United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________

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)
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Appearances:
Manuel B. Madrid, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1000
Issued: March 25, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 21, 2021 appellant, through counsel, filed a timely appeal from an April 29, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

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

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

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case. 4
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an overpayment
of compensation in the amount of $10,573.82 for the period October 28, 2019 through July 18,
2020 for which he was without fault because he concurrently received FECA wage -loss
compensation benefits and Social Security Administration (SSA) age-related retirement benefits
without appropriate offset; (2) whether it properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly found that appellant abandoned his request for a prerecoupment
hearing.
FACTUAL HISTORY
On December 7, 2017 appellant, then a 64-year-old maintenance mechanic, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral shoulder conditions
due to factors of his federal employment, including heavy lifting, and repetitive reaching and
pulling. He did not stop work. On May 10, 2019 OWCP accepted the claim for bilateral complete
rotator cuff tears or ruptures of the shoulders, calcific tendinitis of the right shoulder, and
impingement syndrome of the left shoulder.
On October 24, 2019 appellant filed a claim for compensation (Form CA-7) for disability
beginning October 28, 2019. He noted that he had applied for SSA age-related retirement benefits
at age 66 and received SSA benefits beginning on January 1, 2019 in the amount of $2,388.00 a
month. Appellant indicated that he was covered by the Federal Employees Retirement Sy stem
(FERS).
On October 28, 2019 appellant underwent a right shoulder arthroscopic rotator cuff repair,
biceps tenodesis, subacromial decompression, and extensive glenohumeral debridement.
On November 5, 2019 OWCP authorized wage-loss compensation on the supplemental
rolls effective October 28, 2019. It authorized wage-loss compensation on the periodic rolls
effective January 4, 2020.
On November 5, 2019 OWCP forwarded a FERS/SSA dual benefits calculation worksheet
to SSA. On February 19, 2020 the SSA provided OWCP with a February 14, 2020 FERS/SSA
dual benefit calculation form. The form indicated that appellant became entitled to retirement
benefits, effective November 2018, and that there were no federal earnings to offset.

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the April 29, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

In a March 3, 2020 letter, OWCP informed SSA that it was aware that appellant was
entitled to retirement benefits effective November 2018. It further noted that he was receiving
SSA retirement benefits and that he was covered under FERS. OWCP requested additional
confirmation from SSA that there was no offset necessary.
On July 20, 2020 OWCP received a completed FERS/SSA dual benefit calculation form
from SSA, which reported that appellant had been in receipt of SSA age -related retirement benefits
since November 2018. SSA reported that: beginning November 2018, appellant’s monthly SSA
rate with FERS was $2,285.90 and without FERS was $1,129.80; beginning December 2018,
appellant’s monthly SSA rate with FERS was $2,349.80 and without FERS was $1,161.40;
beginning January 2019, appellant’s monthly SSA rate with FERS was $2,355.00 and without
FERS was $1,161.40; and beginning December 2019, appellant’s monthly SSA rate with FERS
was $2,392.70 and without FERS was $1,179.90.
OWCP completed a FERS offset calculation f orm on August 12, 2020. It calculated the
amount that it should have offset from appellant’s wage-loss compensation from October 28, 2019
through July 18, 2020. OWCP found that for the period October 28 through November 30, 2019,
the daily offset was $39.35 or $1,337.88 for 34 days, and for the period December 1, 2019 through
July 18, 2020, the daily offset was $39.98, or $9,235.94 for 231 days. It added the amounts for
each period and determined that it should have offset a total of $ 10,573.81 from his wage-loss
compensation.
In an August 12, 2020 letter, OWCP informed appellant that it would begin deducting
$1,119.51, the portion of SSA age-related retirement benefits attributable to his federal service,
from his periodic compensation benefits.
On August 13, 2020 OWCP notified appellant of its preliminary overpayment
determination that he had received an overpayment of compensation in the amount of $10,573.82
because it had failed to reduce his wage-loss compensation benefits for the period October 28,
2019 through July 18, 2020 by the portion of his SSA age-related retirement benefits that were
attributable to federal service. It further advised him of its preliminary determination that he was
without fault in the creation of the overpayment. OWCP provided appellant with an overpayment
action request form and an overpayment recovery questionnaire (Form OWCP-20). Additionally,
it notified him that, within 30 days of the date of the letter, he could request a telephone conference,
a final decision based on the written evidence, or a prerecoupment hearing. 5
On September 11, 2020 appellant requested a prerecoupment hearing and completed an
overpayment action request form requesting waiver of recovery of the overpayment. He advised
that he had used the compensation on necessary expenditures that he would otherwise not have
been able to afford and could not repay the overpayment without financial hardship. On the Form
OWCP-20 appellant listed total monthly income of $7,497.00 and total monthly expenses of
$6,444.00. He listed real estate assets of $80,000.00 and $90,000.00, with mortgage balances of
$48,700.00 and $53,700.00, respectively, as well as a vacant lot worth $3,000.00. Appellant listed

5

By decision dated September 14, 2020, OWCP affirmed the August 13, 2020 preliminary overpayment findings.
On January 25, 2021 OWCP vacated a September 14, 2020 decision finalizing the preliminary overpayment
determination.

3

other assets totaling $5,200.00 including $500.00 in cash, $1,200.00 in checking, $500.00 in
savings, and stocks and bonds worth $3,000.00.
On March 5, 2021 OWCP’s hearing representative informed appellant of the time and
location of his prerecoupment hearing scheduled for April 15, 2021 at 2:45 p.m. Eastern Standard
Time (EST) regarding OWCP’s August 13, 2020 preliminary finding of the overpayment. It
mailed the notice to appellant’s last known address of record and provided instructions on how to
participate. Appellant did not appear at the hearing or request postponement of the hearing.
By decision dated April 29, 2021, OWCP’s hearing representative, after conducting a
review of the written record, found that appellant failed to attend the scheduled hearing and failed
to request postponement of the hearing. She, therefore, determined that appellant had abandoned
his hearing request. OWCP’s hearing representative further finalized the preliminary overpayment
determination, finding that appellant had received a $10,573.82 overpayment of compensation
from October 28, 2019 through July 18, 2020 because he had concurrently received FECA wageloss compensation and SSA age-related retirement benefits without the appropriate offset. She
also found that appellant was without fault in the creation of the overpayment, but denied waiver
of recovery of the overpayment as appellant’s monthly income of $7,497.00 exceeded his monthly
expenses of $6,444.14 by more than $50.00 and as he had assets of approximately $75,000.00
exceeding the base of $10,300.00 for an individual with a spouse. OWCP’s hearing representative
explained that, because he failed to meet both prongs of a two-prong test of whether recovery of
the overpayment would defeat the purpose of FECA, it was not necessary to consider waiver of
recovery on this basis. She further found appellant had not submitted evidence that he made any
financial decision that changed his position for the worse as a result of the receipt of the overpaid
benefits and, therefore, had not established that recovery of the debt would be against equity and
good conscience.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 6 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. 7
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 8 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

4

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. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $10,573.82 for the period October 28, 2019 through July 18, 2020
for which he was without fault, because he concurrently received FECA wage -loss compensation
benefits and SSA age-related retirement benefits without appropriate offset.
Appellant began receiving SSA age-related retirement benefits in November 2018. OWCP
paid appellant wage-loss compensation for total disability following his accepted employment
injury beginning October 28, 2019. As noted, a claimant cannot receive FECA compensation for
wage-loss and SSA age-related retirement benefits attributable to federal service for the same
period.10 Accordingly, the Board finds that fact of overpayment has been established.11
To determine the amount of the overpayment, the portion of SSA age-related retirement
benefits attributable to federal service must be calculated. OWCP received documentation from
SSA with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. SSA provided the SSA rates with FERS and without FERS for
specific periods from October 28, 2019 through July 18, 2020. OWCP set forth its calculations of
the amount that should have been offset during the relevant period based on informa tion provided
by SSA for the period October 28, 2019 through July 18, 2020.
The Board has reviewed OWCP’s calculation of dual benefits received by appellant for the
period October 28, 2019 through July 18, 2020 and finds that an overpayment of compensation in
the amount of $10,573.82 was created.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA 13 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. Thus, a
finding that appellant was without fault does not automatically result in waiver of the overpayment.
OWCP must exercise its discretion to determine whether recovery of th e overpayment would
defeat the purpose of FECA or would be against equity and good conscience. 14

9

FECA Bulletin No. 97-09 (February 3, 1997). See also N.B., Docket No. 18-0795 (issued January 4, 2019).

10

Supra note 8. See J.T., Docket No. 21-0010 (issued September 30, 2021); A.C., Docket No. 18-1550 (issued
February 21, 2019).
11

See S.H., Docket No. 20-1157 (issued December 23, 2020); K.H., Docket No. 18-0171 (issued August 2, 2018).

12

See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).

13

Supra note 3.

14

J.T., supra note 10; G.L., Docket No. 19-0297 (issued October 23, 2019).

5

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs sub stantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics. 15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant not at fault in the creation of the overpayment, waiver must be
considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 16 It considered his
financial information to determine if recovery of the overpayment would defeat the purpose of
FECA.
The Board finds that OWCP properly determined that appellant did not require
substantially all of his income to meet ordinary living expenses. OWCP found that, after its review
of appellant’s financial documents of record, he had total current monthly income of $7,497.00
and total monthly expenses of $6,444.14, which left more than $1,052.00 of disposable income
with which to repay the debt. As appellant’s monthly income exceeds his ordinary and necessary
living expenses by more than $50.00, the Board finds that he did not need substantially all of his
income for ordinary and necessary living expenses.
As appellant failed to establish that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery of the overpayment. 17
LEGAL PRECEDENT -- ISSUE 3
A claimant dissatisfied with a decision on his or her claim is entitled, upon timely request,
to a hearing before an OWCP representative. 18 Unless otherwise directed in writing by the
claimant, the hearing representative will mail a notice of the time, place, and method of the oral
15

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide that assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(2) and (3) (September 2018).
16

Id. at § 10.436.

17

Supra note 15. With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases
where OWCP seeks recovery from continuing compensation benefits. A.S., Docket No. 20-1314 (issued February 23,
2021); L.L., Docket No. 19-0097 (issued March 20, 2020); A.B., Docket No. 18-0915 (issued October 24, 2018). As
appellant was not in receipt of continuing wage-loss compensation at the time of OWCP’s final overpayment
determination, the Board does not have jurisdiction over the method of recovery of the overpayment in this case. See
id.; Miguel A. Muniz, 54 ECAB 217 (2002); Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.
18

Supra note 3 at § 8124(b).

6

hearing to the claimant and to any representative at least 30 days before the scheduled hearing
date.19
A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned
only under very limited circumstances. 20 With respect to abandonment of hearing requests,
Chapter 2.1601(g) of OWCP’s procedures21 and section 10.622(f) of its regulations 22 provide in
relevant part that failure of the claimant to appear at the scheduled hearing, failure to request a
postponement, and failure to request in writing within 10 days after the date set for the hearing that
another hearing be scheduled shall constitute abandonment of the request for a hearing. Under
these circumstances, the Branch of Hearings and Review will issue a formal decision finding that
the claimant has abandoned his or her request for a hearing and return the case to the district
office.23
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly determined that appellant abandoned his request for
a prerecoupment hearing.
OWCP’s Branch of Hearings and Review received appellant’s September 11, 2020 request
for a telephonic prerecoupment hearing. In a March 5, 2021 letter, OWCP provided appellant 30
days written notice of the hearing, which was scheduled for April 15, 2021 at 2:45 p.m. EST. It
mailed the March 5, 2021 notice of hearing to appellant’s last known address of record, and it was
not returned as undeliverable. Absent evidence to the contrary, a notice mailed in the ordinary
course of business is presumed to have been received by the intended recipie nt.24 The presumption
is commonly referred to as the “mailbox rule.”25 It arises when the record reflects that the notice
was properly addressed and duly mailed. 26 The current record is devoid of evidence to rebut the
presumption that appellant received OWCP’s March 5, 2021 notice of hearing.
The hearing notice was properly addressed to appellant’s last known address of record.27
Appellant did not call-in as instructed for the April 15, 2021 scheduled telephonic hearing and

19

Supra note 8 at § 10.617(b).

20

R.L., Docket No. 20-0186 (issued September 14, 2020); C.Y., Docket No. 18-0263 (issued September 14, 2018);
Claudia J. Whitten, 52 ECAB 483 (2001).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
22

Supra note 9 at § 10.622(f).

23

Id.

24

C.Y., supra note 20; Kenneth E. Harris, 54 ECAB 502 (2003).

25

Id.

26

Id.

27

Id.; K.F., Docket No. 17-1035 (issued August 24, 2017).

7

there is no indication that he requested postponement of the telephonic hearing. 28 Moreover, he
did not submit a written request within the 10 days after the date set for the telephonic hearing and
request that another telephonic hearing be scheduled. Under the circumstances, OWCP’s hearing
representative properly found that appellant abandoned his telephonic hearing request. 29
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$10,573.82 for the period October 28, 2019 through July 18, 2020 for which he was without fault,
because he concurrently received FECA wage-loss compensation benefits and SSA age-related
retirement benefits without appropriate offset. The Board further finds that OWCP properly
denied waiver of recovery of the overpayment and that OWCP properly determined that appellant
abandoned his request for a prerecoupment hearing.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

28

20 C.F.R. § 10.622(c).

29

C.Y., supra note 20; M.V., Docket No. 17-1795 (issued March 1, 2018).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
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)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Arlington, VA, Employer
)
__________________________________________ )
T.B., Appellant

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

Docket No. 20-0158
Issued: March 18, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 28, 2019 appellant filed a timely appeal from an August 22, 2019 merit
decision and an October 10, 2019 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). 1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 3

1
Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, he asserted that oral argument should be granted so that he will have an
opportunity to establish his claim. The Board, in exercising its discretion, denies appellant’s request for oral argument
because the arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral
argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the
oral argument request is denied and this decision is based on the case record as submitted to the Board.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 10, 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.

ISSUES
The issues are: (1) whether appellant has established a permanent impairment of a
scheduled member or function of the body warranting a schedule award; and (2) whether OWCP
properly denied appellant’s request for an oral hearing as untimely filed under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On February 7, 2017 appellant, then a 51-year-old inspector, filed a traumatic injury claim
(Form CA-1) alleging that on January 30, 2017 he sustained a lacerated lower lip when he fell
while in the performance of duty. He stopped work on January 30, 2017.
On January 30, 2019 OWCP accepted the claim for laceration without foreign body of
lip, initial encounter.
On March 1, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a March 12, 2019 development letter, OWCP advised appellant that FECA provided a
schedule award, not to exceed $3,500.00, for serious disfigurement of the face, head, or neck if
such disfigurement was likely to handicap an individual in securing or maintaining employment.
It further provided instructions for submitting photographs of the claimed disfigurement. OWCP
requested that appellant complete an attached disfigurement award application form, and that he
arrange for an attending physician to complete and submit the f orm. No further response was
received.
By decision dated August 22, 2019, OWCP denied appellant’s claim for a schedule award
finding that the evidence of record failed to establish permanent impairment of a scheduled
member or function of the body.
On September 26, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
By decision dated October 10, 2019, OWCP denied appellant’s request for an oral hearing
as untimely filed. The decision noted that his request dated September 26, 2019, was not made
within 30 days of OWCP’s August 22, 2019 decision. As such, appellant was not entitled to a
hearing as a matter of right. OWCP considered a discretionary hearing, but declined to grant a
hearing, noting that he could instead file for reconsideration and submit new evidence establishing
an employment-related impairment due to his accepted January 30, 2017 employment injury.
LEGAL PRECEDENT -- ISSUE 1
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.4 To support a schedule award,
the file must contain competent medical evidence which shows that the impairment has reached a
4

D.F., Docket No. 18-1337 (issued February 11, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).

2

permanent and fixed state and indicates the date on which this occurred, describes the impairment
in sufficient detail so that it can be visualized on review, and computes the percentage of
impairment in accordance with the A.M.A., Guides.5
Section 8107(c)(21) of FECA provides that payment of compensation not to exceed
$3,500.00 may be made for disfigurement of the face, head, or neck which is likely to handicap
the claimant in securing or maintaining employment. 6 OWCP procedures further provide that a
district medical adviser (DMA) will be asked to review such claims and to evaluate the employee’s
disfigurement. If the DMA finds that maximum medical improvement (MMI) has occurred, he or
she will review the photographs submitted along with the medical evidence of record and place a
memorandum in the file describing the disfigurement and stating whether MMI has occurred. If
the DMA finds MMI has occurred, the concurrence of the district director or assistant district
director must be obtained. Following the file review, the district director or assistant district
director will also write a memorandum which contains a description of the disfigurement. 7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established permanent impairment of a scheduled
member or function of the body warranting a schedule award.
As noted above, section 8107(c)(21) of FECA provides that payment of compensation not
to exceed $3,500.00 may be made for disfigurement of the face, head, or neck which is likely to
handicap the claimant in securing or maintaining employment. 8 The Board finds that OWCP
properly followed its procedures in determining that appellant was not entitle d to an award for
facial disfigurement. 9
In a development letter dated March 12, 2019, OWCP advised appellant of the
requirements for a schedule award. However, appellant did not submit medical evidence in

5

B.J., Docket No. 19-0960 (issued October 7, 2019).

6

5 U.S.C. § 8107(c)(21).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.10 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010); see J.S.,
Docket No. 19-1226 (issued December 23, 2019); see L.J., Docket No. 13-0104 (issued October 21, 2013).
8

5 U.S.C. § 8107(c)(21).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.10 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010).

3

support of his claim for a schedule award. The Board thus finds that he has not met his burden of
proof.
Appellant may request a schedule award or increased schedule award for his facial
disfigurement at any time based on new medical evidence.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his or her claim before a representative of the Secretary. 10 Sections
10.617 and 10.618 of the federal regulations implementing this section of FECA provide that a
claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary. 11 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 12
Although there is no right to a review of the written record or an oral hearing, if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion. 13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s September 26, 2019 request for
an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124(b).
On September 26, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review; however, this was more than 30 days after OWCP’s
August 22, 2019 decision. 14 Section 8124(b)(1) is unequivocal on the time limitation for
requesting a hearing.15 As such, the request was untimely and appellant was not entitled to an oral
hearing as a matter of right.
The Board further finds that OWCP, in its October 10, 2019 decision, properly exercised
its discretionary authority by noting that it had considered the matter and denied appellant’s request

10

5 U.S.C. § 8124(b)(1).

11

20 C.F.R. §§ 10.616, 10.617, and 10.618.

12

Id. at § 10.616(a).

13

J.T., Docket No. 18-0664 (issued August 12, 2019); Eddie Franklin, 51 ECAB 223 (1999); Delmont L.
Thompson, 51 ECAB 155 (1999).
14

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011). If the postmark is illegible, the request will
be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is
untimely. Id.
15

See M.M., Docket No. 19-1171 (issued October 22, 2019); William F. Osborne, 46 ECAB 198 (1994).

4

for an oral hearing as his claim could be equally well addressed through a reconsideration
application.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deduction
from established facts. 16 The Board finds that the evidence of record does not establish that OWCP
abused its discretion in denying appellant’s request for an oral hearing before an OWCP hearing
representative.17
CONCLUSION
The Board finds that appellant has not established permanent impairment of a scheduled
member or function of the body warranting a schedule award. The Board further finds that OWCP
properly denied his September 26, 2019 request for an oral hearing as untimely filed pursuant to 5
U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the October 10 and August 22, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 18, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

T.G., Docket No. 19-0904 (issued November 25, 2019); see Daniel J. Perea, 42 ECAB 214, 221 (1990).

17

J.G., Docket No. 19-0555 (issued March 14, 2019).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, SOUTH ARLINGTON
STATION, Akron, OH, Employer
__________________________________________

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

Docket No. 15-1540
Issued: January 15, 2016

Case Submitted on the Record

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

JURISDICTION
On July 9, 2015 appellant, through counsel, filed a timely appeal of a May 13, 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 her burden of proof to establish that her left foot
fractures were caused by her employment duties on June 29, 2013.
FACTUAL HISTORY
On July 6, 2013 appellant, then a 40-year-old carrier, filed a traumatic injury claim (Form
CA-1) alleging that on that date she sustained left foot fractures due to walking her mail route.

1

5 U.S.C. § 8101 et seq.

She alleged that there was no external factor, such as a trip or a fall, except for the walking
required for her route as a carrier.
Appellant was diagnosed with second and third metatarsal fractures and released to work
with restrictions in a July 5, 2013 Summa Health System return to work form.
On July 17, 2013 OWCP received an undated statement of appellant. In her statement
appellant noted that her foot began to hurt and swell around 3:00 p.m. on June 29, 2013.
OWCP received additional medical reports on July 18, 2013 as set forth below.
A July 5, 2013 x-ray interpretation revealed left foot second and third metatarsal
fractures.
A Summa Health System report dated July 5, 2013 and signed by Dr. Michael V.
Marquard, an examining treating Board-certified emergency physician, and Dr. Robert Faulkner,
an examining Board-certified emergency physician, provided a history of injury, objective test
results, and physical examination findings. Under history of illness, the report noted that
appellant had complaints of left foot pain for the past six days and that she walks 11 miles per
day in her job. Diagnoses included left foot second and third metatarsal fractures.
Dr. Caroline L. Wilson, an examining Board-certified emergency physician, reported on
July 10, 2013 that appellant had been evaluated in the emergency room on July 5, 2013 and
diagnosed with second and third metatarsal left foot fractures. She noted no specific injury, but
that appellant had bone spur surgery on November 9, 2012 and since June 3, 2013 had been
walking approximately 10 miles per day. Dr. Wilson reported that appellant’s pain began on
July 1, 2013 and became unbearable on July 5, 2013, which was the date of evaluation.
In a July 16, 2013 report, Dr. W. Joseph Schoeppner, a treating podiatrist, diagnosed left
foot broken bones. He noted June 29, 2013 as the date of onset of pain while appellant was
delivering mail. Appellant continued working until July 5, 2013 when the pain became
overwhelming and she went to the emergency room where she was diagnosed with left foot
second and third metatarsal fractures.
Dr. Wilson, in a July 17, 2013 report, noted that appellant was seen for a follow-up visit.
She noted that appellant walks approximately 11 miles per day and the date of injury is early
July 2013. Dr. Wilson provided the history of the injury and physical examination findings.
Diagnoses included left foot second and third metatarsal fractures. In a July 17, 2013
physician’s report of work ability form, Dr. Wilson released appellant to work with restrictions.
She noted that appellant was unable to perform her usual job.
A July 18, 2013 form report from Summa physicians noted that appellant was seen that
day and that she remained totally disabled for work. The report noted a diagnosis of metatarsal
fracture.
Dr. Eric T. Miller, a treating Board-certified orthopedic surgeon, in a July 18, 2013
report, diagnosed left foot second and third metatarsal fractures based on review of a July 5,
2013 x-ray interpretation. The injury date was listed as July 5, 2013. Dr. Miller described the
2

injury as occurring during the week of July 4, 2013 when appellant began to have increasing pain
while working as a mail carrier. Appellant denied that she sustained any specific trauma to her
left foot. A physical examination revealed moderate left foot swelling about the forefoot region
and tenderness in the second and third metatarsal region.
On July 29, 2013 OWCP received an Ohio state workers’ compensation claim form
injury report from Dr. Faulkner. Dr. Faulkner noted an injury date of June 29, 2013 at 3:00 p.m.
and the last workday as July 5, 2013. The description of injury revealed that appellant was
walking and delivering mail when she felt her foot swell up and on July 5, 2013 she had trouble
walking. Dr. Faulkner diagnosed left foot second and third metatarsals and noted “unknown” as
to whether the injury was employment related.
By letter dated August 15, 2013, OWCP noted the evidence that it had received and
informed appellant that the evidence of record was insufficient to establish her claim. Appellant
was advised as to the medical and factual evidence required to support her claim and was
afforded 30 days to provide this information.
On August 26, 2013 OWCP received an undated statement from appellant clarifying that
the traumatic injury occurred on June 29, 2013 not July 6, 2013 as she was not at work on
July 6, 2013. Appellant wrote that she had foot surgery on November 9, 2012, returned to work
on January 28, 2013, was laid off as a transitional employee on April 12, 2013, and then rehired
as a city carrier assistant on June 1, 2013. While walking and delivering mail on June 29, 2013
she noticed at about 3:00 p.m. that her foot was hurting and it began to swell. Appellant
informed her supervisor on July 1, 2013 that her left foot hurt and was swollen. However, it was
not until July 5, 2013 that she could barely walk due to the pain and that she went to the
emergency room where she was informed that she had second and third metatarsal fractures in
her left foot.
In an August 22, 2013 report, Dr. Miller noted that appellant had been diagnosed with left
foot second and third metatarsal fractures in a July 5, 2013 x-ray interpretation. The date of
injury was noted as July 5, 2013. Appellant reported that her pain had significantly improved.
By decision dated September 27, 2013, OWCP denied appellant’s claim as it found the
medical evidence insufficient to establish a causal relationship between the diagnosed second
and third metatarsals stress fractures and the June 29, 2013 employment incident.
In a September 30, 2013 letter, counsel requested a telephonic hearing before an OWCP
hearing representative, which was held on March 3, 2014.
Dr. Miller, in an October 3, 2013 report, noted that appellant was seen for a follow-up for
her left foot second and third metatarsal fractures. He reported the injury date as July 5, 2013.
Under assessment, Dr. Miller noted closed metatarsal bone fracture.
In a March 11, 2014 report, Dr. Miller wrote that he first saw appellant on July 18, 2013
for her left foot second and third metatarsal fractures. He noted the history of injury as related
by appellant. Dr. Miller wrote that appellant’s increasing pain symptoms were consistent with a
stress fracture due to significant walking. However, he was unable to opine whether the

3

condition was attributable to the June 29, 2013 incident as he did not see appellant until
July 18, 2013.
By decision dated April 4, 2014, an OWCP hearing representative affirmed the
September 27, 2013 denial of appellant’s claim.
In a letter dated March 9, 2015, counsel requested reconsideration and submitted a
November 26, 2014 report by Dr. Wilson in support of the request.
In a November 26, 2014 report, Dr. Wilson reported seeing appellant on July 10, 2013 for
left foot pain which began approximately on June 29, 2013. A review of July 5, 2013 x-ray
interpretations revealed second and third metatarsal fractures with displacement. Dr. Wilson
noted that appellant had surgery in November 2012 and subsequently returned to work. She
noted that appellant began delivering mail on June 1, 2013 which entailed walking 10 to 11 miles
per day. Dr. Wilson attributed appellant’s fractures to the rapid transition from sedentary work
to full-duty work and the considerable walking required in her job.
By decision dated May 13, 2015, OWCP denied modification, after merit review.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of 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 and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.5 To determine whether a federal employee has sustained a traumatic injury in
the performance of duty it must first be determined whether a fact of injury has been
established.6 First, the employee must submit sufficient evidence to establish that she actually
experienced the employment incident at the time, place, and in the manner alleged.7 Second, the

2

Supra note 1.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

4

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.10 The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.11
ANALYSIS
Appellant alleged that she sustained left foot fractures as the result of walking while
delivering mail on June 29, 2013. OWCP found the evidence sufficient to establish that the
incident occurred as alleged, but found that the medical evidence of record was insufficient to
establish the condition was causally related to the June 29, 2013 employment incident. The issue
is whether appellant has established that she sustained a left foot condition causally related to
walking her mail route on June 29, 2013. The Board finds that she has failed to meet her burden
of proof.
Dr. Wilson diagnosed left foot second and third metatarsal fractures in her reports. The
Board finds, however, that she failed to adequately address the issue of causal relationship.
Dr. Wilson did not explain, with medical rationale, the mechanism by which walking her mail
route on June 29, 2013 caused or aggravated appellant’s left foot second and third metatarsal
fractures.
The only report addressing the cause of appellant’s condition was in a November 26,
2014 report in which Dr. Wilson attributed the fractures to the rapid transition from sedentary to
full-duty work and the considerable walking required in the position. The Board finds, however,
that Dr. Wilson did not explain why transitioning from a sedentary position to a position which
required walking would cause foot fractures. She did not provide medical rationale to explain
how the left foot fractures had been caused or aggravated by walking and delivering mail on
June 29, 2013. As such it is of little probative value.12

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.
9

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
10

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12

S.S. Docket No. 07-579 (issued January 14, 2008); Richard A. Neidert, 57 ECAB 474 (2006); Willa M. Frazier,
55 ECAB 379 (2004).

5

In reports dated July 10 and 17, 2013, Dr. Wilson noted that appellant was seen on July 5,
2013 for left foot second and third metatarsal fractures. She noted the history of the injury and
that appellant walked approximately 10 miles per day. Dr. Wilson diagnosed left foot second
and third metatarsal fractures. In these reports she did not offer any opinion as to the cause of
appellant’s left foot fractures. As Dr. Wilson failed to offer an opinion on the cause of
appellant’s condition, these reports are insufficient to establish causal relationship.13 These
reports are also deficient as they are based on an inaccurate history of injury as Dr. Wilson noted
an injury date of early July 2013.14
The reports from Dr. Miller are also insufficient to support appellant’s claim. In reports
dated July 18, August 22, and October 3, 2013, Dr. Miller noted an injury date of July 5, 2013
and diagnosed left foot second and third metatarsal fractures. Medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value.15
In addition, the Board has held that medical conclusions based on an inaccurate or incomplete
factual history are of diminished probative value.16 Dr. Miller’s March 11, 2014 report is also
insufficient to support appellant’s claim as the physician noted that he was unable to conclude
whether walking on June 29, 2013 was the cause of the diagnosed condition.
The reports of Drs. Marquard, Faulkner, and Schoeppner are insufficient to meet
appellant’s burden of proof as none of these physicians provided an opinion on the cause of her
condition, or they found the cause was unknown. As such, their opinions are insufficient to
establish causal relationship.17 Likewise, the x-ray interpretation and work release reports are of
limited probative value as they do not address whether the July 29, 2013 work incident caused
any diagnosed condition.
The record before the Board is without rationalized medical evidence establishing that
appellant’s left foot fractures were causally related to the accepted June 29, 2013 employment
incident. OWCP advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment, and the
physician’s opinion, with medical reasons, on the cause of her condition. Appellant failed to
submit appropriate medical documentation in response to OWCP’s request. The Board has held
that the mere fact that a condition manifests itself during a period of employment does not raise
an inference of causal relation.18 An award of compensation may not be based on surmise,
conjecture, speculation or on the employee’s own belief of causal relation.19
13

S.E., Docket No. 08-2214 (issued May 6, 2009); Jaja K. Asaramo, 55 ECAB 200 (2004).

14

M.W., 57 ECAB 710 (2006); Robert H. St. Onge, 43 ECAB 1169 (1992).

15

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, supra note 13; Michael E. Smith, 50 ECAB 313 (1999).

16

Supra note 14.

17

Supra note 13.

18

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
19

S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303 (2007); Donald W. Long, 41 ECAB 142 (1989).

6

In addition, to the extent that appellant’s statement and the medical evidence indicate that
her foot fractures were causally related to daily employment activities, as an alternative, she
could file an occupational disease claim.20
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds that counsel’s arguments are
unsubstantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that her left foot fractures were causally
related to the accepted June 29, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 13, 2015 is affirmed.
Issued: January 15, 2016
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

20

20 C.F.R. §§ 10.5(q); 10.101; and 10.116.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Staten Island, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-357
Issued: May 22, 2014

Case Submitted on the Record

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

JURISDICTION
On December 2, 2013 appellant, through her attorney, filed a timely appeal from the
June 14, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied her reconsideration request. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this
nonmerit decision. Under 5 U.S.C. § 8128(a).
ISSUE
The issue is whether OWCP properly denied appellant’s reconsideration request.
FACTUAL HISTORY
On November 25, 2005 appellant, then a 44-year-old mail processing clerk, sustained a
traumatic injury in the performance of duty while lifting. OWCP accepted her claim for cervical
radiculitis.
1

5 U.S.C. § 8101 et seq.

In a decision dated June 8, 2007, OWCP terminated appellant’s monetary benefits under
5 U.S.C. § 8106(c)(2) on the grounds that she refused an offer of suitable work. The Board
reviewed the matter on December 3, 2008 and affirmed the termination.2 The Board found that
the weight of the medical evidence rested with the opinion of Dr. Stanley Soren, a Boardcertified orthopedic surgeon and impartial medical specialist. The Board found that the
employing establishment offered appellant a modified assignment suitable to her medicallyestablished work restrictions. The Board also found that Dr. Raul P. Sala, the attending
physiatrist, did not directly address the medical restrictions noted in Dr. Soren’s report and did
not explain why appellant could not work the six hours required by the modified assignment.
For that reason, Dr. Sala’s opinion was of diminished probative value and did not create a
conflict with the opinion of the impartial medical specialist.3
In a decision dated July 6, 2011, OWCP denied authorization for medical treatment of
appellant’s current complaints. It found that the medical opinion evidence failed to support a
causal relationship between the need for treatment of her newly diagnosed conditions and the
traumatic work incident on November 25, 2005, “as your conditions(s) pertains to the unrelated
current diagnoses for the right shoulder and the cervical spine.”
Appellant, through counsel, requested reconsideration. Counsel indicated that she was
requesting reconsideration of OWCP’s July 6, 2011 decision denying authorization for medical
treatment, as well as the Board’s December 3, 2008 decision affirming the termination of her
monetary compensation.4
Counsel argued that the medical evidence established that conditions other than the
accepted condition were causally related to the November 25, 2005 work injury. In particular, he
pointed to the April 12, 2011 report of Dr. Sala. Counsel contented that OWCP did not meet its
burden of proof to terminate appellant’s compensation because the medical evidence
unequivocally established that she was not capable of performing the duties of the offered
position. He added that the opinions of OWCP-retained physicians were based on the injuries
and conditions that OWCP had accepted as causally related to the work injury and not on the
more significant injuries diagnosed by appellant’s treating physician, including rotator cuff
syndrome of the right shoulder.
On June 20, 2012 OWCP reviewed the merits of appellant’s case and denied modification
of the July 6, 2011 prior decision. It found that medical evidence was not sufficient to support
that the need for further treatment causally related to the November 25, 2005 work injury.
Although Dr. Sala diagnosed cervical radiculopathy due to discogenic disease of the cervical
spine and rotator cuff syndrome of the right shoulder, he did not adequately explain how those
conditions were causally related to the November 25, 2005 work injury.
2

OWCP accepted that on November 25, 2005 appellant, then a 44-year-old mail processing clerk, sustained
cervical radiculitis in the performance of duty.
3

The facts of this case as set forth in the Board’s prior decision are hereby incorporated by reference. See Docket
No. 08-1283 (issued December 3, 2008).
4

Appellant had 30 days after December 3, 2008 to file with the Board a petition for reconsideration of its
decision. 20 C.F.R. § 501.7. OWCP has no jurisdiction to reconsider a Board decision and order.

2

Appellant, through counsel, again requested reconsideration. OWCP received the
June 11, 2013 request on June 12, 2013. The request was a nearly identical copy of appellant’s
previous reconsideration request.
In a decision dated June 14, 2013, OWCP denied appellant’s reconsideration request. It
found that the request repetitious, as it was a copy of the request previously considered in the
most recent merit decision.
On appeal, counsel repeats the basic points argued in his reconsideration request. He
states that OWCP’s denial of a merit review was “clearly improper in light of the evidence and
argument contained within the second reconsideration request submitted to [OWCP].”
LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.5 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by it; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP decision for which review is sought.7 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or argument that meets at
least one of these standards. If reconsideration is granted, the case is reopened and the case is
reviewed on its merits. Where the request is timely but fails to meet at least one of these
standards, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.8
Evidence that repeats or duplicates evidence already in the record has no evidentiary
value and constitutes no basis for reopening a case.9
ANALYSIS
OWCP received appellant’s reconsideration request within one year of the most recent
merit decision in her case, namely, OWCP’s June 20, 2012 decision denying modification of its
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606.

7

Id. at § 10.607(a).

8

Id. at § 10.608.

9

Eugene F. Butler, 36 ECAB 393 (1984); Bruce E. Martin, 35 ECAB 1090 (1984).

3

decision to deny authorization for medical treatment. Appellant’s request is therefore timely.
The question for determination is whether that request met at least one of the standards for
obtaining a merit review of her case.
Appellant’s request did not show that OWCP erroneously applied or interpreted a specific
point of law. The request did not advance a relevant legal argument not previously considered
by OWCP. The legal arguments advanced were the same as those advanced in the previous
request, which OWCP adjudicated on June 20, 2012. As the Board has held, evidence that
repeats or duplicates evidence already in the record has no evidentiary value and constitutes no
basis for reopening a case. A claimant may be entitled to a merit review by submitting relevant
and pertinent new evidence not previously considered by OWCP, but appellant submitted no
evidence to support her request.
Accordingly, as appellant’s reconsideration request did not meet any of the requirements
for reopening her case, the Board finds that OWCP properly denied a merit review. The Board
will affirm OWCP’s June 14, 2013 decision.
On appeal, counsel contents that OWCP’s denial of reconsideration was clearly improper,
but failed to address the standards for obtaining reconsideration. The request simply disagrees
with OWCP’s assessment of the weight of the medical evidence, either with respect to which
medical conditions are causally related to the 2005 work injury or with respect to whether
appellant refused an offer of suitable work. As to the latter, the most recent merit decision on the
issue was the Board’s December 3, 2008 decision affirming the termination of appellant’s
compensation. As the last merit decision was that of this Board and, as OWCP has not further
reviewed this issue, the matter is res judicata and is not subject to further review by the Board on
this appeal.10
CONCLUSION
The Board finds that OWCP properly denied appellant’s reconsideration request.

10

See G.R., Docket No. 13-2054 (issued March 10, 2014); see also 20 C.F.R. § 501.6(d) as to the finality of
Board decisions.

4

ORDER
IT IS HEREBY ORDERED THAT the June 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 22, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 11-1082
Issued: March 14, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 29, 2011 appellant filed a timely appeal from the February 9, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on May 14, 2010.
FACTUAL HISTORY
On May 17, 2010 appellant, then a 57-year-old letter carrier, filed a traumatic injury
claim alleging that on May 14, 2010 he lost control of his truck when he became dizzy and
struck his head while in the performance of duty. He noted that the inside of the truck was over
1

5 U.S.C. § 8101 et seq.

100 degrees. The employing establishment controverted the claim contending that appellant
provided conflicting statements with regard to the incident. It noted that he became sick while
on the job and stopped work on May 14, 2010. Emergency room records dated May 14, 2010
noted that appellant was found in his truck with complaints of dizziness and nausea. Appellant
stated that he did not know what happened but it could be the “cake he ate at work.”
In a May 17, 2010 disability certificate, Dr. Alexander G. Karpenos, a Board-certified
internist, placed appellant off work until May 26, 2010. OWCP also received a May 14, 2010
disability certificate from a nurse.
By letters dated May 28 and June 9, 2010, OWCP advised appellant that additional
factual and medical evidence was needed. It requested a physician’s opinion on causal
relationships and allotted him 30 days within which to submit the requested information.
OWCP received an unsigned May 24, 2010 progress note from Dr. Andrea Reznik, a
Board-certified neurologist, who diagnosed vertigo and headache. Dr. Reznik obtained a history
of injury that appellant was driving his truck 10 days prior when he “had a sudden onset of
vertigo.” She noted that he experienced tinnitus, diplopia, nausea and vomiting which lasted one
day with continued episodic vertigo lasting for a minute with the associated feeling of having a
hangover with some headache and imbalance. An unsigned treatment note dated June 1, 2010
listed a diagnosis of vertigo. Dr. Reznik provided a disability certificate on May 25, 2010, in
which she restricted appellant from driving until tests were complete.
A June 19, 2010 magnetic resonance imaging (MRI) scan of the brain read by Dr. Yaron
Lebovitz, a Board-certified diagnostic radiologist, was normal.
By decision dated July 9, 2010, OWCP denied appellant’s claim. It found that the
May 14, 2010 incident occurred but appellant failed to submit sufficient medical evidence in
support of his claim.
On August 6, 2010 appellant requested a telephonic hearing, which was held on
October 20, 2010. At the hearing he reiterated that May 14, 2010 was a very hot day and his
vehicle did not have air conditioning.
In an August 17, 2010 report, Dr. Reznik noted that appellant was under her care for an
injury sustained while at work. Appellant “was inside his truck when it occurred around
10[:00] a.m. Since there was no air conditioning in the truck and the door of the truck must be
closed at all times, he states that it was approximately 100 degrees inside the truck and this
caused him to suddenly become ill and develop vertigo, nausea and vomiting.” Dr. Reznik noted
that he was taken to the emergency room for heat exhaust and opined that “this case should be
considered a work[ers’] comp[ensation] case.”
In a September 28, 2010 letter, appellant repeated his belief that his injury was work
related and requested assistance with regard to garnering medical attention for his injuries.
In a report dated November 8, 2010, Dr. Sanjay Bhagia, Board-certified in emergency
medicine noted that appellant was seen on May 14, 2010 by a physician who treated him for
vertigo.
2

Emergency room records dated May 14, 2010 noted that appellant was found in his truck
with complaints of dizziness and nausea. Appellant stated that he did not know what happened
but it could be the “cake he ate at work.”
By decision dated February 9, 2011, an OWCP hearing representative affirmed the
July 9, 2010 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA2 and that an injury was sustained in the performance of duty.3 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an 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. The second
component is whether the employment incident caused a personal injury and generally this can
be established only by medical evidence.5 The employee must also submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury.6
The medical evidence required to establish causal relationship is usually rationalized
medical evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

6

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

7

Id.

3

ANALYSIS
Appellant alleged that he developed vertigo, headaches, nausea and vomiting while
performing his work duties as a letter carrier. OWCP found that the May 14, 2010 vertigo
incident happened when appellant was working in his vehicle and became dizzy and struck his
head.
The Board finds that the medical evidence is insufficient to establish that the employment
incident caused an injury. The medical reports of record do not adequately attribute appellant’s
vertigo and headaches to his employment. The medical evidence contains no reasoned
explanation of how the employment incident of May 14, 2010 caused or aggravated his vertigo.8
The May 24, 2010 report from Dr. Reznik diagnosed vertigo and headache. She obtained
a history of injury that appellant was driving his truck 10 days prior when he had a sudden onset
of vertigo. Dr. Reznik noted that he reported tinnitus, diplopia, nausea and vomiting which
lasted one day with continued episodic vertigo lasting for a minute with the associated feeling of
a hangover, headache and imbalance. However, she did not provide a firm medical diagnosis or
a reasoned opinion on causal relationship. OWCP procedures recognize that, with certain “clearcut” traumatic injuries, such as a fall from a ladder resulting in a broken leg, the record may
require only an affirmative statement by a physician to establish causal relationship. This is not
such a situation. In the absence of a medical report providing a diagnosed condition and a
reasoned opinion on causal relationship, appellant did not meet his burden of proof.9 In an
August 17, 2010 report, Dr. Reznik explained that he was inside his truck around 10:00 a.m. As
there was no air-conditioning and the door of the truck was closed, appellant estimated that it
was approximately 100 degrees inside the truck. He became ill and developed vertigo, nausea
and vomiting. Appellant was taken to the emergency room for heat exhaustion. As to causal
relationship, Dr. Reznik stated, “this case should be considered a work[ers’] comp[ensation]
case.” While she related the history obtained from appellant, she did not provide a firm
diagnosis or explain why the case should be considered under workers’ compensation. The
medical opinion of a physician supporting causal relationship does not have to reduce the cause
or etiology of a disease or condition to an absolute certainty, but neither can such opinion be
speculative or equivocal. The opinion of a physician supporting causal relationship must be one
of reasonable medical certainty that the condition for which compensation is claimed is causally
related to federal employment and such relationship must be supported with affirmative
evidence, explained by medical rationale and be based upon a complete and accurate medical
and factual background of the claimant.10
The emergency room records dated May 14, 2010, which are unidentified, attributed
appellant’s condition to “eating cake.” There is no indication who authored this record and it
appears to be a recitation of a history provided by appellant. This report does not constitute
8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
9

Deborah L. Beatty, 54 ECAB 340 (2003), citing Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3(d)(2) (June 1995).
10

Thomas A. Faber, 50 ECAB 566 (1999); Samuel Senkow, 50 ECAB 370 (1999).

4

probative medical opinion as there is no indication that the person completing the report was a
“physician” as defined in 5 U.S.C. § 8102(2). The Board has found that reports lacking proper
identification, such as unsigned treatment notes, do not constitute probative medical evidence.11
Similarly, health care providers, such as nurses, are not physicians as defined under
FECA. Thus, their opinion on causal relationship does not have probative value.12
The May 17, 2010 disability certificate from Dr. Karpenos, the June 19, 2010 report from
Dr. Lebovitz and the November 8, 2010 report from Dr. Bhagia merely placed appellant off work
and provided findings. They did not provide a firm diagnosis or offer any opinion on causal
relationship. Medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.13
The medical reports submitted by appellant do not sufficiently address how the May 14,
2010 incident at work caused or aggravated his vertigo and are reports of limited probative
value.14 The evidence is insufficient to establish that the May 14, 2010 employment incident
caused or aggravated a specific injury.15
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty on May 14, 2010.

11

R.M., 59 ECAB 690 (2008).

12

See Jane A. White, 34 ECAB 515, 518 (1983).

13

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

14

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

15

Appellant may submit evidence or argument with a written request for reconsideration within one year of this
merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

5

ORDER
IT IS HEREBY ORDERED THAT the February 9, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 14, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Case Submitted on the Record

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

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

1

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

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

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

2

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

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, CHICAGO CENTRAL
FACILITY, Chicago, IL, Employer
__________________________________________

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

Docket No. 11-2009
Issued: July 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 9, 2011 appellant, through her attorney, filed a timely appeal from a
March 28, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
affirming the pay rate on a schedule award. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award decision.
ISSUE
The issue is whether OWCP properly deducted premiums for health benefits and life
insurance from appellant’s schedule award compensation.
FACTUAL HISTORY
On October 26, 2005 appellant, then a 41-year-old part-time regular mail processor, filed
an occupational disease claim alleging that she sustained an aggravation of a prior right wrist
1

5 U.S.C. § 8101 et seq.

injury and pain and swelling of her left wrist due to repetitive work activities. OWCP accepted
the claim for tenosynovitis of the left hand and wrist and right carpal tunnel syndrome. She
stopped work on December 7, 2005.
Appellant had a previously accepted claim for right wrist sprain and right hand
tenosynovitis under OWCP File No. xxxxxx248. Under that file number, in November 2000
OWCP granted her a schedule award for a 36 percent permanent impairment of the right upper
extremity.
By decision dated March 24, 2008, OWCP reduced appellant’s compensation effective
March 24, 2009 based on its finding that she had the capacity to perform the selected position of
customer complaint clerk.2 It deduced health benefit premiums of $145.52, basic life insurance
premiums of $14.40 and optional life insurance premiums of $41.40 from her wage-earning
compensation payments.
In a decision dated July 21, 2009, OWCP granted appellant a schedule award for a one
percent permanent impairment of the right upper extremity and a three percent permanent
impairment of the left upper extremity. Following a preliminary review, by decision dated
October 29, 2009, an OWCP hearing representative set aside the July 21, 2009 decision and
remanded the case for appellant’s upper extremity claims to be combined, for an OWCP medical
adviser to recalculate the extent of impairment and for OWCP to consider her prior 36 percent
right upper extremity award.
By decision dated January 20, 2010, OWCP granted appellant a schedule award for a 12
percent permanent impairment of the left upper extremity.3 It noted that it had already paid an
award for a four percent impairment of the left upper extremity.
In a decision dated July 8, 2010, the hearing representative vacated the January 20, 2010
decision and remanded the case for OWCP to combine the medical records for all of appellant’s
claims and further develop the medical evidence.
By decision dated September 16, 2010, OWCP granted appellant a schedule award for an
additional seven percent impairment of the left upper extremity. The period of the award ran for
21.84 weeks at a pay rate of $642.00 per week after cost-of-living adjustments. OWCP adjusted
the starting date for the schedule award to August 29, 2010, noting that appellant received
compensation for disability from May 21 to August 28, 2010.
A computerized payment sheet dated September 14, 2010 indicated that OWCP stopped
paying appellant for her loss of wage-earning capacity (LWEC) as of August 29, 2010 and began
2

In an order dated March 6, 2009, the Board dismissed appellant’s appeal of a February 13, 2008 decision after
finding that OWCP had not issued a final decision on that date. Order Dismissing Appeal, Docket No. 08-1083
(issued March 6, 2009).
3

OWCP noted that it had previously paid appellant for a one percent right upper extremity impairment and a
three percent left upper extremity impairment. It added the one percent right upper extremity impairment paid
erroneously to the three percent left upper extremity paid to show a previously awarded four percent left upper
extremity impairment.

2

paying her compensation for the schedule award. OWCP paid her gross compensation of
$2,568.00 per week. From this amount, it deduced health benefit premiums of $183.30 per
week, basic life insurance premiums of $14.40 per week and optional life insurance premiums of
$41.40 per week, which yielded net compensation of $2,328.90. OWCP paid her net schedule
award compensation of $2,328.90 for the periods August 29 to September 24, 2010,
September 26 to October 23, 2010, October 24 to November 20, 2010, November 21 to
December 18, 2010 and December 19, 2010 to January 15, 2011. It further paid appellant gross
compensation for her schedule award from January 16 to 28, 2011 of $1,181.22, from which it
deducted $106.70 for health benefits, $6.69 for basic life insurance and $19.22 for optional life
insurance, for net compensation of $1,048.61.
On September 24, 2010 appellant, through her attorney, requested a telephone hearing.
At the telephonic hearing, held on January 14, 2011, counsel indicated that she was not appealing
the percentage of award but instead questioning the amount that she received. The attorney
related that appellant should have received $642.00 per week for 21.84 weeks, for a total of
$14,021.28. Instead, based on what appellant had received to date, OWCP would pay her around
$3,000.00 less than $14,021.28.
By decision dated March 28, 2011, the hearing representative affirmed the September 16,
2010 decision. He found that OWCP properly paid compensation on the September 16, 2010
schedule award. The hearing representative determined that appellant would receive gross
compensation payments of $14,021.28 but that deductions for basic and optional life insurance
and health benefits would reduce the net total payment to $12,693.11. He concluded that “the
total schedule award due was paid, with the apparent difference being the deductions for health
and life insurance deductions.” The hearing representative advised that any error in the amount
deducted for health and life insurance premiums should be raised before OWCP.
LEGAL PRECEDENT
For all claims under FECA, compensation is to be based on the pay rate as determined
under section 8101(4), which defines monthly pay as: “[The] monthly pay at the time of injury
or the monthly pay at the time disability begins or the monthly pay at the time compensable
disability recurs, if the recurrence begins more than six months after the injured employee
resumes regular full-time employment with the United States, whichever is greater.”4
The Board has held that rate of pay for schedule award purposes is the highest rate which
satisfies the terms of section 8101(4).5
OWCP procedures manual provides that “The inability to return to duty is not a condition
of receiving compensation for schedule awards. Therefore, it must be determined whether the
claimant is or was unable to ‘return to duty’ during the period of the schedule award in order for
life insurance eligibility to continue.”6 Additionally, “claimants who continue to receive
4

5 U.S.C. § 8107.

5

See Robert A. Flint, 57 ECAB 369 (2006).

6

Federal (FECA) Procedure Manual, Part 5 -- Benefit Payments, Life Insurance, 5.401.6(b) (August 2004).

3

compensation for even a minor LWEC do not lose [life insurance] coverage, even though they
are able to work part-time or to perform light-duty work.”7
Regarding health benefits, OWCP procedure manual provides:
“In most claims where schedule awards are being paid, the claimant is either
working or receiving an annuity from [Office of Personnel Management] (OPM).
Therefore, although OWCP is paying compensation, the health benefits
withholdings are the responsibility of the employing agency or OPM.”8
***
“Claimants receiving compensation benefits for partial disability remain entitled
to [Federal Employee’ Health Benefits] coverage….”9
ANALYSIS
OWCP accepted that appellant sustained tenosynovitis of the right and left hand, right
carpal tunnel syndrome and right wrist sprain due to work injuries. In a decision dated
March 24, 2008, it reduced her compensation beginning March 24, 2009 after determining that
she could work as a customer complaint clerk.
Appellant received schedule awards totaling a 36 percent permanent impairment of the
right upper extremity and a 12 percent permanent impairment of the left upper extremity. By
decision dated September 16, 2010, OWCP granted her a schedule award for an additional seven
percent impairment of the left upper extremity. It determined that the award should run for 21.84
weeks with a pay rate of $642.00 per week and compensation every four weeks of $2,328.90.
Appellant, through her attorney, concurred with the amount of the impairment rating but
questioned why her compensation every four weeks was less than $642.00 per week multiplied
by the number of weeks of compensation. The record indicates that beginning August 29, 2010
OWCP stopped her payments for partial disability based on her loss of wage-earning capacity
and began paying her compensation for a schedule award. It calculated that appellant was
entitled to $2,568.00 in gross compensation. From this amount OWCP deduced $183.30 in
health benefits premiums, $14.40 in basic life insurance premiums and $41.40 for optional life
insurance premiums, for total net compensation of $2,328.90. For each period August 29 to
September 25, 2010, September 26 through October 23, 2010, October 24 to November 20,
2010, November 21 to December 18, 2010, December 19, 2010 through January 15, 2011,
OWCP paid appellant $2,568.00 in gross compensation and $2,328.90 in net compensation.
From January 16 through 28, 2011, OWCP paid appellant gross compensation of $1,181.22 and
net compensation of $1,048.61 after deductions for health benefits premiums of $106.70, basic

7

Id. at 5.401.5(c).

8

Id. at 5.400.3(c).

9

Id. at 5.400.6(e).

4

life insurance premiums of $6.69 and optional life insurance premiums of $19.22. It thus paid
her a total amount of gross compensation of $14,021.22 and net compensation of $12,693.11.
In paying schedule award compensation OWCP will not deduct life insurance premiums
unless a claimant is unable to return to duty during the period of the award.10 Life insurance
coverage also continues for claimants who have been receiving compensation under a LWEC.11
Health benefits are not deducted from schedule awards if the claimant is working or receiving
benefits through OPM. Health benefit coverage continues for claimants receiving compensation
for partial disability.12
Appellant received compensation beginning March 24, 2009 for partial disability based
on the March 24, 2008 wage-earning capacity determination. An employee cannot concurrently
receive compensation under a schedule award and compensation for wage loss.13 In paying
appellant compensation for her loss of wage-earning capacity, OWCP deducted premiums for
health benefits, basic life insurance and optional life insurance. It stopped paying appellant
compensation for partial disability and began paying her for her schedule award on
August 29, 2010. As she had been receiving compensation from OWCP based on an LWEC
prior to her schedule award, she remained entitled to health and life insurance benefits. OWCP,
consequently, deducted premiums for health benefits and life insurance as her coverage
continued during the period of the schedule. The Board finds that it thus properly paid
appellant’s net compensation every four weeks of $2,328.90 for the schedule award after
deducting the premiums for health benefits and life insurance.
CONCLUSION
The Board finds that OWCP properly deducted premiums for health benefits and life
insurance from appellant’s schedule award compensation.

10

Id. at 5.401.6(b).

11

Id. at 5.401.5(c).

12

Supra note 10.

13

See S.W., Docket No. 10-2071 (issued July 11, 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a)(3) (January 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6