United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, BUSTLETON
STATION, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0530
Issued: December 21, 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 January 27, 2016 appellant, through counsel, filed a timely appeal from October 27
and November 30, 2015 merit decisions and a December 4, 2015 nonmerit decision of the Office
of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’
2
Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish more than
one percent permanent impairment of the left leg, for which she received a schedule award;
(2) whether OWCP properly found a $14,933.39 overpayment of compensation; (3) whether it
properly denied waiver of recovery of the overpayment; and (4) whether OWCP properly denied
appellant’s request for further merit review of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal counsel contends that the weight of the medical evidence regarding appellant’s
permanent impairment rests with the report of an attending physician. Alternatively, he contends
that there is an unresolved conflict in the medical evidence between two OWCP physicians.
Counsel, thus, contends that it was inappropriate for OWCP to declare an overpayment related to
appellant’s schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board with respect to the termination of
compensation benefits.3 In a January 12, 2015 decision, the Board reversed a January 29, 2014
OWCP decision terminating appellant’s wage-loss compensation and medical benefits effective
July 29, 2013. The Board found that the medical opinion of Dr. William H. Simon, a Boardcertified orthopedic surgeon and the impartial medical specialist, was not rationalized on the
issue of whether appellant had any continuing residuals and disability causally related to her
accepted employment-related injuries. The relevant facts are set forth below.
OWCP accepted that on January 8, 2009 appellant, then a 49-year-old letter carrier,
sustained a peroneal tendon strain of the left ankle and subluxation of the left peroneal tendon
when she rolled her left ankle on broken raised cement in a driveway while delivering mail. It
authorized arthroscopic left ankle surgery, a left peroneal tendon tenodesis with peroneal groove
deepening, which was performed on April 1, 2009. On October 26, 2009 appellant returned to
light-duty work, two hours a day, three days a week. In a November 21, 2011 medical report,
Dr. Jamal Ahmad, a Board-certified orthopedic surgeon, released her to return to full-time fullduty work.
In a February 9, 2012 decision, OWCP accepted a recurrence of disability on
November 21, 2011 and paid wage-loss compensation benefits. It also expanded the acceptance
of appellant’s claim to include a sprain, other joint derangement, plantar fibromatosis, and other
enthesopathy and tarsus of the left ankle.
On March 27, 2014 OWCP received a February 6, 2014 report from Dr. Nicholas P.
Diamond, an attending Board-certified osteopath. Dr. Diamond noted a history of injury,
reviewed appellant’s medical records, and provided examination findings. He diagnosed
(derivative) right knee sprain and retropatellar chondromalacia secondary to gait abnormality,
post-traumatic left peroneal tendon instability with intrasheath and peroneal groove subluxation,
status post left peroneal tendon tenodesis with peroneal groove deepening performed on April 1,
2009, and residual left plantar fasciitis. Dr. Diamond opined that the January 8, 2009 work
3

Docket No. 14-1275 (issued January 12, 2015).

2

injury was the competent producing factor of his findings. He classified appellant’s peroneal
tendon ankle strain with significant weakness as class 1 with a default impairment value of 10
percent under Table 16-2, page 501 of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). Dr. Diamond found grade
modifiers two for Functional History Adjustment (GMFH), Physical Examination (GMPE), and
Clinical Studies (GMCS) under Table 16-6, page 516, Table 16-7, page 517, and Table 16-8,
page 519, respectively. He applied the net adjustment formula of (GMFH -- CDX) + (GMPE -CDX) + (GMCS -- CDX), or = (2-1) + (2-1) + (2-1), which resulted in a 3 grade or 13 percent
impairment of the left leg. Dr. Diamond classified appellant’s right knee strain as class 1 with a
default value of two percent under Table 16-3, page 509. He found a grade modifier 2 for
GMFH and grade modifiers one for GMPE and GMCS. Dr. Diamond applied the net adjustment
formula and found that appellant had two percent right leg impairment. He found that she
reached maximum medical improvement (MMI) on the date of his examination.
On March 31, 2014 appellant filed a claim for a schedule award (Form CA-7). On
April 9, 2014 OWCP referred the case to an OWCP medical adviser.
In an April 24, 2014 report, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon
and an OWCP medical adviser, reviewed Dr. Diamond’s report and the medical record. He
advised that Dr. Diamond’s classification of appellant’s tendinitis and ruptured peroneal tendons
as class 1 with a default impairment of 10 percent was not acceptable as it was not verified by
other physicians. Dr. Berman classified her peroneal tendon strain as class 1 under Table 16-2,
page 501. He found grade modifiers of 2 for GMFH, GMPE, and GMCS under Table 16-6, page
516, Table 16-7, page 517, and Table 16-8, page 519, respectively. Dr. Berman applied the net
adjustment formula and found that appellant had seven percent permanent impairment of the left
leg.
By decision dated July 9, 2014, OWCP granted appellant a schedule award for seven
percent impairment of the left leg, for a total of $17,436.83. The award ran from February 6 to
June 27, 2014. OWCP found that appellant was not entitled to a right leg schedule award as her
claim had not been accepted for right knee strain.
In a July 15, 2014 letter, appellant, through counsel, requested an oral hearing before an
OWCP hearing representative, which was held on November 24, 2014.4
By decision dated January 27, 2015, an OWCP hearing representative affirmed in part
and set aside in part the July 9, 2014 decision. He found that Dr. Diamond did not provide a
rationalized medical opinion to support that appellant sustained any work-related right leg
impairment. The hearing representative remanded the case for referral of her to a second opinion
physician for an examination and an opinion on the extent of her left leg impairment under the
sixth edition of the A.M.A., Guides.
On February 12, 2015 OWCP referred appellant, together with a statement of accepted
facts (SOAF) and the medical record, to Dr. Robert A. Smith, a Board-certified orthopedic
4

By letter dated January 19, 2015, counsel informed OWCP that appellant had retired from the employing
establishment and she was receiving retirement benefits from the Office of Personnel Management.

3

surgeon, for a second opinion. In a February 27, 2015 report, Dr. Smith noted a history of injury
and appellant’s treatment. On examination of the left calf, ankle, and foot, he reported a wellhealed scar laterally over the peroneal tendons. Appellant stated that the scar was sensitive to
touch, but Dr. Smith found no apparent keloiding or redness. Active measured range of motion
of the ankle and subtalar joints was 20 degrees dorsiflexion (x 3), 40 degrees of plantar flexion (x
3), 25 degrees of inversion (x 3), and 15 degrees of eversion (x 3), respectively. Dr. Smith found
no ankle instability. Motor strength was 5/5 in all muscle groups controlling the foot and ankle.
There was no subluxation of the peroneal tendons with ankle motion. The sole of the foot was
normal to palpation without nodularity or palpable fascial defect. There was no atrophy in the
calves with each measuring 34 centimeters in circumference. Dr. Smith related that the
examination was consistent with minimal palpatory findings (sensitive surgical scar). Using
Table 16-2, Foot and Ankle Regional Grid, page 501 of the sixth edition of the A.M.A., Guides,
he classified appellant’s peroneal tendon strain Class of Diagnosis (CDX) as class 1 injury with a
default impairment value of one percent in a range of zero to two percent. Dr. Smith also
classified her plantar fasciitis as class 1 with a default value of one percent in a range of zero to
two percent under Table 16-2. He found a grade modifier zero for GMFH under Table 16-6,
page 516. Dr. Smith found grade modifiers one for GMPE and GMCS under Table 16-7, page
517 and Table 16-8, page 519, respectively. He applied the net adjustment formula of (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX), or = (0-1) + (1-1) + (1-1), which resulted in a -1
grade adjustment that required movement of the impairment rating one column to the left.
Dr. Smith then combined the one percent impairment for class 1, grade B peroneal tendon strain
with the one percent impairment for class 1, grade B plantar fasciitis, totaling two percent
impairment of the left leg. He opined that appellant reached MMI on September 6, 2012, the
date Dr. Norman B. Stempler, an orthopedic surgeon, released her to full-duty work.5
On April 24, 2015 Dr. Morley Slutsky, an OWCP medical adviser Board-certified in
occupational medicine, reviewed the medical record, including Dr. Smith’s February 27, 2015
report. He noted Dr. Smith’s diagnosis of left foot plantar fasciitis and related that there were no
palpatory findings of this condition at MMI and; therefore, there was no lower extremity
impairment due to this condition. Dr. Slutsky indicated that a January 19, 2009 left ankle and
foot magnetic resonance imaging (MRI) scan was normal and did not show plantar fasciitis. A
March 9, 2009 left ankle and foot sonography also did not demonstrate plantar fasciitis. As such,
Dr. Slutsky concluded that appellant did not meet the criteria to rate left foot plantar fasciitis
because at MMI there were no significant palpatory or radiographic findings of this condition.
He noted that the diagnosis-based impairment (DBI) was the preferred method for rating
impairment under the sixth edition of the A.M.A., Guides. Dr. Slutsky found that the most
impairing diagnosis for rating appellant’s impairment was her left ankle peroneal strain with
normal range of motion as calculated under Table 16-22 and Table 16-20, page 549. He
classified this diagnosis as a class 1 impairment. Dr. Slutsky assessed a grade modifier zero for
GMFH under Table 16-6, page 516, as appellant still had symptoms in the ankle joint and there
was no documentation of an antalgic gait requiring the use of a single gait aid or external orthotic
device for stabilization and no positive Trendelenburg test. He assessed a grade modifier one for
5

The Board notes that it appears that Dr. Smith inadvertently noted that Dr. Stempler had released appellant to
return to full-duty work on September 12, 2012 rather than September 6, 2012 as the record contains a September 6,
2012 duty status report (Form CA-17) in which Dr. Stempler released appellant to return to full-duty work with no
restrictions on that date.

4

GMPE under Table 16-7, page 517, as range of motion was used to place appellant into the
correct diagnostic class and, therefore, it could not be used again to assign a GMCS. Dr. Slutsky
noted that there was tenderness to palpation and no other documented objective deficits. He
found that a grade modifier for GMCS was not applicable under Table 16-8, page 519, according
to section 16.3C, page 518, because there were no clinical studies taken at the time of MMI.
Dr. Slutsky applied the net adjustment formula which resulted in a -1 grade adjustment, grade B,
or one percent impairment of the left lower extremity. He concluded that the date of MMI was
February 27, 2015, the date of Dr. Smith’s examination.
In a May 29, 2015 decision, OWCP granted appellant a schedule award for one percent
impairment of the left lower extremity, for a total payment of $2,503.44. The period of the
award ran from February 27 to March 19, 2015. OWCP found that the weight of the medical
evidence rested with Dr. Slutsky’s April 24, 2015 report.
By letter dated June 9, 2015, appellant, through counsel, requested an oral hearing before
an OWCP hearing representative.
In a notice dated July 10, 2015, OWCP advised appellant of its preliminary determination
that an overpayment in the amount of $14,933.39 for the period February 6 to June 27, 2014 was
created in her case, as she received a schedule award for seven percent impairment of the left leg,
but the weight of the medical evidence established only one percent impairment of the left leg. It
calculated the overpayment by noting that appellant was paid $17,436.83 in schedule award
compensation from February 6 to June 27, 2014 for seven percent impairment of the left lower
extremity while she was only entitled to $2,503.44 in compensation for the period February 27 to
March 19, 2015 for one percent impairment. OWCP then subtracted $2,503.44 from $17,436.83,
which resulted in an overpayment of $14,933.39 for the period February 6 to June 27, 2014. It
found that appellant was not at fault in creating the overpayment because she was not aware or
could not have been reasonably aware that it had incorrectly paid schedule award compensation.
OWCP requested that she complete an enclosed overpayment recovery questionnaire (Form
OWCP-20) and submit supporting financial documents. It also notified appellant that, within 30
days of the date of the letter, she could request a telephone conference, a final decision based on
the written evidence, or a prerecoupment hearing.
On July 14, 2015 counsel requested a prerecoupment hearing before an OWCP hearing
representative, which was held on September 14, 2015.
By decision dated October 27, 2015, an OWCP hearing representative affirmed the
May 29, 2015 decision finding no additional impairment and finalized the overpayment of
$14,933.39. She denied waiver of recovery of the overpayment as appellant had failed to submit
any supporting financial documentation. The hearing representative requested immediate
repayment of the overpayment.
In a November 24, 2015 decision, OWCP again denied waiver of recovery of the
$14,933.39 overpayment based on appellant’s failure to submit any supporting financial
documentation. It directed repayment of the entire amount within 30 days.

5

By letter dated November 25, 2015, counsel requested reconsideration of the hearing
representative’s October 27, 2015 decision. He contended that appellant could not repay the
overpayment based on an accompanying Form OWCP-20, which indicated that her monthly
expenses exceeded her monthly income.
In a November 30, 2015 decision, OWCP rescinded the November 24, 2015 decision as
the overpayment issue had already been addressed in the October 27, 2015 decision, which
served as a final decision.
By decision dated December 4, 2015, OWCP denied further merit review of appellant’s
claim. It found that the evidence submitted was insufficient to warrant review of its prior
decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA6 and its implementing federal regulations7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions, and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function, or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.8 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.9 For decisions issued after
May 1, 2009, the sixth edition is used to calculate schedule awards.10
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the ankle, the relevant portion of the leg (foot) for the
present case, reference is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page
501.11 After the Class of Diagnosis (CDX) is determined from the Foot and Ankle Regional
Grid (including identification of a default grade value), the net adjustment formula is applied
using the grade modifier for functional history, grade modifier for physical examination, and
grade modifier for clinical studies. The net adjustment formula is (GMFH - CDX) + (GMPE CDX) + (GMCS - CDX).12 Under Chapter 2.3, evaluators are directed to provide reasons for

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

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

9

Id.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); id., Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
11

See A.M.A., Guides 501-07 (6th ed. 2009).

12

Id. at 515-22.

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their impairment rating choices, including choices of diagnoses from regional grids and
calculations of modifier scores.13
Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities,
provides that diagnosis-based impairment is the primary method of calculation for the lower limb
and that most impairments are based on the diagnosis-based impairment where impairment class
is determined by the diagnosis and specific criteria as adjusted by the grade modifiers for
functional history, physical examination, and clinical studies. Chapter 16 further provides:
“Alternative approaches are also provided for calculating impairment for
peripheral nerve deficits, complex regional pain syndrome, amputation, and range
of motion. Range of motion is primarily used as a physical examination
adjustment factor and is only used to determine actual impairment values when it
is not possible to otherwise define impairment.”14
ANALYSIS -- ISSUE 1
OWCP accepted that on January 8, 2009 appellant sustained a peroneal tendon strain,
sprain, other joint derangement, plantar fibromatosis, and other enthesopathy, and tarus of the
left ankle, and subluxation of the left peroneal tendon in the performance of duty with
arthroscopic left ankle surgery performed on April 1, 2009. On July 9, 2014 it issued a schedule
award for seven percent permanent impairment of the left leg. However, in a subsequent
decision, an OWCP hearing representative directed further medical development regarding
appellant’s permanent impairment. Following such development, OWCP issued a May 29, 2015
schedule award for one percent permanent impairment of the left lower extremity. This decision
was affirmed by an OWCP hearing representative in an October 27, 2015 decision.
The Board finds that there is an unresolved conflict as to the impairment related to
appellant’s left lower extremity between appellant’s treating physician and OWCP’s referral
physician. In a February 6, 2014 report, Dr. Diamond, an attending physician, opined that
appellant had 13 percent impairment of the left lower extremity. Utilizing Table 16-2, page 501
of the sixth edition of the A.M.A., Guides, he classified her peroneal tendon left ankle strain with
significant weakness as class 1 with a default value of 10 percent. Dr. Diamond assigned grade
modifiers of 2 for GMFH, GMPE, and GMCS under Table 16-6, page 516, Table 16-7, page
517, and Table 16-8, page 519, respectively. Using the net adjustment formula, he determined
that appellant had a 3 grade or 13 percent impairment of the left leg. By contrast, in a
February 27, 2015 report, Dr. Smith, an OWCP referral physician, opined that appellant had two
percent impairment of the left lower extremity. Utilizing Table 16-2, he classified her peroneal
tendon left ankle strain as class 1 with a default value of one percent. Dr. Smith utilized the
same table to determine that appellant’s plantar fasciitis was class 1 with a default value of one
percent. He assigned a grade modifier 0 for GMFH and grade modifiers 2 for GMPE and GMCS
under Table 16-6, page 516, Table 16-7, page 517, and Table 16-8, page 519, respectively.
Dr. Smith noted that the net adjustment formula resulted in a change to B or one percent
13

Id. at 23-28.

14

Id. at 497, 544-53.

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impairment for each condition noted above. He then determined that appellant had two percent
impairment of the left lower extremity by combining the impairment ratings for the peroneal
tendon strain and plantar fasciitis.
If there is disagreement between OWCP’s referral physician and appellant’s physician,
OWCP will appoint a third physician who shall make an examination.15 For a conflict to arise,
the opposing physicians’ viewpoints must be of virtually equal weight and rationale.16 The
Board finds that the two medical opinions of Dr. Diamond and Dr. Smith are of equal weight.
The dispute between these physicians centers on their physical findings, which ostensibly
supported their respective opinions. Accordingly, there was an unresolved conflict in medical
opinion regarding the extent of appellant’s left lower extremity impairment.
Because there is an unresolved conflict in medical opinion, pursuant to 5 U.S.C.
§ 8123(a), the case will be remanded to OWCP for referral of appellant, together with the
medical record and an updated SOAF, to an appropriate Board-certified specialist for an
impartial medical examination to determine the extent and degree of appellant’s left lower
extremity permanent impairment in accordance with the sixth edition of the A.M.A., Guides.
After such further development as OWCP deems necessary, it shall issue a de novo decision.
ISSUES 2, 3 and 4
As the case is not in posture for a decision regarding the appropriate percentage of
appellant’s left lower extremity permanent impairment, the finding of a $14,933.39 overpayment
of compensation and denial of waiver of recovery of the overpayment must be set aside. It is
premature for the Board to address the issue of any overpayment of compensation until the
proper percentage of permanent impairment is determined.17 In addition, in view of the Board’s
disposition of this case, the issue of whether OWCP properly denied merit review under section
8128 is moot.18
CONCLUSION
The Board finds that this case is not in posture for decision regarding the extent of
appellant’s left lower extremity impairment due to an unresolved conflict in the medical opinion
evidence. The issues of overpayment, waiver, and nonmerit review are moot.

15

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

16

Darlene R. Kennedy, 57 ECAB 414 (2006).

17

See Lee Z. Watson, Docket No. 04-2176 (issued March 1, 2005) (finding that when the decision providing the
basis for the overpayment is reversed or set aside, the resulting overpayment issues are moot).
18

Counsel’s arguments on appeal are also moot in light of the Board’s disposition of this case.

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ORDER
IT IS HEREBY ORDERED THAT the December 4, November 30, and October 27,
2015 decisions of the Office of Workers’ Compensation Programs are set aside and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: December 21, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, MANHATTANVILLE
STATION, New York, NY, Employer
__________________________________________

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

Docket No. 08-1417
Issued: November 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 15, 2008 appellant filed a timely appeal of the March 19, 2008 merit decision of
the Office of Workers’ Compensation Programs, finding that she did not sustain an injury while
in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has established that she sustained a right heel injury while
in the performance of duty.
FACTUAL HISTORY
On December 17, 2007 appellant, then a 51-year-old sales and service distribution
associate, filed a traumatic injury claim alleging that on October 1, 2007 she hurt her right leg
and the ball of her foot due to prolonged standing at work. In a December 18, 2007 statement,
she related that she stood on her feet from 5:00 a.m. to 12:00 p.m. which resulted in heel spurs as
confirmed by x-rays.

In letters dated December 22, 2007, the employing establishment controverted the claim.
It contended that appellant failed to submit evidence establishing that she sustained a medical
condition causally related to her federal employment. The employing establishment also
contended that her claim was not timely filed as she waited 79 days before filing it. It requested
that the Office deny continuation of pay and consider the claim as an occupational disease claim.
By letter dated January 31, 2008, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It requested additional factual and medical evidence,
including a rationalized medical report from an attending physician which described her
symptoms, results of examination and tests, diagnosis, treatment provided, the effect of treatment
and opinion with medical reasons on whether exposure or incidents in appellant’s federal
employment contributed to her condition. The Office advised appellant that it would adjudicate
her claim as an occupational disease. It explained that the condition she described occurred over
a period longer than one workday or shift.
In a February 16, 2008 letter, appellant further described her work duties. She worked
from 5:00 a.m. until 1:00 p.m., Monday through Saturday. Appellant was off work on Tuesday
and Sunday. She stood for seven and one-half hours daily while boxing mail, throwing off
parcels and preparing carrier routes. Appellant related that the flooring was concrete and it did
not provide sufficient cushion. Over a period of time, she developed plantar fasciitis as a result
of standing while performing her work duties.
In an October 16, 2007 medical note, Dr. Richard J. Shepard, a Board-certified family
practitioner, stated that appellant had been under his care for foot pain. He stated that she could
not stand for long periods of time until she was evaluated by a podiatrist.
An October 23, 2007 disability certificate from the podiatry clinic of North General
Hospital contained an illegible signature. It stated that appellant was excused from excessive
standing due to painful feet.
In reports dated November 6, 2007 and February 14, 2008, R. Giorgini, a nurse
practitioner, stated that appellant sustained right heel pain secondary to plantar fasciitis.
Appellant was unable to work for three to five days due to chronic condition and was referred to
a physical therapist. She could subsequently return to light-duty work with restrictions.
By decision dated March 19, 2008, the Office denied appellant’s claim. It found the
medical evidence insufficient to establish that appellant’s right foot condition was causally
related to the established work-related duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
1

5 U.S.C. §§ 8101-8193.

2

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.2 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. 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.4 Neither the fact that appellant’s condition became apparent during a
period of employment nor her belief that the condition was caused by her employment, is
sufficient to establish a causal relationship.5
ANALYSIS
The Office accepted that appellant performed the work duties of a sales and service
distribution associate as alleged. The Board finds, however, that the medical evidence submitted
is insufficient to establish that her diagnosed right foot condition was caused or aggravated by
her work-related duties.
Dr. Shepard’s October 16, 2007 medical report note that appellant suffered from foot
pain and that she could not stand for long periods of time. He did not provide a firm diagnosis of
what caused appellant’s pain or explain how her symptoms related to her duties as a distribution
associate. Dr. Shepard did not provide any medical rationale explaining how or why appellant’s
foot pain was caused or aggravated by her accepted employment duties. His report is insufficient
to establish appellant’s claim.
The October 23, 2007 disability certificate from the North General Hospital podiatry
clinic with an illegible signature stated that appellant was excused from excessive standing, due
2

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Gary J. Watling, 52 ECAB 357 (2001).

4

Solomon Polen, 51 ECAB 341 (2000).

5

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

3

to painful feet. As the signature cannot be verified as that of a physician, the October 23, 2007
medical note is of no probative value.6
The medical notes of R. Giorgini, a nurse practitioner, also have no probative value in
establishing that appellant’s claim as a nurse practitioner is not a “physician” as defined under
the Act.7
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a right heel condition causally related to the accepted factors of
her federal employment as a sales and service distribution associate. Appellant did not meet her
burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a right heel injury
while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 19, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2). See Merton J. Sills, 572,
575n.3 (1988).
7

See 5 U.S.C. § 8101(2); Paul Foster, 56 ECAB 208 (2004); Thomas R. Horsfall, 48 ECAB 180 (1996).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Glouster, OH, Employer
__________________________________________

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)

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

Docket No. 09-353
Issued: September 3, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from an October 28, 2008 decision
of the Office of Workers’ Compensation Programs denying wage-loss compensation
commencing July 18, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established any employment-related disability
commencing July 18, 2006.
FACTUAL HISTORY
This case was before the Board on a prior appeal.1 By decision dated July 11, 2008, the
Board remanded the case for further development of the medical evidence. The Board found that
1

Docket No. 08-687 (issued July 11, 2008). Appellant’s claim was accepted by the Office for degenerative disc
disease of the lumbar spine, lumbar facet arthropathy and lumbar radiculitis.

the April 20, 2007 report of Dr. Alex Minard, an attending orthopedic surgeon, was sufficient to
require further development. The history of the case as provided in the prior Board decision is
incorporated herein by reference.
On remand, the Office referred appellant to Dr. Sushil Sethi, an occupational medicine
specialist. In a report dated September 16, 2008, Dr. Sethi provided a history and results on
examination. He opined that appellant did not have an aggravation of degenerative disc disease
causally related to employment factors. Dr. Sethi stated that there were no x-rays or physical
findings to show an increase in physical findings or structural changes to meet the definition of
an aggravation. He noted that a magnetic resonance imaging (MRI) scan showed mild arthritic
changes, not significant degenerative disc disease. Dr. Sethi further stated that the accepted
condition of lumbar radiculitis was self-limiting and normally resolved in three to six weeks, and
appellant’s condition had resolved long ago.
By letter dated October 6, 2008, the Office asked Dr. Minard to review Dr. Sethi’s report
and provide an opinion regarding disability. In a report dated October 13, 2008, Dr. Minard
reported that appellant’s “MRI [scan] was not extremely impressive. [Appellant] did have some
early degenerative dis[c] disease as well as swelling and early arthropathy in the facet joints at
the two lower levels.” He considered the aggravation to be temporary rather than permanent.
Dr. Minard further stated, “I do think that her activities with the [employing establishment] did
aggravate a preexisting degenerative condition[;] the repetitive motion and lifting created strain
on the lumbar spine. Although it is true that lumbar radiculitis is often self-limiting that
normally resolves itself within [three to six] weeks as Dr. Sethi opined, this is not universally
true. I treat a number of patients who have radicular pain on a chronic basis.” Dr. Sethi stated
that when he saw appellant a year ago she could do light duty with lifting of 10 pounds regularly
and 20 pounds occasionally.
By decision dated October 28, 2008, the Office denied appellant’s claims for
compensation commencing July 18, 2006. It found the weight of the evidence was represented
by Dr. Sethi.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make the examination.2 The
implementing regulation states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser, the Office shall appoint a third physician to make an examination. This is
called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has no prior connection with the case.3

2

5 U.S.C. § 8123.

3

20 C.F.R. § 10.321 (1999).

2

ANALYSIS
As the Board noted in its prior decision, Dr. Minard provided a probative medical opinion
that appellant was disabled as of July 18, 2006 due to an employment-related aggravation of
degenerative disc disease. In an October 13, 2008 report, Dr. Minard reiterated that he believed
appellant sustained an employment-related aggravation that was disabling. While Dr. Sethi, the
second opinion physician, was not specifically asked for an opinion as to disability commencing
July 18, 2006, he clearly disagreed with Dr. Minard. He found no employment-related
aggravation, and he believed the accepted lumbar radiculitis had resolved.
Since there is a disagreement between an attending physician and a second opinion
referral physician, the Board finds a conflict was created under 5 U.S.C. § 8123(a). To resolve
the conflict, the case will be remanded for referral to a referee physician. The referee physician
should be asked to provide an opinion as to whether there was an employment-related disability
on or after July 18, 2006. After such further development as the Office deems necessary, it
should issue an appropriate decision.
CONCLUSION
The Board finds a conflict in the medical evidence exists and the case will be remanded
for resolution of the conflict pursuant to 5 U.S.C. § 8123(a).
ORDER
IT IS HEREBY ORDERED THAT the decision dated October 28, 2008 be set aside
and the case remanded to the Office for further proceedings consistent with this decision.
Issued: September 3, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Akron, OH, Employer
__________________________________________

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

Docket No. 17-0953
Issued: December 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 30, 2017 appellant, through counsel, filed a timely appeal from a February 28,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant forfeited her entitlement to compensation from
October 24, 2011 to October 14, 2012 as she knowingly failed to report earnings from
1

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

5 U.S.C. § 8101 et seq.

employment; (2) whether she received an overpayment of $31,600.83 as a result of the forfeiture;
and (3) whether OWCP properly found that appellant was at fault in the creation of the
overpayment and thus not entitled to waiver of recovery of the overpayment.
FACTUAL HISTORY
On August 9, 2011 appellant, then a 45-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her head, left shoulder, and neck when a
shelf fell on her head. OWCP accepted the claim for a head contusion and left shoulder sprain.
It paid appellant compensation for total disability beginning October 24, 2011 as the employing
establishment did not have work available with her restrictions.
Appellant underwent a left shoulder acromioplasty and distal claviculectomy on
April 5, 2012. OWCP paid her compensation on the periodic rolls, effective July 29, 2012.
On October 14, 2012 appellant signed a Form EN1032 regarding her earnings and
employment activity for the preceding 15-month period. The form advised that she must report
all employment for which she received a salary, wages, income, sales commissions, piecework,
or any payment of any kind, and that she must also report self-employment or involvement in
any business enterprise in the past 15 months. It further informed appellant that fraudulently
concealing or failing to report income could subject her to criminal prosecution. On the form,
she marked an “x” rather than responding “yes” or “no” to the questions of whether she worked
for an employer or was self-employed during the past 15 months.
In an amended Form EN1032 signed October 25, 2012, appellant indicated that she did
not work for an employer and was not self-employed or involved in a business enterprise during
the previous 15-month period. In response to the question on the form that asked whether, if she
had answered “no” to questions asking whether she was employed or self-employed, she had
been “unemployed for all periods during the past 15 months,” she responded that she did not
understand the question.
In a July 31, 2015 report of investigation, the employing establishment’s Office of the
Inspector General (OIG) advised that appellant certified on an October 2012 Form CA-1032 that
she was not employed even though she worked as an outside sales agent with Roy’s Stow Travel
Agency during that period, booking 15 trips and earning around $1,926.00 in commissions. It
advised that she made travel arrangements for 15 trips that left between July 14, 2011 and
October 14, 2012. OIG also indicated that appellant arranged four trips departing from July 30,
2012 to October 30, 2013, but that the date she booked the travel was unknown. Records from
the travel agency indicated that appellant received $56.00 on February 22, 2011, $489.57 on
September 5, 2011, $845.64 on October 31, 2011, $285.34 on December 12, 2011, and $305.55
on May 31, 2012.
A reporting agent and special agent with OIG interviewed T.R., the owner of Roy’s Stow
Travel Agency, on July 16, 2014. He related that appellant was self-employed and paid on
commission when she brought business to his company. When appellant booked travel for
T.R.’s company she received half of any commission. She had an identification number that she
used to book travel through companies such as Apple Vacations, and was covered by his

2

insurance in case of a lawsuit. Appellant performed the work at home for about five years and
stopped work a few years prior to the interview.
An April 25, 2012 e-mail to Roy’s Stow Travel indicated that $802.58 in commissions
would be deposited into the company account. Appellant was listed as a reservation contact for
three commissions with a date of April 12, 2012.
Travel records compiled by the OIG’s office for 2011 to 2013 showed that on
September 15, 2012 appellant booked travel for a party with a departure date of
October 19, 2012. Appellant booked travel for 12 other individuals with departure dates ranging
from October 31, 2011 to August 15, 2012.
J.M., an employee of Apple Vacations, provided an e-mail summarizing commissions
appellant received from 2011 to 2013. Appellant earned $182.40 for a trip that she booked
departing November 8, 2011 and $132.00 for a trip that she booked departing October 19, 2012.
The OIG further listed commissions received by appellant from May 1, 2011 through
August 3, 2013 and an itinerary for an October 2013 trip booked by appellant. It also submitted
copies of checks to her from the travel agency dated September 9, November 3, and
December 13, 2011, and May 4 and June 4, 2012. An income statement from the travel agency
provided that appellant made $1,676.55 in commission in the year ending December 31, 2011
and $395.55 in commission for the year ending December 31, 2012.
By letter dated October 5, 2015, OWCP advised appellant that it had received
information that she had earnings as a sales agent for the period July 14, 2011 through
October 14, 2012. It requested that she discuss any work performed during this period.
Appellant, in a response received November 9, 2015, testified that she did not have
earnings from July 2011 to October 2012 and that any money she received during that time was
for work performed before that time period.
In a decision dated May 26, 2016, OWCP found that appellant had forfeited her
compensation from October 24, 2011 to October 14, 2012. It determined that she had knowingly
omitted earnings from self-employment on the October 14, 2012 Form EN1032.
On May 26, 2016 OWCP notified appellant of its preliminary determination that she
received an overpayment of $31,600.83 as she forfeited entitlement to compensation from
October 24, 2011 to October 14, 2012. It further advised her of its preliminary determination
that she was at fault in creating the overpayment. OWCP requested that appellant complete the
enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documents. Additionally, it notified her that, within 30 days of the date of the letter, she could
request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing.
On June 6, 2016 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative regarding the May 26, 2016 decision. On June 10, 2016 she
requested a prerecoupment hearing or teleconference regarding the preliminary overpayment
determination.
3

In an overpayment recovery questionnaire dated June 23, 2016, appellant provided her
monthly income and expenses. She further indicated that she had stocks and bonds.
At a telephone hearing, held on January 23, 2017, appellant related that she worked as a
travel agent before her August 9, 2011 work injury. She indicated that the commissions she
received after that date were for work performed prior to her injury. Counsel noted that her
commissions from September 9, 2011 and May 13, 2012 were not paid until July 29, 2012 and
predated when she began to receive compensation. He did not challenge the amount of any
overpayment. Counsel further asserted that OWCP denied appellant due process by failing to
send him a copy of the Form EN1032 and asking him to verify its accuracy. The hearing
representative requested that appellant submit additional evidence regarding her expenses,
including financial documentation.
Appellant submitted receipts for travel departing November 2011, September 17, 2011,
and April 12, 2012. She also submitted salary information for the period January 23 to
February 18, 2017.
By decision dated February 28, 2017, OWCP’s hearing representative affirmed the
May 26, 2016 forfeiture decision and found that appellant received an overpayment of
$31,600.83 for the period October 24, 2011 to October 14, 2012 as a result of the forfeiture. She
noted that the evidence confirmed that she received commissions for travel conducted January 3,
2011 and October 19, 2012. The hearing representative concluded that appellant received
unreported earnings during the period of the forfeiture. She found that the fact that the Form
CA-1032 was not sent to counsel did not absolve her of her responsibility to accurately complete
the form, noting that she could have consulted counsel if she required assistance. The hearing
representative further found that appellant was at fault in creating the overpayment and thus not
entitled to waiver. She found that the entire overpayment was due and payable as she did not
provide documentation regarding her expenses.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA provides that an employee who “fails to make an affidavit or
report when required or knowingly omits or understates any part of his or her earnings, forfeits
his or her right to compensation with respect to any period for which the affidavit or report was
required.3
The Board has held that it is not enough merely to establish that there were unreported
earnings or unemployment. Appellant can be subjected to the forfeiture provisions of 5 U.S.C.
§ 8106(b) only if she “knowingly” failed to report employment or earnings.4 The term
“knowingly” as defined in OWCP’s implementing regulation, means “with knowledge,
consciously, willfully, or intentionally.”5
3

5 U.S.C. § 8106(b).

4

Barbara L. Kanter, 46 ECAB 165 (1994).

5

20 C.F.R. § 10.5(n).

4

ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a head contusion and left shoulder sprain on
August 9, 2011. It paid her wage-loss compensation beginning October 24, 2011 and placed her
on the periodic rolls effective July 29, 2012.
OWCP found that appellant forfeited her entitlement to compensation from October 24,
2011 to October 14, 2012 because she failed to report earnings from employment on a Form
EN1032 signed on October 25, 2012. On the form, appellant indicated that she did not perform
any work for an employer and was not self-employed. She listed no earnings from employment
or self-employment.
On July 31, 2015 an investigator with the employing establishment’s OIG related that
appellant worked as a sales agent with Roy’s Stow Travel Agency during the period covered by
the October 2012 EN1032 form, earning approximately $1,926.00 in commissions. It specified
that she arranged 15 trips that took place from July 14 and October 14, 2012. OIG interviewed
T.R., the owner of the travel agency, on July 16, 2014. He advised that appellant received a
commission when she booked travel with his company and that she was self-employed.
Appellant had worked for about five years, performing the work at home, and had stopped a few
years earlier. Records from the travel agency indicated that appellant received $56.00 on
February 22, 2011, $489.57 on September 5, 2011, $845.64 on October 31, 2011, $285.34 on
December 12, 2011, and $305.55 on May 31, 2012.
On August 5, 2015 the OIG provided a travel arrangement summary indicating that
appellant booked travel arrangements for a customer on September 15, 2012. It provided other
dates that she made travel arrangement with booking dates that were unknown or outside the
period of the forfeiture. The OIG’s office further provided checks showing that appellant
received commissions from the travel agency during the period October 24, 2011 to
October 14, 2012. Appellant was thus involved in a business enterprise and had unreported
earnings during the time period covered by the October 25, 2012 Form EN1032.
Appellant argued that she received the commissions for work performed prior to her
August 9, 2011 work injury. The evidence from the OIG, however, provides that she made
travel arrangements for a client on September 14, 2012, during the period covered by the form.
Furthermore, as noted, she had unreported earnings throughout the period at issue.6
OWCP regulations provide that, if an employee knowingly omits or understates earnings
or work activity in making a report, she shall forfeit the right to compensation with respect to any
period for which the report was required.7
Appellant can be subject to the forfeiture provision of section 8106(b) only if she
“knowingly” failed to report earnings or employment. OWCP has the burden of proof to
6

The Board also notes that it has held that 5 U.S.C. § 8106(b)(2) makes no exception for earnings in concurrent
dissimilar employment. Earl D. Long, 50 ECAB 464, 467 (1999).
7

20 C.F.R. § 10.529(b); Harold F. Franklin, 57 ECAB 287 (2006).

5

establish that a claimant did, either with knowledge, consciously, willfully, or intentionally, fail
to report earnings from employment.8 Appellant completed CA-1032 forms which advised her
that she must report both all employment and all earnings from employment and selfemployment. The form clearly provided that she could be subject to criminal prosecution for
false or evasive answers or omissions. The factual circumstances of record, including
appellant’s signing of strongly worded certification clauses on the Form CA-1032, provide
persuasive evidence that she “knowingly” understated her earnings and employment
information.9 Appellant misrepresented her earnings and employment activity and, therefore,
forfeited her right to all compensation for the period October 24, 2011 to October 14, 2012.10
LEGAL PRECEDENT -- ISSUE 2
Under 5 U.S.C. § 8106(b), compensation forfeited under this subsection, if already paid,
shall be recovered under section 8129 of this title, unless recovery is waived under that section.11
Section 10.529 of OWCP’s implementing regulations provides as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, OWCP shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C.
[§] 8129 [recovery of overpayments] and other relevant statues.”12
ANALYSIS -- ISSUE 2
Appellant forfeited her right to compensation for the period October 24, 2011 to
October 14, 2012. As noted above, OWCP may declare an overpayment of compensation for
any compensation already paid for the period of a forfeiture of compensation. If a claimant has
any employment, including self-employment or involvement in a business enterprise, during a
period covered by a Form CA-1032 which he or she fails to report, a claimant is not entitled to
compensation for any portion of the period covered by the report, even though he or she may not
have had earnings during a portion of that period.13 OWCP determined that it paid appellant net

8

20 C.F.R. § 10.5(n).

9

See G.R., Docket No. 15-1047 (issued July 8, 2016).

10

See G.Z., Docket No. 16-0892 (issued May 19, 2017).

11

5 U.S.C. § 8106(b).

12

20 C.F.R. § 10.529; see also G.G., Docket No. 14-1848 (issued August 4, 2016).

13

See Louis P. McKenna, Jr., 46 ECAB 428 (1994).

6

compensation in the amount of $31,600.83 during the period in question and there is no contrary
evidence. The Board, accordingly, finds that there exists an overpayment of $31,600.83.14
LEGAL PRECEDENT -- ISSUE 3
5 U.S.C. 8129(b) provides: Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.15 A claimant who is at fault in creating the overpayment is not entitled to waiver.16
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if she
has done any of the following: “(1) Made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; (2) Failed to provide information which he or
she knew or should have known to be material; or (3) Accepted a payment which he or she knew
or should have known was incorrect.”17
ANALYSIS -- ISSUE 3
OWCP properly determined that appellant was at fault in the creation of the overpayment
because she failed to provide information which she knew or should have known to be material
on a Form EN1032 covering the period October 24, 2011 to October 14, 2012. The record
establishes that appellant had unreported employment activity during this period and knowingly
failed to furnish this material information to OWCP. Appellant acknowledged a certification
clause on the Form EN1032 which advised her in explicit language that she might be subject to
civil, administrative, or criminal penalties if she knowingly made a false statement or
misrepresentation or concealed a fact to obtain compensation. By signing these forms, she is
deemed to have acknowledged her duty to report any employment, self-employment, or
involvement in a business enterprise. Appellant indicated that she had no employment or
earnings from employment during the covered periods, and thus failed to furnish information
which she knew or should have known to be material to OWCP.18 As she is not without fault in
creating the overpayment, it is not subject to waiver of recovery.19
CONCLUSION
The Board finds that appellant forfeited her entitlement to compensation from
October 24, 2011 to October 14, 2012 as she knowingly failed to report earnings from
employment. The Board further finds that she received an overpayment of $31,600.83 as a result

14

See J.N., Docket No. 13-1761 (issued July 1, 2014).

15

5 U.S.C. § 8129(b).

16

See Robert W. O Brien, 36 ECAB 541, 547 (1985).

17

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001).

18

See supra note 10.

19

See Harold F. Franklin, supra note 7.

7

of the forfeiture and that she was at fault in the creation of the overpayment and thus not entitled
to waiver of recovery of the overpayment.20
ORDER
IT IS HEREBY ORDERED THAT the February 28, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2017
Washington, DC

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

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

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

20

The OWCP hearing representative found that the overpayment was due and payable but did not decide the rate
of recovery. The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those cases where
OWCP seeks recovery from continuing compensation under FECA. See George A. Rodriguez, 57 ECAB 224
(2005); Marshall L. West, 36 ECAB 490 (1985).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF ENERGY, BONNEVILLE
POWER ADMINISTRATION, Custer, WA,
Employer
__________________________________________

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

Docket No. 21-0563
Issued: December 30, 2021

Case Submitted on the Record

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

JURISDICTION
On February 28, 2021 appellant filed a timely appeal from a January 28, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the January 28, 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 12
percent permanent impairment of his left upper extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On January 9, 2017 appellant, then a 49-year-old electrician, filed a traumatic injury claim
(Form CA-1) alleging that on that date he injured his left shoulder when he slipped and fell when
exiting his truck while in the performance of duty. OWCP accepted the claim for sprain of left
shoulder joint and strain of other muscles, fascia and tendons at shoulder and upper arm level, left
arm. Appellant stopped work on the date of injury and returned to full duty on January 10, 2017.
In an August 21, 2020 report, Dr. Eric S. Smith, a Board-certified occupational medicine
specialist, indicated that appellant’s chronic left shoulder condition has reached a point of medical
stability. He opined that he would evaluate appellant for permanent impairment of the left shoulder
under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), after OWCP sent appellant “an award letter.”3
On November 18, 2020 appellant filed a claim for compensation (Form CA-7) for a
schedule award.
In a December 4, 2020 report, Dr. Smith noted appellant’s physical examination findings,
including a goniometric evaluation of range of motion (ROM) with three measurements for both
the right and left upper extremities. Inspection of the shoulders revealed no edema, swelling, rubor
or cyanosis with equal shoulder height, normal sensation and normal motor strength testing and
symmetrical reflexes. With regard to the left shoulder, Dr. Smith measured: flexion of 131, 134,
and 132 degrees; extension of 44, 43 and 46 degrees; abduction of 87, 86, and 87 degrees;
adduction of 68, 67 and 65 degrees; external rotation of 32, 32, and 31 degrees; and internal
rotation of 21, 24, and 22 degrees. He noted that appellant demonstrated full effort and that the
rest of the examination was unremarkable. Referencing the A.M.A., Guides, Dr. Smith indicated
that all the diagnostic-based impairments (DBI) under Table 15-5 referred to normal ROM,
however, appellant had abnormal ROM. Therefore, he found the ROM impairment methodology
more appropriate. Under Table 15-34, page 475, Dr. Smith found that appellant’s left shoulder
had grade modifier (GM) 1. Appellant’s loss of flexion was a 1 percent impairment, loss of
extension was a 1 percent impairment, loss of abduction was a 3 percent impairment, loss of
adduction was a 0 percent impairment, loss of internal rotation was a 4 percent impairment, and
loss of external rotation was a 2 percent impairment, for a total of 13 percent permanent
impairment of the left upper extremity. He also noted that an activities of daily living
questionnaire, which appellant signed on December 3, 2020, indicated some difficulty with lifting
activities. Dr. Smith concluded that appellant’s left shoulder injury had reached maximum medical
improvement.

3

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

2

On January 11, 2021 OWCP prepared a statement of accepted facts (SOAF) that listed
appellant’s accepted conditions. Appellant’s case record was thereafter referred to Dr. Morley
Slutsky, Board-certified in occupational medicine, serving as OWCP’s District Medical Adviser
(DMA), for review.
In a January 21, 2020 report, Dr. Slutsky reviewed the SOAF and Dr. Smith’s December 4,
2020 medical report. He opined that appellant reached MMI on December 4, 2020, the date of
Dr. Smith’s impairment evaluation. Utilizing the DBI method, Dr. Slutsky found that the most
impairing diagnosis under Table 15-5 was left shoulder sprain, with one percent default permanent
impairment value. He assigned grade modifier functional history (GMFH) 1 under Table 15-7;
grade modifier physical examination (GMPE) 1 under Table 15-8; and grade modifier clinical
studies (GMCS) 0, noting that appellant was still symptomatic with normal diagnostic testing.
After using the net adjustment formula, Dr. Slutsky found a negative 1 which moved the final
grade to B or 1 percent upper extremity impairment. Under the ROM method, he indicated that
he agreed with all the impairments Dr. Smith assigned for left shoulder ROM under Table 15-34
with the exception of extension, noting that 50 degrees of extension equaled 0 percent impairment,
not the 1 percent impairment Dr. Smith assigned. Using Table 15-34, the DMA noted: 130
degrees flexion for 3 percent impairment; 50 degrees extension for 0 percent impairment, 90
degrees abduction for 3 percent impairment, 70 degrees adduction for 0 percent impairment, 20
degrees internal rotation for 4 percent impairment, and 30 degrees external rotation for 2 percent
impairment, equaled 12 percent left lower extremity impairment. Under Table 15-35, he found
that shoulder grade modifier ROM 2, for a ROM equal to 12 percent. Under Table 15-7, the DMA
found GMFH 1 as appellant still had symptoms. Under Table 15-36, he found a net modifier -1
for the difference of ROM GMFH (1) and ROM GM (2). The DMA concluded that the ROM
impairment remained the same and equaled 12 percent left upper extremity impairment. Thus, he
opined that appellant had final 12 percent left upper extremity impairment under the ROM
methodology, which yielded the highest impairment value.
By decision dated January 28, 2021, OWCP awarded appellant 12 percent permanent
impairment of his left upper extremity. The award ran 37.44 weeks (f raction of a day) from
December 4, 2020 through June 23, 2021. OWCP accorded the weight of the medical evidence
regarding the percentage of impairment to the DMA, finding that he correctly applied the A.M.A.,
Guides to the examination findings.
LEGAL PRECEDENT
The schedule award provisions of FECA, 4 and its implementing federal regulations, 5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
4

Supra note 1.

5

20 C.F.R. § 10.404.

3

OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009. 6 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 7
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning Disability and Health
(ICF).8 Under the sixth edition, the evaluator identifies class of diagnosis (CDX), which is then
adjusted by a GMFH, GMPE, and GMCS. 9 The net adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).10 Evaluators are directed to provide reasons for their impairment
choices, including the choices of diagnoses from regional grids and calculations of modifier
scores.11
FECA Bulletin No. 17-06 provides guidance in applying ROM or DBI methodologies in
rating permanent impairment of the upper extremities. Regarding the application of ROM or DBI
impairment methodologies in rating permanent impairment of the upper extremities, FECA
Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an

6

For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (March 2017); see
also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

M.W., Docket No. 20-0252 (issued May 24, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
8

A.M.A., Guides (6 th ed. 2009) p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
9

Id. at 383-492.

10

Id. at 411.

11

M.W., supra note 7; R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued
April 1, 2011).

4

impairment rating for the diagnosis in question, the method producing the higher
rating should be used. (Emphasis in the original.)”12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish greater than 12
percent permanent impairment of his left upper extremity, for which he previously received a
schedule award.
OWCP received a report from Dr. Smith, who opined that appellant had reached MMI and
found that appellant had 13 percent permanent impairment of the left upper extremity based on
ROM methodology.
In accordance with its procedures, OWCP properly routed the case record to the DMA,
who, using Dr. Smith’s evaluation findings, provided permanent impairment ratings using both the
DBI and ROM methodologies. The DMA found that appellant had 1 percent permanent left upper
extremity impairment under the DBI method and 12 percent permanent left upper extremity
impairment under the ROM method. He also opined that the ROM methodology represented the
greater left upper extremity permanent impairment rating.
The Board has reviewed the DMA’s ROM impairment rating under Table 15-34, page 475
of the A.M.A, Guides, based on the findings of Dr. Smith, and finds that appellant has 12 percent
total left upper extremity permanent impairment based upon the ROM methodology. As noted, if
the evaluator evaluating loss of ROM determines that there is an organic basis for a restricted
ROM, then the greatest of three ROM measurements should be used for the determination of the
impairment. The greatest of the three ROM measurements of appellant’s left shoulder from
Dr. Smith reflects flexion of 134 degrees, extension of 46 degrees, abduction of 87 degrees,
adduction of 68 degrees, external rotation of 32 degrees, and internal rotation of 24 degrees. These
values based on the greatest measurement differ from both the values assigned by Dr. Smith and
the DMA.14 Pursuant to Table 15-34, flexion of 134 degrees equals 3 percent impairment;
extension of 46 degrees rounded up to 50 degrees equals 0 percent impairment, 15 abduction of 87
12

FECA Bulletin No. 17-06 (May 8, 2017).

13

See supra note 6 at Chapter 2.808.6(f) (March 2017).

14

The DMA erroneously reported flexion of 130 degrees, extension of 50 degrees, abduction of 90 degrees,
adduction of 70 degrees, external rotation of 30 degrees, and internal rotation of 20 degrees.
15

For extension of the shoulder Table 15-34 provides that 30 to 40 degrees equals 1 percent upper extremity
impairment and more than or equal to 50 degrees equals 0 percent upper extremity impairment. There is no category
provided for the range of 41 degrees to 49 degrees. Appellant’s 46 degree extension rounds up to 50 degrees and thus
is equal to 0 percent upper extremity impairment.

5

degrees rounded up to 90 degrees equals 3 percent impairment,16 adduction of 68 degrees equals
0 percent impairment; external rotation of 32 degrees equals 2 percent impairment, and internal
rotation of 24 degrees equals 4 percent impairment, for a total 12 percent left upper extremity
permanent impairment. Under Table 15-35, page 477, the DMA properly found GM was 2.17
Under Table 15-36, page 477, he also properly found GMFH was 1. Under Table 15-36, the
GMFH is -1, which equals no change in total ROM impairment, or 12 percent permanent
impairment.
The Board finds that the DMA properly indicated that appellant’s impairment finding
under the ROM methodology represented the greater left upper extremity permanent impairment. 18
There is no other current medical evidence in conformance with the sixth edition of the
A.M.A., Guides establishing greater than the 12 percent permanent impairment of the lef t upper
extremity for which he previously received a schedule award. Accordingly, appellant has met not
his burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than 12
percent permanent impairment of his left upper extremity, for which he previously received a
schedule award.

16

There is no category provided under Table 15-34 for abduction 87 degrees. Eighty-seven degrees rounds up to
90 degrees which provides three percent upper extremity impairment.
17

Under Table 15-35, the range of motion grade modifier 2 for the shoulder is from 12 percent to 23 percent upper
extremity impairment for total motion impairment.
18

See E.R., Docket No. 19-1574 (issued March 24, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the January 28, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL PROTECTIVE SERVICE,
NATIONAL CAPITAL REGION,
Washington, DC, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0485
Issued: October 29, 2020

Case Submitted on the Record

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

On January 2, 2020 appellant, through counsel, filed a timely appeal from a November 22,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards assigned this appeal Docket No. 20-0485.
On August 7, 2018 appellant, then a 53-year-old police officer, filed an occupational
disease claim (Form CA-2) alleging that he had sustained left knee injuries due to factors of his
federal employment. OWCP assigned File No. xxxxxx600. Appellant alleged that in 2004 he
sustained a left knee injury while on duty during a traffic accident.2 He also indicated that he filed
a traumatic injury claim for a June 20, 2016 left knee injury he sustained during rapid response
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

The Board is unable to identify any OWCP file number associated with this claim.

training when he attempted to scale a six-foot wooden wall, and struck his left knee on a large steel
bolt.3
By decision dated November 21, 2018, OWCP denied the occupational disease claim
finding that it was a duplicate of a previously denied June 8, 2018 traumatic injury claim under
OWCP File No. xxxxxx324. It concluded, therefore, that the requirements had not been met to
establish that “an occupational disease work injury occurred” as defined by FECA.
On January 30, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. By decision dated February 13, 2019, the hearing
representative denied the hearing request as untimely filed. After exercising her discretion, she
further denied the request finding that the issue could be resolved through a request for
reconsideration.
On September 11, 2019 appellant, through counsel, requested reconsideration.
By decision dated November 22, 2019, OWCP denied modification of its prior decision.
The Board, having duly considered the 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.4 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.5
In the instant case, appellant is alleging a left knee condition resulting in a total left knee
replacement. The record reflects that OWCP has not administratively combined the present claim
with his prior claim, File No. xxxxxx324, pertaining to his left knee condition.
For a full and fair adjudication, the Board finds that this case must be remanded to OWCP
to administratively combine the present claim with OWCP File No. xxxxxx324. Following this
and other such further development as deemed necessary, OWCP shall issue a de novo decision.

3

OWCP File No. xxxxxx324.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
5

Id.; P.B., Docket No. 19-1532 (issued April 30, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

2

IT IS HEREBY ORDERED THAT the November 22, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this order of the Board.
Issued: October 29, 2020
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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Port Orchard, WA, Employer
__________________________________________

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

Docket No. 19-0567
Issued: August 5, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 16, 2019 appellant filed a timely appeal from a November 28, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 24, 2018, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request for
a telephonic hearing before an OWCP hearing representative.
FACTUAL HISTORY
On March 20, 2018 appellant, then a 28-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained kidney stones causally related to factors of
1

5 U.S.C. § 8101 et seq.

her federal employment. She indicated that, by nature of her duties, restrooms were not readily
available along her route. As such, appellant restricted her water consumption, which caused
kidney stones to grow to the point where they became difficult to pass. On the reverse side of the
claim form the employing establishment related that she stopped work on March 15, 2018.
In a development letter dated March 29, 2018, OWCP advised appellant of the type of
factual and medical evidence needed to establish her claim, including a detailed description and
factual corroboration of the identified employment factors, and a report from her physician
explaining how and why her employment tasks would cause the claimed conditions. It also
requested that she respond to a questionnaire to substantiate the factual elements of her claim.
OWCP afforded appellant 30 days to submit the requested evidence.
In a letter dated April 11, 2018, the employing establishment controverted appellant’s
occupational disease claim. It noted that there are multiple restrooms approved for her use even
though they would take her off of her route. The employing establishment related that at no point
was appellant instructed not to use the restroom during her route.
On April 30, 2018 appellant submitted her responses to OWCP’s factual questionnaire.
She indicated that she did not have one regular route, and was responsible for a different route
assigned each day. Appellant noted that she developed kidney stones because of a lack of
restrooms and the constant restriction of fluid intake.
In a report dated May 1, 2018, Dr. Samay Jain, a Board-certified urologist, diagnosed
bilateral kidney stones. He indicated that appellant was examined on March 2, 6, 20, and April 3,
2018 and underwent surgery to remove the stones on April 16, 2018. Dr. Jain noted that he was
unsure if specific exposures in her federal employment contributed to her kidney stones, but she
should simply increase her fluid intake moving forward.
By decision dated May 24, 2018, OWCP denied appellant’s occupational disease claim
finding that the evidence of record was insufficient to establish fact of injury.
On June 26, 2018 appellant requested a telephonic hearing with a representative of
OWCP’s Branch of Hearings and Review. In a September 18, 2018 letter, OWCP’s hearing
representative notified her that OWCP’s Branch of Hearings and Review had scheduled a
telephonic hearing for November 16, 2018 at 3:00 p.m. Eastern Standard Time (EST). The hearing
notice was mailed to appellant’s last known address and she was provided with a toll-free number
to call and the appropriate passcode. Appellant did not, however, call in for the hearing at the
appointed time. She also did not contact OWCP’s Branch of Hearings and Review within 10 days
thereafter to explain her absence.
By decision dated November 28, 2018, OWCP’s hearing representative determined that
appellant had abandoned her request for a telephonic hearing.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for which

2

a hearing is sought.2 Unless otherwise directed in writing by the claimant, the hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date.3 OWCP has the burden of proving that
it properly mailed to a claimant and any representative of record a notice of a scheduled hearing.4
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing.5
ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned her request for
a telephonic hearing before an OWCP hearing representative.
Following OWCP’s May 24, 2018 initial decision denying appellant’s occupational
disease claim, she filed a timely request for a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review. In a September 18, 2018 letter, OWCP’s hearing
representative notified her that OWCP’s Branch of Hearings and Review had scheduled a
telephonic hearing for November 16, 2018 at 3:00 p.m. EST. OWCP properly mailed the hearing
notice to appellant’s last known address.6 Appellant failed to call-in for the scheduled hearing
using the provided telephone number and passcode. She did not request a postponement or provide
an explanation to OWCP for her failure to attend the hearing within 10 days of the scheduled
hearing. The Board thus finds that OWCP properly determined that appellant abandoned her
request for a telephonic hearing.7
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned her request for
a telephonic hearing before an OWCP hearing representative.

2

20 C.F.R. § 10.616(a).

3

Id. at § 10.617(b).

4

M.R., Docket No. 18-1643 (issued March 1, 2019); T.P., Docket No. 15-0806 (issued September 11, 2015).

5

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written
Record, Chapter 2.1601.6(g) (October 2011). See also A.J., Docket No. 18-0830 (issued January 10, 2019).
6

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. This is called the mailbox rule. See id. Appellant did not submit evidence of
nondelivery of OWCP’s September 18, 2018 hearing notice such that the presumption of receipt would be rebutted.
7

See supra note 5; see also R.S., Docket No. 15-1358 (issued December 4, 2015).

3

ORDER
IT IS HEREBY ORDERED THAT the November 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2019
Washington, DC

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

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

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

4