right.12
ANALYSIS -- ISSUE 2
Appellant requested a review of the written record on July 3, 2007. By decision dated
November 16, 2007, Branch of Hearings and Review denied appellant’s request on the grounds
that his injury occurred prior to the hearing provisions of the Act on July 4, 1966. The Branch of
Hearings and Review also reviewed appellant’s claim and determined that his claim could be
addressed through the reconsideration process. As appellant was not entitled to an oral hearing
or a review of the written record as a matter of right, the Branch of Hearings and Review
properly denied his request.

9

A.M.A., Guides 544, Table 17-31.

10

Juantia L. Spencer, 56 ECAB 611, 615 (2005).

11

A.M.A., Guides 526, Table 17-2. This table indicates that impairment ratings for loss of range of motion and
arthritis cannot be combined.
12

Rudolf Bermann, 26 ECAB 354 (1975).

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CONCLUSION
The Board finds that appellant has no more than 50 percent impairment of his right lower
extremity for which he has received a schedule award. The Board further finds that the Branch
of Hearings and Review properly denied appellant’s request for a review of the written record.
ORDER
IT IS HEREBY ORDERED THAT the November 16 and June 29, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 3, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
DEPARTMENT OF THE NAVY, NORTH
ISLAND NAVAL AIR REWORK FACILITY,
San Diego, CA, Employer
__________________________________________

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Appearances:
James J. Cunningham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0544
Issued: July 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 21, 2015 appellant, through counsel, filed a timely appeal from a July 25,
2014 overpayment 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $2,074.54 for the period November 28, 2012
through September 21, 2013; (2) whether appellant was at fault in the creation of the
overpayment and not entitled to waiver of recovery; and (3) whether OWCP properly determined
that the overpayment should be recovered by deducting $100.00 every 28 days from continuing
compensation payments.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This matter has previously been before the Board. Pursuant to the first appeal, the Board
reversed OWCP’s October 10, 1995 decision rescinding acceptance of a recurrence of disability.2
Pursuant to the second appeal, by decision and order issued May 9, 2013,3 the Board affirmed
OWCP’s August 30, 2012 decision denying modification of a wage-earning capacity
determination.4 The law and facts of the case as set forth in the Board’s prior decision and order
are incorporated by reference.
Appellant sustained a lumbar strain on June 21, 1979. OWCP later expanded the claim to
include an L3-4 disc herniation. Appellant retired on October 30, 1987. OWCP issued
compensation benefits on the periodic rolls beginning on November 1, 1989 at the 75 percent,
augmented rate as appellant was married. The record reflects that appellant had received
compensation by direct deposit beginning in 2005.
Appellant completed annual affidavits of earnings and employment (Form EN1032) as
requested by OWCP. On November 22, 2012 he completed a Form EN1032 form, in which he
answered “yes” to questions asking if he was married and if his spouse lived with him.
Appellant’s wife died on November 27, 2012. On December 15, 2012 OWCP issued a
compensation payment for $1,523.04 for the period November 18 to December 15, 2012.
Appellant did not advise OWCP of his wife’s demise until September 23, 2013.
On September 26, 2013 OWCP compiled payment logs and provided calculations
showing that from November 28, 2012 to September 21, 2013, appellant received $18,919.14 in
compensation at the augmented, 75 percent rate, but was entitled to only $16,864.40, a difference
of $2,054.74.5 It noted that the $2,074.54 amount constituted an overpayment of compensation.
By notice dated September 27, 2013, OWCP advised appellant of its preliminary
determination that an overpayment of compensation of $2,054.74 was created in his case because
he received compensation at the augmented rate for the period November 28, 2012 through
September 21, 2013 when he had no eligible dependents. It found that he was at fault in creating
the overpayment as he accepted a payment that he knew or should have known to be incorrect.
OWCP afforded appellant 30 days to submit information regarding his income, assets, and
expenses, and to request a prerecoupment hearing. It provided him an overpayment recovery
questionnaire (Form OWCP-20).

2

49 ECAB 375 (1998); Order Granting Petition for Correction and Reaffirming Prior Decision, 50 ECAB
229 (1999) (March 4, 1998).
3

Docket No. 12-1961 (issued May 9, 2013).

4

By decision issued October 8, 2010, OWCP reduced appellant’s compensation effective October 24, 2010,
based on his projected ability to earn wages as a small products assembler. It affirmed the determination on
August 30, 2012. The Board affirmed OWCP’s August 3, 2012 decision by decision and order issued May 9, 2013.
5

The overpayment calculation was incorrect. OWCP noted $2,074.54; but the math reflects an overpayment of
only $2,054.74.

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In response, appellant submitted an October 3, 2013 statement asserting that he had
advised OWCP in early December 2012 that his wife had died. He requested a prerecoupment
hearing. Appellant also requested waiver of the overpayment, asserting that he was without fault
in its creation. He submitted his wife’s death certificate, confirming that she died on
November 27, 2012.
OWCP conducted a telephonic prerecoupment hearing on May 7, 2014. At the hearing,
counsel acknowledged the period, fact, and amount of the overpayment, but contended that
appellant was not at fault. He argued that appellant was severely debilitated due to diabetes and
the sequelae of his accepted lumbar injuries. Counsel asserted that appellant did not deliberately
deceive OWCP. Appellant testified that although he called OWCP to report his wife’s death in
December 2012, he did not submit the death certificate or other paperwork until September 2013,
when a relative reviewed his insurance documents and realized he was paying for a family plan
although he no longer had dependents. Counsel asserted that appellant had monthly income of
$1,682.00, and over $4,000.00 in expenses. Appellant paid the difference from savings.
Counsel contended that under these circumstances, recovery of the overpayment would be
against equity and good conscience.
Following the hearing, appellant submitted documentation of his monthly expenses,
including a $1,345.19 mortgage payment, $105.00 for auto insurance, and $82.35 for life
insurance. He supplied utility bills for water, telephone, gas, and electricity which did not
clearly specify an average monthly payment. Recent payments for these utilities totaled
approximately $448.00 a month. Appellant also provided credit card bills with recent payments
totaling approximately $395.00 a month. Bank statements showed $2,992.00 in a savings
account and $406.00 in a checking account. Appellant also submitted a federal tax payment
receipt.
By decision dated July 25, 2014, an OWCP hearing representative found an overpayment
of $2,054.74 for the period November 28, 2012 to September 21, 2013 as appellant received
compensation at the augmented rate when he had no eligible dependents. OWCP found
appellant at fault in creation of the overpayment, as he was familiar with EN1032 forms and
knew or should have known he was no longer entitled to receive compensation at the 75 percent
rate after his wife died. Also, appellant had contacted OWCP on several occasions in the past
regarding changes in his compensation benefits, evincing a high degree of knowledge and care.
OWCP directed recovery of the overpayment by deducting $100.00 from his continuing
compensation payments. It found that appellant submitted insufficient financial information to
determine a repayment schedule. The hearing representative noted that the documents appellant
submitted were incomplete or confusing as they did not distinguish between monthly payments,
minimum payments, and the balances due. Also, the federal tax payment did not indicate if there
was an additional debt due and owing.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of

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duty.6 If the disability is total, the United States shall pay the employee during the period of total
disability the basic compensation rate of 66 2/3 of his or her monthly pay. A disabled employee
is entitled to an augmented compensation rate of 75 percent if he or she has one or more
dependents.7
Under section 8110 of FECA, an employee is entitled to compensation at the augmented
rate of 3/4 of his or her weekly pay if he or she has one or more dependents.8 A dependent
includes a wife if: (a) she is a member of the same household as the employee; (b) she is
receiving regular contributions from the employee for his support; or (c) the employee has been
ordered by a court to contribute to her support.9
ANALYSIS -- ISSUE 1
Appellant initially received compensation payments at the augmented rate of 75 percent
as he was married, and lived in the same household with his wife. His wife died on
November 27, 2012. However, appellant continued to receive compensation at the augmented
rate after her death, when he had no eligible dependents.
The record indicates that appellant was erroneously paid compensation based on the
augmented rate of 75 percent for a person with a dependent for the period November 28, 2012
through September 21, 2013. Appellant was paid $18,919.14 in compensation at the augmented,
75 percent rate, but should have received only $16,864.40. OWCP properly determined that the
difference of $2,054.74 is the amount of the overpayment.10 The Board finds that OWCP
properly determined the fact and amount of the overpayment in this case.
On appeal, counsel does not contest the fact or amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.11

6

5 U.S.C. § 8102(a).

7

Id. at § 8105(a).

8

Id. at § 8110(b).

9

Id. at § 8110(a)(2).

10

The Board notes the amount of overpayment is incorrect and affirms only $2054.74, the difference between
$18,919.14 and $16,864.40.
11

C.V., Docket No. 13-2108 (issued June 17, 2014); W.M., Docket No. 11-2000 (issued May 21, 2012).

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In determining whether an individual is not without fault or alternatively, with fault,
section 10.433(a) of OWCP’s regulations provide in relevant part:
“An individual is with fault in the creation of an overpayment who -Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
Failed to provide information which he or she knew or should have known
to be material; or
Accepted a payment which he or she knew or should have known to be
incorrect.”12
The regulations further provide that each recipient of compensation benefits is
responsible to ensure that payments he or she receives from OWCP are proper.13 Whether or not
OWCP determines that an individual was at fault with respect to the creation of the overpayment
depends on the circumstances surrounding the overpayment.14
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in the creation of the overpayment because he
accepted a payment which he knew or should have known to be incorrect. In order for it to
establish that he was at fault in creating the overpayment of compensation, it must show that, at
the time he received the compensation in question, he knew or should have known that the
payment was incorrect.15 With respect to whether an individual is with fault, section 10.433(b)
of OWCP’s regulations provide that whether or not OWCP determines that an individual was
with fault with respect to the creation of the overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the complexity of the
circumstances and the individual’s capacity to realize that he or she is being overpaid.16
Appellant’s receipt of the December 15, 2012 direct deposit in the amount of $ 1,523.04
covered a portion of the overpayment from November 28 to December 15, 2012.17 The Board
has found a claimant to be at fault in cases where he or she is receiving compensation checks
through direct deposit which involve a series of payments over several months with clear
12

5 U.S.C. § 8129(b).

13

20 C.F.R. § 10.433(a).

14

Id.

15

Franklin L. Bryan, 56 ECAB 310 (2005).

16

20 C.F.R. § 10.433(b); F.A., Docket No. 08-1519 (issued December 18, 2008); see also Otha J. Brown,
56 ECAB 228 (2004) (each recipient of compensation benefits is responsible for taking all reasonable measure to
ensure that payments he or she receives from OWCP are proper).
17

The deposit covered the period November 28 to December 15, 2012.

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knowledge that the payments were incorrect.18 It is not appropriate, however, to make a finding
that a claimant has accepted an overpayment by direct deposit until such time as a reasonable
person would have been aware that this overpayment had occurred. This awareness could be
established either through documentation such as a bank statement or notification from OWCP
or where a reasonable period of time has passed during which a claimant could have reviewed
independent confirmation of the incorrect payment.19 Appellant had no reason to suspect at the
time the $1,523.04 payment was deposited into his checking account on December 15, 2012 that
OWCP had issued an incorrect payment, given that this was the first incorrect payment made.20
Because the funds were deposited directly into his bank account, he was not in a position to
immediately decline acceptance of the amount paid by OWCP. The Board finds that appellant
was not at fault in either creating or accepting the applicable portion of the overpayment for the
period November 28 to December 15, 2012.21 A finding of no fault does not mean, however,
that the claimant may keep the money, only that OWCP must consider eligibility for waiver for
this period and the case must be remanded to determine whether appellant is entitled to waiver
for this period. After such further development as OWCP deems necessary, it should issue an
appropriate decision on the issue of whether the overpayment should be waived for the relevant
portion of the December 15, 2012 direct deposit.
After appellant’s receipt of the first direct deposit, for which fault may not be imputed to
him, it could be presumed that he knew the amount of compensation contained in subsequent
direct deposit checks exceeded the amount to which he was entitled. He knew or should have
known that he was receiving augmented compensation because of his wife.22 Appellant
consistently completed numerous annual EN1032 forms, which provided him with the definition
of a dependent and explained that he was not entitled to receive compensation at the augmented
rate if he did not have dependents. By signing the EN1032 forms, he had notice that he was not
entitled to compensation at the augmented rate if he did not have a dependent. Appellant did not
claim dependents on EN1032 forms in the years following his wife’s death. However, as he
certified each of the EN1032 forms, he knew or should have known that the compensation he
received at the augmented rate after the December 15, 2012 direct deposit was incorrect. Even if
an overpayment resulted from negligence by OWCP, this does not excuse a claimant from
accepting payments that the claimant knew or should have been expected to know was
incorrect.23 Therefore, the Board finds that appellant was with fault for the direct deposits
covering the period December 16, 2012 through September 21, 2013 as he should have known
that he accepted a payment for an incorrect amount.

18

See Karen K. Dixon, 56 ECAB 145 (2004).

19

See K.H., Docket No. 06-191 (issued October 30, 2006).

20

See Tammy Craven, 57 ECAB 689 (2006).

21

Id.

22

A.H., Docket No. 11-714 (issued October 5, 2011).

23

Danny E. Haley, 56 ECAB 393 (2005).

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ISSUE 3
As the amount of the overpayment cannot yet be determined, the repayment issue will not
be considered on the present appeal. On remand, appellant will have an opportunity to submit
and have OWCP consider relevant financial evidence on this issue. Following this and all other
development deemed necessary, OWCP shall issue an appropriate final decision in the case.
On appeal, counsel asserts appellant should have been given a second hearing to “develop
the record to give [appellant] the opportunity to fully explain and explore the true nature of his
income and expenses.” As appellant will have the opportunity on remand of the case to submit
financial information regarding his income, assets, and expenses, counsel’s argument is moot.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,054.74 for the period November 28, 2012 through
September 21, 2013. The Board further finds that he was at fault in the creation of the
overpayment and therefore not entitled to waiver of recovery, with the exception of the
December 15, 2012 payment. The case will be remanded for additional development on this
issue. As the case is not in posture regarding waiver of a portion of the overpayment, the Board
also finds that the case is not in posture regarding the rate of recovery.

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ORDER
IT IS HEREBY ORDERED THAT the July 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed in part regarding the fact and amount of
overpayment, and the finding of fault for the period December 16, 2012 to September 21, 2013.
The July 25, 2014 decision is set aside in part regarding the finding of fault from November 28
to December 15, 2012, and the rate of recovery. The case is remanded to OWCP for additional
development consistent with this decision and order.
Issued: July 16, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LYONS VA MEDICAL CENTER, Lyons, NJ,
Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0823
Issued: February 25, 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 March 3, 2020 appellant, through counsel, filed a timely appeal from an October 21,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards docketed the appeal as Docket No. 20-0823.
On March 28, 2018 appellant, then a 34-year-old human resources specialist, filed a
traumatic injury claim (Form CA-1) alleging that on March 23, 2018 he injured his lower back and
left wrist/forearm when an elevator he was riding abruptly stopped or dropped, causing him to be

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.

tossed into the air and then land on his knees and palms of his hands while in the performance of
duty.2 He did not stop work.
By decision dated May 9, 2018, OWCP denied appellant’s traumatic injury claim, finding
that the medical evidence of record was insufficient to establish that his diagnosed medical
condition was causally related to the accepted March 23, 2018 employment incident.
On May 16, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. Following a preliminary review, by
decision dated August 2, 2018, the hearing representative remanded the case to OWCP for further
development of the medical evidence.
By decision dated April 9, 2019, OWCP again denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish that his diagnosed medical
condition was causally related to the accepted March 23, 2018 employment incident. On April 15,
2019 appellant, through counsel, requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
By decision dated October 21, 2019, the hearing representative affirmed OWCP’s April 9,
2019 decision. She referenced OWCP File No. xxxxxx692 in the decision.
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. 3 For
example, if a new injury claim is reported for an employee who previously filed an injury claim
for a similar condition of the same part of the body, doubling is required. 4 Herein, appellant has a
prior claim accepted under OWCP File No. xxxxxx692 for a low back condition, which is the same
region of the body at issue in the claim presently before the Board.
Therefore, for a full and fair adjudication, the case must be remanded to OWCP to
administratively combine the current case record, OWCP File No. xxxxxx836, with OWCP File
No. xxxxxx692. Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision. Accordingly,

2

OWCP assigned the present claim OWCP File No. xxxxxx836. Appellant has a previously-accepted traumatic
injury claim for a February 2, 2015 low back strain under OWCP File No. xxxxxx692. Appellant’s claims have not
been administratively combined.
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; H.B., Docket No 20-1298 (issued November 22, 2021); S.G., Docket No. 21-0396 (issued September 27,
2021); R.L., Docket No. 20-0901 (issued July 27, 2021); M.E., Docket No. 21-0094 (issued May 27, 2021); L.M.,
Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

2

IT IS HEREBY ORDERED THAT the October 21, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: February 25, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF AGRICULTURE,
AGRICULTURAL MARKETING SERVICE,
Manteca, CA, Employer
__________________________________________

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

Docket No. 19-1838
Issued: May 1, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 3, 2019 appellant filed a timely appeal from a July 30, 2019 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.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $52,343.04, for which she was not at fault, as she
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the July 30, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

concurrently received Social Security Administration (SSA) age-related retirement benefits while
receiving FECA wage-loss compensation benefits for the period January 1, 2006 through
March 30, 2019; (2) whether OWCP properly denied waiver of recovery of the overpayment; and
(3) whether OWCP properly required recovery of the overpayment by deducting $218.80 from
appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On January 5, 1993 appellant, then a 49-year-old commodity grader, filed a traumatic
injury claim (Form CA-1) alleging that on January 4, 1993 she injured her neck, shoulders, and
right arm when lifting cases of eggs while in the performance of duty. OWCP accepted the claim
for cervical strain and bilateral shoulder strain. Appellant stopped work on January 5, 1993. She
did not return to work and resigned from employment on January 31, 2006. The record reflects
that OWCP paid appellant wage-loss compensation on the periodic rolls based upon her loss of
wage-earning capacity as of June 16, 2002. By decision dated December 4, 2007, it granted her a
schedule award which ran from November 25, 2007 through February 10, 2010.3 OWCP then
resumed paying wage-loss compensation on the periodic rolls as of March 14, 2010.
On January 28, 2019 OWCP provided SSA with a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form. On March 7, 2019 SSA submitted the completed
form, which showed SSA benefit rates with a FERS offset and without a FERS offset from January
2006 through December 2018. Beginning January 2006, the SSA rate with FERS was $934.00
and without FERS was $648.10. Beginning December 2006, the SSA rate with FERS was $964.80
and without FERS was $669.50. Beginning December 2007, the SSA rate with FERS was $987.00
and without FERS was $684.80. Beginning December 2008 through November 2011, the SSA
rate with FERS was $1,044.20 and without FERS was $724.50. Beginning December 2011, the
SSA rate with FERS was $1,081.70 and without FERS was $750.60. Beginning December 2012,
the SSA rate with FERS was $1,100.00 and without FERS was $763.30. Beginning December
2013, the SSA rate with FERS was $1,116.50 and without FERS was $774.80. Beginning
December 2014 through November 2016, the SSA rate with FERS was $1,135.50 and without
FERS was $787.90. Beginning December 2016, the SSA rate with FERS was $1,138.80 and
without FERS was $790.20. Beginning December 2017, the SSA rate with FERS was $1,161.60
and without FERS was $806.00. Beginning December 2018, the SSA rate with FERS was
$1,194.00 and without FERS was $828.50.
A FERS offset calculation worksheet dated March 28, 2019 noted each period of
overpayment and provided calculations, which resulted in a total overpayment of $52,343.04
during the period January 1, 2006 through March 30, 2019.
By letter dated April 1, 2019, OWCP informed appellant that it would begin deducting the
portion of SSA benefits attributable to her federal service from her periodic disability
compensation beginning March 31, 2019.

3
The December 4, 2007 schedule award was for 20 percent permanent impairment of the right upper extremity and
17 percent permanent impairment of the left upper extremity.

2

In a preliminary notice dated April 3, 2019, OWCP informed appellant that she had
received an overpayment of compensation in the amount of $52,343.04 because the SSA/FERS
offset was not applied to FECA benefits for the period January 1, 2006 through March 30, 2019.
It determined that she was without fault in the creation of the overpayment, because she was not
aware, nor could she reasonably have been expected to know, that it had paid her compensation
incorrectly. OWCP requested that appellant submit a completed overpayment recovery
questionnaire (Form OWCP-20) to determine a fair repayment method, and advised her that she
could request a waiver of recovery of the overpayment. It further requested that she provide
supporting financial documentation, including copies of income tax returns, bank account
statements, bills, pay slips, and any other records to support income and expenses. OWCP advised
appellant that it would deny waiver if she failed to furnish the requested financial information
within 30 days. It further 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.
Appellant completed the Form OWCP-20 overpayment recovery questionnaire on
April 16, 2019, and submitted supporting financial documentation. She requested that OWCP
make a decision regarding possible waiver of recovery of the overpayment based on the written
evidence.
By decision dated July 30, 2019, OWCP determined that appellant had received an
overpayment of compensation in the amount of $52,343.04 because the SSA/FERS offset was not
applied to payments for the period January 1, 2006 through March 30, 2019. It further found that
she was without fault in the creation of the overpayment, but denied waiver of recovery of the
overpayment. OWCP explained that, while appellant had provided some financial documentation
for her expenses, she did not provide financial documentation for others, and that the claimed
expenses not supported by financial documentation would not be considered in calculation of her
monthly expenses for the purpose of waiver. It noted that as the period necessary to repay the debt
would exceed her life expectancy, the principal would be compromised by $25,743.04 due to
hardship with regard to her life expectancy, while an additional $5,638.96 would be compromised,
for a total of $31,382.00 compromised. The remaining debt amount to be repaid was $26,600.00,
which would be repaid by deducting $218.80 from appellant’s continuing compensation every 28
days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.4 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States.5
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA benefits that are attributable to federal service of the
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

3

employee.6 FECA Bulletin No. 97-09 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.7
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision.
By decision dated July 30, 2019, OWCP determined that appellant had received an
overpayment of compensation in the amount of $52,343.04 because the SSA/FERS offset was not
applied to payments for the period January 1, 2006 through March 30, 2019. However, by
decision dated December 4, 2007, OWCP had granted appellant a schedule award which ran from
November 25, 2007 through February 10, 2010. Furthermore, the record indicates that OWCP did
not resume paying wage-loss compensation on the periodic rolls until March 14, 2010.
The Board has held in overpayment cases that it is essential that OWCP provide the
recipient of compensation with a clear statement showing how the overpayment was calculated.8
With respect to the fact and amount of the overpayment, the Board finds that OWCP has not
provided adequate findings of fact which would allow appellant to understand the precise defect
of her claim and the kind of evidence which would tend to overcome it.9 OWCP has not adequately
explained how the fact and amount of the overpayment was determined in light of appellant’s
receipt of schedule award compensation for a portion of the period of the overpayment. Its
regulations provide that retirement benefits paid by the Office of Personnel Management or SSA
can be paid concurrently with schedule award compensation under FECA without a deduction
from FECA benefits.10 The record also reflects that at the expiration of appellant’s schedule award,
OWCP did not resume paying appellant wage-loss compensation on the periodic rolls until
March 14, 2010. The Board therefore finds that the July 30, 2019 decision must be set aside and
the case remanded for further consideration followed by a de novo decision.11
CONCLUSION
The Board finds that the case is not in posture for decision.

6

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

7

FECA Bulletin No. 97-09 (February 3, 1997).

8

See Teresa A. Ripley, 56 ECAB 528 (2005).

9

20 C.F.R. § 10.126; H.H., Docket No. 18-0356 (issued October 24, 2018); P.G., Docket No. 14-0430 (issued
August 1, 2014).
10

Supra note 7; see also J.M., Docket No. 18-1505 (issued June 21, 2019); K.H., Docket No. 18-0171 (issued
August 2, 2018); A.S., Docket No. 17-1459 (issued December 22, 2017).
11

As the first issue regarding fact and amount of overpayment is set aside, issues 2 and 3 are moot.

4

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2019 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further proceedings consistent
with this decision.
Issued: May 1, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 15-1387
Issued: November 20, 2015

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 June 8, 2015 appellant filed a timely appeal from a February 5, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from October 10, 2014, the date of the last merit decision at issue, pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied reconsideration of the merits of appellant’s
claim pursuant to 5 U.S.C. § 8128(a).

1

Appellant initially requested an oral argument before the Board. By order issued October 7, 2015 under Docket
No. 15-1387, the Board denied appellant’s request for oral argument. The case therefore proceeds to a decision
based on the record.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 26, 2014 appellant, then a 57-year-old maintenance operations supervisor,
filed a traumatic injury claim (Form CA-1) alleging that on July 22, 2014 he sprained his left
wrist at work when he slipped in a stairwell on a peanut shell and used his left hand to break his
fall. The employing establishment noted that he did not report the injury until August 20, 2014.
Appellant did not stop work.
Appellant submitted his July 22, 2014 e-mail to his supervisor, describing how he injured
his left wrist earlier that day. He stated that, while climbing stairs, his right foot slid out from
under him, causing him to extend his left arm outward to catch his fall.
In an August 27, 2014 letter, the employing establishment controverted the claim,
contending that appellant submitted medical bills for June 23 and July 2, 2014 outpatient hospital
treatment, although he alleged a July 22, 2014 injury.
In a September 5, 2014 letter, OWCP advised appellant of the additional evidence needed
to establish his claim, including factual evidence corroborating the July 22, 2014 incident, and a
report from his attending physician explaining how and why the incident would cause the
claimed injury. It afforded him 30 days to submit such evidence.
In response, appellant submitted two photographs of the stairway where the claimed
incident occurred, and an August 7, 2014 accident interview form in which he reiterated his
account of slipping on the peanut shell on July 22, 2014. He also provided July 22, 2014
emergency department discharge instructions for a wrist sprain and back strain. These forms
were not signed or reviewed by a physician.
By decision dated October 10, 2014, OWCP denied appellant’s claim as causal
relationship was not established. It accepted that the July 22, 2014 incident occurred at the time,
place, and in the manner alleged. However, appellant did not submit medical evidence
establishing that the accepted incident caused an injury.
In an October 6, 2014 letter, received by OWCP on October 24, 2014, appellant
responded to its September 5, 2014 letter. He asserted that on July 22, 2014 he injured his left
wrist when he attempted to break his fall down steps at work. Appellant asserted that he reported
the injury to his supervisor immediately, who insisted that he be evaluated at a hospital. He
contended that he delayed filing the claim only because he did not receive a bill from the hospital
until August 28, 2014. Appellant explained that he accidentally submitted June 23 and July 2,
2014 hospital bills pertaining to a family member with the same name.
Appellant requested reconsideration by January 19, 2015 appeal request form received by
OWCP on January 26, 2015. He did not submit additional evidence or argument.
By decision dated February 5, 2015, OWCP denied reconsideration, finding that his
request form and October 7, 2014 statement did not present new, relevant evidence or argument
regarding the critical, medical issue of causal relationship.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.6 He or she need only
submit relevant, pertinent evidence not previously considered by OWCP.7 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.8
ANALYSIS
Appellant claimed that he sprained his left wrist at work on July 22, 2014 while
attempting to break a fall. OWCP denied the claim by an October 10, 2014 decision, finding that
the July 22, 2014 incident occurred as alleged, but that appellant did not submit medical
evidence establishing causal relationship.
Following the October 10, 2014 decision, appellant submitted his October 6, 2014 letter,
received by OWCP on October 24, 2014. He contended that he reported the July 22, 2014
incident to his supervisor immediately, but delayed filing the claim as he did not receive any
medical bills until August 28, 2014. Appellant also confused his medical bills with those of a
family member with the same name.
Appellant requested reconsideration by January 19, 2015 appeal request form. OWCP
denied reconsideration by February 5, 2015 decision, finding that appellant’s October 6, 2014
letter and July 19, 2015 form did not contain new, relevant evidence or argument.
The Board finds that OWCP appropriately denied reconsideration as appellant’s
October 24, 2014 argument was not relevant to the claim. The critical issue was the medical
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608(b). See also D.E.., 59 ECAB 438 (2008).

6

Helen E. Tschantz, 39 ECAB 1382 (1988).

7

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

8

Annette Louise, 54 ECAB 783 (2003).

3

question of whether the accepted July 22, 2014 incident caused the claimed left wrist sprain.
Appellant’s letter and appeal request form are not medical evidence, and are thus irrelevant to
that issue. Therefore, they do not comprise a basis for reopening the case.9
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence. Appellant did not do so in this case. He also did not show that OWCP erroneously
applied or interpreted a point of law. Lastly, appellant did not advance a legal argument not
previously considered by OWCP. Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly
denied merit review.
On appeal, appellant asserts that he did in fact submit all available medical evidence and
made repeated efforts to comply with OWCP’s requests for information. He contends that
additional medical evidence accompanying his appeal request is sufficient to meet his burden of
proof. However, this evidence was not reviewed by OWCP. The Board notes that it may not
consider evidence for the first time on appeal that was not before OWCP at the time it issued the
final decision in the case.10 Therefore, the Board cannot review the evidence accompanying
appellant’s appeal.
CONCLUSION
The Board finds that OWCP properly denied reconsideration of the merits of appellant’s
claim pursuant to 5 U.S.C. § 8128(a).

9

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

10

20 C.F.R. § 501.2(c)(1).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 5, 2015 is affirmed.
Issued: November 20, 2015
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

5


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

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

Docket No. 16-0424
Issued: February 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 4, 2016 appellant, through counsel, filed a timely appeal from an August 5,
2015 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.
ISSUE
The issue is whether appellant sustained more than seven percent permanent impairment
of her right upper extremity, for which she previously received a schedule award.
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.

FACTUAL HISTORY
On September 2, 2008 appellant, then a 49-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained carpal tunnel syndrome due to years of
repetitive motions with unnatural sitting and body positions. She became aware of her condition
and its relationship to her employment on September 1, 2007. In an accompanying statement,
appellant also asserted that her job duties aggravated her arm and shoulder conditions. She
stopped work on September 10, 2008.
This case has previously been before the Board. By decision dated August 5, 2011, the
Board affirmed OWCP’s August 23, 2010 decision that appellant had not met her burden of
proof to establish an occupational disease in the performance of duty.3 The facts and
circumstances of the case as set forth in the Board’s prior decision and order are incorporated
herein by reference. Following additional case development, on May 30, 2013, OWCP accepted
appellant’s claim for the conditions of: cervical strain, right shoulder strain, thoracic strain, right
shoulder rotator cuff tear, medial and lateral epicondylitis of the right elbow, right cubital tunnel
syndrome and radial tunnel syndrome, right wrist tendinitis and carpal tunnel syndrome, and
lumbosacral strain, and paid appropriate benefits.
On August 20, 2013 appellant filed a claim for compensation Form CA-7 requesting
schedule award compensation benefits.
In a July 25, 2013 evaluation, Dr. John W. Ellis, a family practitioner, indicated that he
was familiar with the job duties of a rural carrier and listed appellant’s job duties as well as her
medical course since the early 2000s. He noted that she had undergone arthroscopic surgery on
January 28, 2008 for right shoulder rotator cuff repair and impingement and right carpal tunnel
release March 16, 2009. Dr. Ellis provided examination findings and his review of the medical
record. He diagnosed the following conditions as due to appellant’s employment: muscle
tendon unit strains of the neck, right shoulder and thoracic spine; right brachial plexus
impingement; internal derangement, traumatic arthritis, and rotator cuff tear of the right
shoulder; medial and lateral epicondylitis of the right elbow with cubital tunnel syndrome and
ulnar nerve impingement; medial and lateral epicondylitis of the right elbow with radial tunnel
syndrome, asymptomatic; tendinitis of the right wrist with carpal tunnel syndrome; muscle
tendon unit strains of the back and right iliolumbar sacroiliac ligaments; and right lumbosacral
plexus impingement.
Dr. Ellis opined that appellant had reached maximum medical improvement (MMI) on
July 25, 2013, but advised that future surgery might be needed. Utilizing the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment4 (hereinafter
A.M.A., Guides), and citing to tables and figures, he calculated 19 percent permanent
impairment of the right upper extremity and 2 percent permanent impairment of the right lower
extremity. The 19 percent permanent impairment of the right upper extremity consisted of 10
percent diagnosis-based impairment (DBI) and 10 percent peripheral nerve impairments. The
3

Docket No. 10-2342 (issued August 5, 2011).

4

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

2

two percent total impairment of the right lower extremity was due to sciatic nerve impairment.
Dr. Ellis also attached his worksheet forms explaining his rating.
In an August 23, 2013 report, an OWCP medical adviser reviewed Dr. Ellis’ July 25,
2013 report and indicated that many of the items Dr. Ellis considered for impairment were either
conditions not accepted by OWCP or not substantiated by objective findings. Utilizing Dr. Ellis’
examination findings and the sixth edition of the A.M.A., Guides, the medical adviser opined
that appellant had a total right upper extremity impairment of six percent and provided his
calculation of permanent impairment for the right shoulder and right carpal tunnel syndrome.
Based on the deficiencies noted by OWCP’s medical adviser, OWCP referred appellant
to Dr. James Bethea, a Board-certified orthopedic surgeon, for a second opinion impairment
rating. In an October 10, 2013 report, Dr. Bethea reviewed the statement of accepted facts, the
evidence of record, and presented examination findings. An impression of January 28, 2008
right shoulder arthroscopy with open rotator cuff repair and open subacromial depression and
status post March 16, 2009 right carpal tunnel release was provided. Dr. Bethea opined that
appellant had reached MMI, on July 25, 2013. Under the sixth edition of the A.M.A., Guides, he
opined that she had a seven percent permanent impairment of the right upper extremity. Under
Table 15-5, page 403, Dr. Bethea opined that appellant had class 1 full thickness tear rotator cuff
or three percent default impairment. Under Table 15-7 through Table 15-9, he assigned the
following grade modifiers: Clinical Studies (GMCS) were nonapplicable, grade modifier 2 for
Functional History (GMFH), and grade 2 for Physical Examination (GMPH) and provided an
explanation for the assignment of the grade modifiers. A net adjustment of 2 was found under
the net adjustment formula, (GMFH - Class of Diagnosis (CDX)) (2-1) + (GMPE - CDX) (2-1) +
(GMCS - CDX) (N/A), which moved the final grade from C to E or five percent permanent
impairment.
For appellant’s carpal tunnel condition, Dr. Bethea found two percent permanent
impairment. Under Table 15-23, page 449, he assigned test findings for grade modifier 1,
history for grade modifier 2, and physical findings for grade modifier 1. The grade modifiers
totaled 4, with an average of 1.33. Therefore, the grade 1 was selected, which had a default
upper extremity impairment value of two percent. The QuickDASH score was 64, which
indicated a moderate functional scale. Dr. Bethea indicated that he selected grade modifier 1
with a default value of two percent. Under the Combined Values Chart on page 604, he found
five percent right shoulder impairment and two percent right carpal tunnel impairment equaled a
total of seven percent permanent impairment.
On October 25, 2013 an OWCP medical adviser reviewed Dr. Bethea’s October 10, 2013
report and found it through and objective. He further opined that Dr. Bethea correctly utilized
the sixth edition of the A.M.A., Guides and agreed with his impairment calculations for a seven
percent total permanent impairment of right upper extremity.
By decision dated October 23, 2013, OWCP granted appellant a schedule award for
seven percent permanent impairment of the right arm. The award ran 21.84 weeks from July 25
to December 24, 2013.

3

On November 7, 2013 OWCP received counsel’s November 6, 2013 request for a
telephonic hearing before an OWCP hearing representative. The hearing was held on
May 8, 2014. No additional evidence was received.
By decision dated July 23, 2014, an OWCP hearing representative affirmed OWCP’s
October 28, 2013 decision finding no evidence that OWCP’s medical adviser had erred in his
application of the A.M.A., Guides.
On January 20, 2015 OWCP received counsel’s January 8, 2015 request for
reconsideration based on a new report from Dr. Ellis.
In an updated December 18, 2014 report, Dr. Ellis provided a history of the injury, a
review of the medical records, and his examination findings. He opined that appellant’s
diagnosed conditions of neck sprain, sprain of acromioclavicular (AC), sprain of rotator cuff,
carpal tunnel syndrome, sprain of back, thoracic region, other tenosynovitis of hand and wrist,
lesion of ulnar nerve, lesion of radial nerve, sprain of lumbar joint ligament, right elbow lateral
and medial epicondylitis, right lumbosacral plexus and sciatic nerve impingement, left shoulder
tendinitis and left wrist tendinitis were causally related to appellant’s work. Dr. Ellis opined that
she reached MMI as of October 10, 2013 the date of Dr. Bethea’s examination. He opined that
appellant had 13 percent combined permanent impairment of the right upper extremity based on
the DBI rating method of surgical repair rotator cuff tear, subacromial decompression with AC
joint impingement in the shoulder and right peripheral nerve impairments of carpal tunnel
syndrome and cubital tunnel syndrome. Dr. Ellis’ impairment calculations and impairment
worksheets were provided.
In an August 4, 2015 report, an OWCP medical adviser reviewed Dr. Ellis’ December 18,
2014 report and found that there was no new or pertinent evidence to support additional
impairment to the right arm. He noted that the only applicable diagnoses for impairment were
right carpal tunnel syndrome and right rotator cuff tear, and Dr. Ellis provided no new evidence
to support an additional right arm schedule award greater than seven percent previously awarded.
By decision dated August 5, 2015, OWCP denied modification of its July 23, 2014
decision.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with the Director of the Office of Workers’
Compensation Programs.5 Section 8107 of FECA sets forth the number of weeks of
compensation to be paid for the permanent loss of use of specified members, functions, and
organs of the body.6 FECA, however, does not specify the manner by which the percentage loss
5

See 20 C.F.R. §§ 1.1-1.4.

6

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).

4

5 U.S.C.

of a member, function, or organ shall be determined. To ensure consistent results and equal
justice under the law, good administrative practice requires the use of uniform standards
applicable to all claimants. Through its implementing regulations, OWCP adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.7
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).8 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.9
ANALYSIS
The issue on appeal is whether appellant sustained more than seven percent permanent
impairment of her right upper extremity, for which she previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.10
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.11 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the

7

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
9

Isidoro Rivera, 12 ECAB 348 (1961).

10

T.H., Docket No. 14-0943 (issued November 25, 2016).

11

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

5

application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.12
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the August 5, 2015
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: February 17, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
12

Supra note 10.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburg, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1854
Issued: March 18, 2016

Case Submitted on the Record

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

JURISDICTION
On September 10, 2015 appellant, through counsel, filed a timely appeal from an
August 19, 2015 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 met his burden of proof to establish a lumbar injury
causally related to a January 26, 2015 employment incident.
FACTUAL HISTORY
On March 24, 2015 appellant, then a 52-year-old truck driver, filed a traumatic injury
claim (Form CA-1) alleging that on January 26, 2015 he sustained a herniated disc in his lower
back when he bent over to pick up his work gloves and fell in a puddle of water.
1

5 U.S.C. § 8101 et seq.

By letter dated March 25, 2015, the employing establishment controverted the claim.
By letter dated April 6, 2015, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed to support his claim and was directed to submit such evidence within 30 days.
In an April 17, 2015 narrative statement, appellant explained that on January 26, 2015 he
was at work and dropped his gloves in a puddle of water. As he bent down, he felt a sharp
burning across his back. Appellant notified his supervisor of his injury at the end of shift. When
the pain continued to worsen, he sought medical treatment on January 28, 2015 and was off work
for treatment until he returned to full-duty work on February 9, 2015. Appellant explained that
he had never before been injured at work. He stated that, in November 2013, he had experienced
back spasms which resolved quickly and had no bearing on this incident.
In support of his claim, appellant submitted medical and diagnostic reports dated
January 28 through April 16, 2015 from Dr. Richard A. Weisman, a Board-certified-neurologist.
In a January 28, 2015 diagnostic report, Dr. Weisman reported that a magnetic resonance
imaging (MRI) scan of the lumbar spine revealed mild multilevel spondylosis, a small midline
annular tear at L3-4, a midline disc bulge at L4-5, and a small right paracentral disc herniation at
L5-S1 with slight impingement upon the right S1 root.
In a January 28, 2015 report, Dr. Weisman reported that appellant was a postal employee
whose duties entailed driving a truck and moving and lifting heavy containers of bulk mail. Two
days prior appellant bent over to pick up his gloves and developed a sharp excruciating pain
across his lumbar spine, which had gone into spasm. Dr. Weisman noted that in November 2013
appellant had a similar event which was less intense. He was never sent for a lumbar MRI scan
at that time because his symptoms resolved. Dr. Weisman provided findings on physical
examination, reviewed the lumbar MRI scan, and diagnosed lumbar radiculopathy and lumbar
pain radiating down the right leg.
In a March 24, 2015 report, Dr. Lisa Mainier, a Doctor of Osteopathic Medicine, reported
that appellant reinjured his back on March 16, 2015 when he was lifting the gate on the back of
his work truck, following a January 26, 2015 injury. She noted a history of disc herniation and
diagnosed lumbar radiculopathy, lumbar strain, and lumbar disc herniation.
In a March 25, 2015 diagnostic report, Dr. Weisman reported that a lumbar MRI scan
revealed a new right posterolateral free fragment disc herniation at L4-5 compressing the thecal
sac and right L5 root. Findings also included a small right posterolateral L5-S1 disc herniation
impinging upon the right S1 root and a minor midline bulge at L3-4. Dr. Weisman explained
that, when compared to the previous MRI scan, the right-sided disc fragment herniation at L4-5
was a new finding.
In a March 25, 2015 medical report, Dr. Weisman reported that he initially examined
appellant on January 28, 2015 for severe low back and right lower extremity radicular pain that
began after he bent over to pick up gloves in a puddle two days prior. This caused appellant
severe pain, decreased reflexes, and weakness of foot. A lumbar MRI scan revealed at that time
a small right paracentral L5-S1 disc herniation impinging upon the right S1 root and bulges at

2

L3-4 and L4-5 without thecal sac or nerve root impingement. Dr. Weisman reported that
appellant’s symptoms improved following the January 26, 2015 employment incident until he
experienced a major change in pain one week ago after he lifted the heavy tailgate of his work
truck. Appellant complained of excruciating pain in the right lumbosacral region and right leg
along with weakness and numbness. Dr. Weisman requested that appellant undergo an
emergency MRI scan due to the significant change in his symptoms. The MRI scan revealed a
new right posterolateral free fragment disc herniation at L4-5 descending into the lateral recess,
severely compressing, and posteriorly displacing the right L5 root. Dr. Weisman noted that the
small right posterolateral protrusion at L5-S1 remained unchanged. He explained that
appellant’s worsening symptoms correlated with the new right-sided disc herniation and
restricted him from returning to work.
In an April 16, 2015 report, Dr. Weisman provided a history of the January 26, 2015
injury and findings of the January 28, 2015 lumbar MRI scan. He noted that appellant resumed
work and his symptoms resolved. On March 25, 2015 appellant experienced a significant change
in his symptoms and developed excruciating pain in the right lumbosacral region which radiated
down into his right leg and foot after lifting the heavy tailgate of his work truck on
March 16, 2015. On examination, he was found to have decreased sensation to touch and pain
along the right lateral leg, right ankle jerk was absent, and straight leg raising was strongly
positive on the right side. Dr. Weisman explained that these findings and symptoms were
completely different from those of his January 2015 examination which were confirmed by the
significant changes found in the emergency MRI scan. He noted that the new MRI scan findings
were consistent with an event that occurred acutely when appellant lifted the gate of his work
vehicle. Appellant had a new right posterolateral free fragment disc herniation at L4-5
compressing the thecal sac and right L5 root which was the cause of his current symptomology.
Dr. Weisman further noted that appellant’s January 26 and March 16, 2015 injuries were
separate incidents which occurred at his place of employment and entailed two completely
different injuries. He further noted that his partner, Dr. John B. Talbott, Board-certified
neurologist, treated appellant in November 2013 for back spasms unrelated to either of the
above-stated injuries.
By decision dated May 7, 2015, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that his diagnosed conditions were causally related to the
accepted January 26, 2015 employment incident.
On May 20, 2015 appellant requested reconsideration of the May 7, 2015 OWCP
decision.
By letter dated May 15, 2015, Dr. Weisman expressed his disagreement with the May 7,
2015 OWCP decision and provided clarification pertaining to OWCP’s comments. He explained
that appellant’s January 28, 2015 lumbar MRI scan revealed a small right paracentral disc
herniation at L5-S1 following the January 26, 2015 work incident when appellant first loaded his
truck and then bent over to pick up gloves, resulting in low back pain and spasms. The
herniation at L5-S1 did not require surgery and appellant improved with conservative measures,
returning to regular-duty work. Dr. Weisman explained that there were no MRI scans prior to
January 28, 2015 and thus, nothing to compare. He noted that in 2013 appellant was briefly
treated by Dr. Talbott for back spasms and was diagnosed with lumbar strain. Appellant’s

3

symptoms did not require a lumbar MRI scan at that time as brief conservative treatment with a
physical therapist resolved his symptoms. Dr. Weisman noted that the episode in 2013 was
relatively insignificant and did not fit the classic signs or symptoms of a herniated disc and
therefore no imaging was necessary. There was no lost time from work or claim filed for the
2013 back spasms and no follow up with Dr. Talbott. Dr. Weisman opined within a reasonable
degree of medical certainty that there was no preexisting disc herniation and the 2013 backs
spasms had no causal relationship to the January 26, 2015 injury. As appellant worked without
incident until the January 26, 2015 injury, Dr. Weisman argued that this injury occurred when
appellant bent forward to pick up his gloves shortly after loading his work truck. During this
causative activity, picking up work gloves after loading the work truck, he experienced a sudden
onset of back pain which was consistent with his diagnosis, his examination, and the January 28,
2015 MRI scan findings.
Dr. Weisman further explained that on March 16, 2015 a new and separate work injury
occurred when appellant was lifting the heavy tailgate of his work truck and developed
excruciating pain in his right lumbosacral region radiating into his right leg and foot with
significant numbness. Appellant’s March 25, 2015 lumbar MRI scan revealed a new right
posterolateral free fragment disc herniation at L4-5 compressing the thecal sac and right L5 root
when compared to the January 28, 2015 study. The herniated disc at L5-Sl was unchanged.
Dr. Weisman explained that there was a definite change between the January and March 2015
MRI scan at the L4-5 disc level which revealed a new free fragment. This was not present on the
January 2015 MRI scan and was responsible for appellant’s new onset of acute symptoms
following the causative action of lifting the heavy tailgate of his work truck, and was responsible
for his ongoing symptoms and need for surgical correction. Dr. Weisman noted that, while disc
herniation at L5-S1 was present on both the January and March 2015 scan, it was not responsible
for appellant’s symptoms which were caused by the new free fragment disc herniation at L4-5.
He explained that the new free fragment disc herniation at L4-5 was a direct result of the
March 16, 2015 work injury when appellant experienced the acute onset of excruciating back
and leg pain after lifting the tailgate of his work truck. Dr. Weisman noted submission of all
relevant medical reports, including those prior to his January 26, 2015 injury. He opined that the
January 26, 2015 injury was not related to, nor did it aggravate, anything that occurred in 2013.
Dr. Weisman again reiterated that the separate March 16, 2015 work injury resulted in a right
posterolateral free fragment disc herniation at L4-5 which was compressing the thecal sac and
the right L5 root, resulting in severe back and leg pain, foot drop, numbness, and the need for
surgery. He concluded by explaining that the free fragment disc herniation at L4-5 was also not
related to, nor did it aggravate, anything that occurred in 2013.
In another letter dated March 15, 2015, Dr. Talbott reported that he had evaluated
appellant in November 2013 due to complaints of back pain and lumbar spasm. He prescribed a
few sessions of physical therapy that resulted in the resolution of appellant’s back pain.
Dr. Talbott noted that appellant’s symptoms were relatively insignificant and did not require any
further treatment or diagnostic testing. No MRI scan was performed in 2013 and appellant lost
no time from work for his lumbar strain.
By decision dated August 19, 2015, OWCP affirmed the May 7, 2015 decision finding
that the medical evidence of record failed to establish that his diagnosed conditions were causally
related to the accepted January 26, 2015 employment incident.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish 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 FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence supporting such a causal relationship.5 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. This medical opinion must include an accurate history of the
employee’s employment injury and must explain how the condition is related to the injury. The
weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.6
ANALYSIS
OWCP accepted that the January 26, 2015 employment incident occurred as alleged. The
issue is whether appellant established that the incident caused a lumbar injury. The Board finds
that he failed to submit sufficient medical evidence to support that his lumbar condition was
causally related to the January 26, 2015 employment incident.7
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, supra note 2.

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

See Robert Broome, 55 ECAB 339 (2004).

5

In medical and diagnostic reports dated January 28 through May 15, 2015, Dr. Weisman
reported that on January 26, 2015 appellant bent over to pick up his work gloves after loading his
truck and experienced low back pain and spasms. A January 28, 2015 MRI scan revealed a
small right paracentral disc herniation at L5-S1 with slight impingement upon the right S1 root.
Dr. Weisman noted a history of back spasms and lumbar strain in November 2013 which had
resolved with conservative treatment. He explained that the 2013 incident was insignificant and
was not the cause of appellant’s January 26, 2015 injury as it did not fit the classic signs or
symptoms of a herniated disc. Dr. Weisman believed that the injury occurred when he bent
forward to pick up his gloves shortly after loading his work truck. During this causative activity,
appellant experienced a sudden onset of back pain which was consistent with his diagnosis,
examination, and the January 28, 2015 MRI scan findings.
The Board finds, however, that the opinion of Dr. Weisman is not well rationalized.
Dr. Weisman noted a preexisting history of back spasms and lumbar strain. While he explained
that these conditions had resolved, he failed to discuss the specific signs and symptoms of these
prior injuries compared to examination findings following the January 26, 2015 injury to
establish that the disc herniation not preexisting. A well-rationalized opinion is particularly
warranted in this case due to appellant’s history of the earlier conditions.8 Moreover, the Board
has held that an opinion that a condition is causally related because the employee was
asymptomatic before the injury is insufficient, without adequate rationale, to establish causal
relationship.9
Dr. Weisman’s opinion on causal relationship did not adequately explain how the
January 26, 2015 employment incident could cause or otherwise aggravate his disc herniation
other than generally noting the development of pain. His statement on causation fails to provide
a sufficient explanation as to the mechanism of injury pertaining to this traumatic injury claim,
namely, how bending over to pick up gloves after loading a truck would cause or aggravate a
disc herniation.10 Medical reports without adequate rationale on causal relationship are of
diminished probative value and do not meet an employee’s burden of proof.11 The opinion of a
physician supporting causal relationship must rest on a complete factual and medical background
supported by affirmative evidence, address the specific factual and medical evidence of record,
and provide medical rationale explaining the relationship between the diagnosed condition and
the established incident or factor of employment.12 Without explaining how physiologically the
movements involved in the employment incident caused or contributed to the diagnosed

8

K.P., Docket No. 14-1330 (issued October 17, 2014).

9

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

S.W., Docket 08-2538 (issued May 21, 2009).

11

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

12

See Lee R. Haywood, 48 ECAB 145 (1996).

6

condition, Dr. Weisman’s opinion on causal relationship is equivocal in nature and of limited
probative value.13
The Board notes that Dr. Weisman reported that the disc herniation at L5-S1, which
appeared after the January 26, 2015 work incident did not require surgery and that appellant had
improved with conservative measures, returning to regular duty. Dr. Weisman went on to
explain that on March 16, 2015 appellant experienced a significant change in his symptoms after
lifting the heavy tailgate of his work truck. A March 25, 2015 MRI scan revealed a new right
posterolateral free fragment disc herniation at L4-5 when compared to the January 28, 2015
study. Dr. Weisman opined that appellant’s current complaints were caused by the new free
fragment disc herniation at L4-5, as evidenced by the March 25, 2015 lumbar MRI scan, which
was a direct result of a March 16, 2015 work injury when appellant experienced the acute onset
of excruciating back and leg pain after lifting the heavy tailgate of his work truck. In this
instance, he is attributing appellant’s current condition and injury to an employment incident
having occurred on March 16, 2015. Dr. Weisman failed to attribute his current disability to the
January 26, 2015 employment incident as filed by appellant in this traumatic injury claim, Claim
No. xxxxxx754.14
The remaining medical evidence is also insufficient to establish causal relationship
between appellant’s injury and the January 26, 2015 employment incident. While Dr. Mainier’s
March 24, 2015 report provided a diagnosis of lumbar radiculopathy, lumbar strain, and lumbar
disc herniation, her report is of limited probative value as she failed to state any opinion on the
cause of appellant’s injury.15 Dr. Talbott’s March 15, 2015 report discussed appellant’s
November 2013 lumbar spasms yet made no reference to the January 26, 2015 injury or disc
herniation. The Board has held that medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value.16 Any medical opinion
evidence appellant may submit to support his claim should reflect a correct history and offer a
medically sound explanation by the physician of how the specific employment incident, in
particular physiologically, caused or aggravated his lumbar injury.17
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

13

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
14

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
15

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

16

Id.

17

T.G., Docket No. 14-751 (issued October 20, 2014).

7

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a lumbar injury causally related to the January 26, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8