United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, CHICAGO BULK
MAIL CENTER, Chicago, IL Employer
__________________________________________

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

Docket No. 20-0370
Issued: September 27, 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 December 3, 2019 appellant filed a timely appeal from an October 30, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish greater than seven
percent permanent impairment of her left upper extremity for which she previously received a
schedule award.
FACTUAL HISTORY
On August 22, 2002 appellant, then a 36-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that, on August 21, 2002, she developed severe left elbow pain when
1

5 U.S.C. § 8101 et seq.

throwing skids of mail while in the performance of duty. She returned to light-duty work on
August 22, 2002. On August 4, 2003 OWCP accepted appellant’s claim for left arm tendinitis.2
On April 7, 2004 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
By decision dated September 3, 2004, OWCP granted appellant a schedule award for seven
percent permanent impairment of the left upper extremity.
On June 13, 2019 appellant filed a claim for an additional schedule award (Form CA-7).
In a June 24, 2019 development letter, OWCP informed appellant that additional evidence
was needed to establish her additional schedule award claim. It advised her of the type of medical
evidence necessary and afforded her 30 days to respond.
In a report dated July 22, 2019, Dr. David Barnes, a Board-certified family practitioner,
diagnosed left medial epicondylitis. He noted appellant’s surgery and reported that she was
experiencing a loss of function due to muscle atrophy and weakness. Utilizing the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides),3 Dr. Barnes found that, under Table 15-4, page 399, appellant’s diagnosis was consistent
with status post-surgical release of flexor or extensor origins with residual symptoms, which is a
class of diagnosis (CDX) of 1, with a default value of 5. He further found: a grade modifier for
functional history (GMFH) of 3 (severe) as defined on page 406, Table 15-7 of the A.M.A.,
Guides; a grade modifier for physical examination (GMPE) of 1 (mild decreased from uninjured
side) in accordance with page 408, Table 15-8; and a grade modifier for clinical studies (GMCS)
of 2, moderate pathology as found on page 410, Table 15-9 of that A.M.A., Guides. Dr. Barnes
applied the net adjustment formula from page 411 of the A.M.A., Guides to reach a final rating of
seven percent permanent impairment of the left upper extremity.
Dr. Barnes also calculated appellant’s loss of range of motion (ROM) of the left elbow,
finding that she exhibited 2 degrees of elbow extension and 78 degrees of elbow supination by
averaging three repetitions. He applied page 474, Table 15-33, of the A.M.A., Guides, to
determine that appellant had no permanent impairment due to loss of extension, no permanent
impairment due to loss of supination, and no permanent impairment based on loss of ROM.
On September 11, 2019 OWCP referred the medical evidence, including Dr. Barnes’
July 22, 2019 report, and a statement of accepted facts (SOAF) to Dr. Jovito Estaris, a physician
Board-certified in occupational medicine serving as an OWCP district medical adviser (DMA). In
a September 29, 2019 report, Dr. Estaris found that the GMFH applied by Dr. Barnes was more
than two grades higher than that of GMPE, rendering it unreliable and excluding it from the net
adjustment formula in accordance with page 406 of the A.M.A., Guides. He applied the amended
net adjustment formula and determined that appellant had no more than five percent permanent
2

On September 24, 2003 appellant underwent a left elbow medial epicondylectomy and debridement of the medial
epicondyle.
3

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

2

impairment of the left upper extremity. The DMA further determined that appellant had no
permanent impairment due to loss of range of motion and, as such, the diagnosis-based impairment
rating was appropriate.
By decision dated October 30, 2019, OWCP found that appellant had not met her burden
of proof to establish greater than seven percent permanent impairment of her right upper extremity
for which she had previously received a schedule award.
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.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
sixth 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 diagnosis-based 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 the CDX, which is then
adjusted by the 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
The A.M.A., Guides also provides that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairment when other grids direct its use or when no other
4

Supra note 2 at 8107.

5

20 C.F.R. § 10.404.

6

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

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8

See A.M.A., Guides (6th ed. 2009), at 3, section 1.3.

9

Id. at 494-531.

10

Id. at 411.

11

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

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diagnosis-based sections are applicable. 12 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
measured and added. 13 Adjustments for functional history may be made if the evaluator
determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable. 14
Regarding the application of ROM or DBI methodologies in rating permanent impairment
of the upper extremities, FECA Bulletin No. 17-06 provides in pertinent part that: “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 impairment rating for the diagnosis in question, the method producing th e higher rating should
be used.” (Emphasis in the original.)15
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified. 16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than
seven percent permanent impairment of her left upper extremity for which she previously received
a schedule award.
In his July 22, 2019 report, Dr. Barnes opined that appellant had seven percent permanent
impairment of the left upper extremity based on the DBI methodology set forth in the sixth edition
of the A.M.A., Guides. He also used the ROM methodology of the sixth edition of the A.M.A.,
Guides and found that, in accordance with this methodology, she had no permanent impairment of
the left upper extremity. Dr. Barnes’ impairment rating did not exceed that previously received
by appellant on September 3, 2004. Therefore, his July 22, 2019 report does not support that
appellant is entitled to greater left upper extremity permanent impairment than was previously
awarded. Furthermore, Dr. Barnes’ DBI evaluation of appellant’s permanent impairment was
inconsistent with the sixth edition of the A.M.A., Guides as he did not exclude the GMFH, which
was unreliable in accordance with the A.M.A., Guides, page 406 and, thus, excluded from the net

12

A.M.A., Guides 461.

13

Id. at 473.

14

Id. at 474.

15

FECA Bulletin No. 17-06 (May 8, 2018); V.L., Docket No. 18-0760 (issued November 13, 2018).

16

Id.

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adjustment formula. The Board, therefore, finds that Dr. Barnes’ report lacks probative value and
is insufficient to establish appellant’s claim for an additional schedule award. 17
The DMA, Dr. Estaris, reviewed Dr. Barnes’ July 22, 2019 report and determined that it
provided sufficient findings, but an incorrect application of the A.M.A., Guides. He applied the
appropriate tables and pages in the A.M.A., Guides and found that appellant had five percent
permanent impairment of the left upper extremity based upon the DBI rating method.
The Board finds that the DMA’s opinion constitutes the weight of the medical evidence. 18
The Board further finds that there is no current medical evidence of record, in conformance with
the sixth edition of the A.M.A., Guides, establishing that appellant has greater than seven percent
permanent impairment of the left upper extremity. Accordingly, appellant has not established
entitlement to a schedule award greater than that previously awarded. 19
Appellant may request a schedule award or increased schedule award at any time based on
evidence of new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish greater than
seven percent permanent impairment of her left upper extremity for which she previously received
a schedule award.

17

L.C., Docket No. 19-0564 (issued September 16, 2019).

18

See K.A., Docket No. 20-1463 (issued March 16, 2021); O.F., Docket No. 19-0986 (issued February 12, 2020);
M.C., Docket No. 15-1757 (issued March 17, 2016) (the only medical evidence that demonstrated a proper application
of the A.M.A., Guides was the report of the DMA).
19
D.L. Docket No. 20-1016 (issued December 8, 2020); J.K., Docket No. 19-1420 & 19-1422 (issued
August 12, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the October 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 27, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF THE AIR FORCE,
402nd AIRCRAFT MAINTENANCE GROUP,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 11-338
Issued: September 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 23, 2010 appellant timely appealed the July 19, 2010 merit decision of the
Office of Workers’ Compensation Programs (OWCP), which denied modification of a
November 16, 2009 schedule award. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUE
The issue is whether appellant has greater than 24 percent impairment of the right upper
extremity.
1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its July 19, 2010 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2010).

FACTUAL HISTORY
Appellant, a 65-year-old retired aircraft production control supervisor, injured his right
upper extremity in the performance of duty on September 28, 2004.3 OWCP accepted his claim
for right shoulder rotator cuff tear and shoulder impingement tendinitis with secondary adhesive
capsulitis. Appellant has undergone two OWCP-approved surgical procedures to repair his right
rotator cuff. He received appropriate wage-loss compensation for periods of temporary total
disability. Appellant has also received multiple schedule awards. On November 3, 2005 OWCP
granted an award for 12 percent impairment of the right upper extremity.4 Appellant received an
award for an additional 5 percent on July 19, 2007, for a total right upper extremity impairment
of 17 percent.5
On July 2, 2009 appellant filed a claim (Form CA-7) for an additional schedule award.
His physician, Dr. Malone, provided an April 6, 2009 rating of 26 percent impairment of the
right upper extremity.6 This rating was prepared in accordance with the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (2001). Effective May 1, 2009, OWCP adopted the sixth edition of the A.M.A., Guides
(2008). Although Dr. Malone expressed his willingness to recalculate appellant’s impairment
under the sixth edition of the A.M.A., Guides, he did not submit a supplemental report. OWCP,
therefore, referred appellant to an orthopedic specialist.
In a report dated August 25, 2009, James S. Mason, M.D., found 13 percent impairment
of the right upper extremity under the sixth edition of the A.M.A., Guides (2008). He noted that
appellant had undergone two surgeries to repair his right rotator cuff, most recently in
January 2007. Dr. Mason also noted that an October 2008 magnetic resonance imaging scan
revealed another right rotator cuff tear. Due to an unrelated medical condition, appellant was not
a suitable candidate for additional surgery, and therefore, he had reached maximum medical
improvement with respect to his right shoulder condition. Dr. Mason cited Table 15-5 (Shoulder
Regional Grid), A.M.A., Guides 403 (2008) as the basis for appellant’s upper extremity

3

Appellant fell to the floor when the chair he was seated in broke.

4

The 2005 award was based on the September 2, 2005 evaluation of Dr. K. Scott Malone, appellant’s attending
physician, and the district medical adviser’s (DMA) October 17, 2005 report. The 12 percent impairment rating was
for loss of motion in the right shoulder.
5

The 2007 award was based on Dr. Malone’s June 26, 2007 impairment rating, with which the DMA concurred.
Both physicians agreed that appellant had 17 percent impairment due to loss of motion in the right shoulder.
Because appellant had already received a schedule award for the right upper extremity, OWCP adjusted the
July 2007 award to reflect the 12 percent impairment previously awarded.
6

The overall impairment rating included components for distal clavicle resection arthroplasty (10 percent) and
loss of shoulder motion (18 percent). Dr. Malone reported right shoulder active ROM results as follows: 80 degrees
flexion, 24 degrees extension, 80 degrees abduction, 26 degrees adduction, 45 degrees internal rotation and 40
degrees external rotation.

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impairment rating. He characterized appellant’s diagnosis-based impairment as class 1, grade E,
which reportedly represented 13 percent upper extremity impairment.7
Dr. Guillermo M. Pujadas, the DMA, reviewed the record on October 20, 2009.8 He
indicated that the diagnosis-based impairment rating method was less favorable, resulting in only
10 percent upper extremity impairment. Instead of relying on the diagnosis-based impairment
method, the DMA calculated 24 percent impairment due to loss of motion in the right shoulder.
The range of motion (ROM) rating was based on Dr. Malone’s April 6, 2009 physical
examination findings, which the DMA applied to Table 15-34 (Shoulder Range of Motion),
A,M.A., Guides 475 (2008).9 Lastly, the DMA noted that appellant had already received awards
totaling 17 percent impairment for loss of motion in the right shoulder. He subtracted the prior
ratings from the current 24 percent ROM impairment, and advised that appellant be awarded an
additional 7 percent impairment of the right upper extremity.
In a decision dated November 16, 2009, OWCP found that appellant had 24 percent
impairment of the right upper extremity. Because appellant had previously received combined
awards totaling 17 percent, OWCP granted an additional 7 percent impairment. The award
covered a period of 21.84 weeks from April 6 to September 5, 2009.
On June 11, 2010 appellant requested reconsideration. He argued that OWCP should
have paid him an additional 13 percent based on Dr. Mason’s August 25, 2009 report.
OWCP referred the case to its DMA, Dr. Howard “H.P.” Hogshead, requesting that he
review Dr. Mason’s August 25, 2009 report.10 In a June 21, 2010 report, the DMA indicated that
Dr. Pujadas’ 24 percent rating and Dr. Mason’s 13 percent rating were both valid under the
A.M.A., Guides (6th ed. 2008).11
By decision dated July 19, 2010, OWCP denied modification of the November 16, 2009
schedule award. It noted that prior to its latest award appellant had already been compensated
for 17 percent impairment of the right upper extremity. OWCP explained that had it accepted
Dr. Mason’s August 25, 2009 rating of 13 percent, appellant would not have received the
additional 7 percent award.

7

Dr. Mason also provided right shoulder ROM measurements as follows: 90 degrees forward flexion, 90 degrees
abduction, 60 degrees external rotation and internal rotation to approximately L5.
8

Dr. Pujadas is a Board-certified orthopedic surgeon.

9

The DMA further explained that Dr. Malone’s 26 percent rating under the fifth edition of the A.M.A., Guides
represented a combination of impairments for loss of motion and distal clavicle arthroplasty, which was not an
acceptable approach under the sixth edition of the A.M.A., Guides (2008). The DMA did not specifically mention
Dr. Mason’s August 25, 2009 report.
10

Dr. Hogshead is a Board-certified orthopedic surgeon.

11

Dr. Hogshead (DMA) also noted that Dr. Mason’s August 25, 2009 ROM values were different than those
previously relied upon by Dr. Pujadas (DMA).

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LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.12 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 under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.13 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).14
FECA and its implementing regulations provide for the reduction of compensation for
subsequent injury to the same scheduled member.15 Benefits payable under 5 U.S.C. § 8107(c)
shall be reduced by the period of compensation paid under the schedule for an earlier injury if:
(1) compensation in both cases is for impairment of the same member or function or different
parts of the same member or function; and (2) the latter impairment in whole or in part would
duplicate the compensation payable for the preexisting impairment.16
ANALYSIS
The Board finds that appellant has not established that he has greater than 24 percent
impairment of the right upper extremity.
Prior to the latest schedule award, appellant had already received two awards totaling 17
percent impairment of the right upper extremity. Appellant mistakenly believed that Dr. Mason
recommended an “additional” 13 percent impairment of the right upper extremity. Contrary to
appellant’s belief, Dr. Mason did not find an “additional” 13 percent impairment. Instead, he
found that appellant’s total right upper extremity impairment was 13 percent, which was less
than what appellant had already received. If OWCP had relied upon Dr. Mason’s August 25,
2009 impairment rating, appellant would not have received an additional seven percent
impairment of the right upper extremity.
Dr. Hogshead (DMA) indicated that Dr. Mason’s 13 percent rating was “appropriate
[and] consistent” with the A.M.A., Guides (6th ed. 2008), however, the DMA was mistaken.
Under the sixth edition of the A.M.A., Guides, impairments of the upper extremities are covered
by Chapter 15. Section 15-2, entitled diagnosis-based impairment, indicates that “[d]iagnosis12

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

13

20 C.F.R. § 10.404.

14

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a
(January 2010).
15

5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

16

20 C.F.R. § 10.404(c)(1), (2).

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based impairment is the primary method of evaluation of the upper limb.”17 The initial step in
the evaluation process is to identify the impairment class by using the corresponding diagnosisbased regional grid. Dr. Mason’s diagnosis-based impairment rating under Table 15-5 (Shoulder
Regional Grid), A.M.A., Guides 403 appears to have been based upon appellant’s distal clavicle
resection. Dr. Mason characterized it as a class 1, grade E impairment, for which he assigned 13
percent upper extremity impairment. However, a class 1, grade E impairment under Table 15-5 - acromioclavicular (AC) joint injury, status post distal clavicle resection -- represents 12 percent
upper extremity impairment, not 13 percent.
While diagnosis-based impairment is the preferred method of evaluation, Table 15-5 also
provides an alternative to the diagnosis-based impairment method where loss of motion is
present. That alternative is a ROM impairment rating under section 15.7, A.M.A., Guides 459,
475 (2008). Unfortunately, Dr. Mason did not provide complete right shoulder ROM
measurements. He did not measure appellant’s extension or adduction, and his measurement for
internal rotation was unclear.18 If one applies Dr. Mason’s limited ROM measurements to Table
15-34, A.M.A., Guides 475 (2008), appellant would have seven percent impairment of the right
upper extremity for loss of shoulder motion.19 Dr. Pujadas’ (DMA) reliance on Dr. Malone’s
April 6, 2009 examination findings proved most advantageous for appellant. Dr. Malone
reported 80 degrees flexion (9 percent), 24 degrees extension (2 percent), 80 degrees abduction
(6 percent), 26 degrees adduction (1 percent), 45 degrees internal rotation (2 percent), and 40
degrees external rotation (4 percent), which represented 24 percent impairment under Table 1534, A.M.A., Guides 475 (2008).
The Board finds that Dr. Pujadas’ October 20, 2009 impairment rating conforms to the
A.M.A., Guides (6th ed. 2008), and thus, represent the weight of the medical evidence regarding
the extent of appellant’s right upper extremity impairment. Appellant has not submitted any
credible medical evidence indicating he has greater than 24 percent impairment of the right upper
extremity. Because appellant had already been awarded 17 percent impairment of the right
upper extremity, OWCP properly offset the latest rating of 24 percent, and awarded only an
additional 7 percent impairment.20
CONCLUSION
Appellant has not established that he has greater than 24 percent impairment of the right
upper extremity.

17

Section 15.2, A.M.A., Guides 387 (2008).

18

See supra note 7.

19

Ninety (90) degrees forward flexion (3 percent), 90 degrees abduction (3 percent), and 60 degrees external
rotation (1 percent). It is not entirely clear what level of impairment corresponds to Dr. Mason’s finding of “internal
rotation to approximately L5.”
20

See 5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

5

ORDER
IT IS HEREBY ORDERED THAT the July 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0422
Issued: March 16, 2022

Case Submitted on the Record

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

On January 28, 2021 appellant filed a timely appeal from a December 16, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 By that decision, OWCP
denied his traumatic injury claim (Form CA-1) that he sustained COVID-19 on March 10, 2020
causally related to the accepted employment exposure. The Clerk of the Appellate Boards assigned
Docket No. 21-0422 to appellant’s appeal.2
On August 30, 2021, the Director of OWCP filed a motion to remand with the Clerk of the
Appellate Boards. The Director noted that OWCP has conceded that appellant is a covered
1

The Board notes that, following the December 16, 2020 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

The Board notes that OWCP subsequently issued a March 22, 2021 decision, which vacated the December 16,
2020 merit decision. However, appellant had already filed the current appeal to the Board on January 28, 2021. OWCP
may not simultaneously have jurisdiction over the same issue. Consequently, the March 22, 2021 decision is set aside
as null and void. See 20 C.F.R. § 10.626; see also A.C., Docket No. 18-1730 (issued July 23, 2019); M.C., Docket
No. 18-1278, n.1 (issued March 7, 2019); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB
880 (1990).

employee under the American Rescue Plan Act of 2021 (ARPA) and that he is entitled to
appropriate benefits under FECA. The Director requested that the December 16, 2020 decision be
set aside. The Director further advised that, upon remand, OWCP wou ld reissue its decision on
appellant’s entitlement to FECA benefits for exposure to COVID-19 while in the performance of
her federal duties, and authorize the payment of appropriate benefits as claimed.
The Clerk of the Appellate Boards served appellant with a copy of the Director’s motion
to remand. No reply was received.
The Board, having duly considered this matter, grants the Director’s motion. On remand
OWCP shall reissue its decision on appellant’s entitlement to FECA benefits for exposure to
COVID-19 while in the performance of his federal duties, and authorize the payment of
appropriate FECA benefits as claimed by appellant.
IT IS HEREBY ORDERED THAT the motion to remand is granted. The decision of
OWCP dated December 16, 2020 is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 16, 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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.J., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Memphis, TN,
Employer
__________________________________________

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

Docket No. 20-0812
Issued: October 19, 2020

Case Submitted on the Record

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

JURISDICTION
On March 2, 2020 appellant filed a timely appeal from a February 11, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than one year has
elapsed from OWCP’s last merit decision, dated February 14, 2008, to the filing of this appeal,1
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.3
1
For final adverse decisions of OWCP issued prior to November 19, 2008, the Board’s review authority is limited
to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R.
§ 501.3(d)(2) (2008).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 11, 2020 decision, OWCP received additional evidence on appeal.
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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 12, 2007 appellant, then a 69-year-old crane operator, filed an occupational
disease claim (Form CA-2) alleging that he developed hearing loss due to factors of his federal
employment, including excessive noise on his job site. He noted that he first became aware of his
condition and first realized that it was caused or aggravated by his federal employment on
November 13, 1985.
In a September 18, 2007 development letter, OWCP informed appellant that it had received
no evidence in support of his claim. It advised him of the type of factual and medical evidence
necessary to establish his claim and provided a questionnaire for his completion. OWCP also
requested that appellant provide any medical reports or audiograms from physicians who have
treated him for his hearing problems. In a separate development letter of even date, it requested
that the employing establishment provide additional information, including comments from a
knowledgeable supervisor, regarding his occupational disease claim. OWCP afforded both parties
30 days to respond.
Appellant submitted an August 1, 1966 health qualification placement record with an
illegible signature which identified the physical requirements of the employment factors of his job
as a crane operator.
Appellant submitted certificates of a medical examination dated from June 28, 1994 to
March 25, 1997, in which Dr. Louis Tyler, Board-certified in family medicine, and Dr. David
McMillan, Board-certified in emergency medicine, made note of the functional requirements of
appellant’s work duties as a crane operator and checked a box marked “No” to indicate their
opinion that appellant would have no limitations in performing his work duties.
Appellant submitted audiogram results dated from July 29, 1976 to March 6, 1998 signed
by multiple registered nurses.
Appellant also submitted multiple position descriptions of his employment duties as a crane
operator, deck hand, laborer, weaver, and warehouseman and made note of the noise exposure he
experienced from large generators, diesel engines, dredge motors, “Caterpillar” motors, steam
cookers, and trucks.
In response to OWCP’s September 18, 2007 development questionnaire, appellant
submitted a statement in which he explained that he first realized that his hearing loss was due to
employment exposure after his physician informed him in 1985 that his hearing was decreasing.
He provided that the last day he was exposed to hazardous noise at work was April 1, 1999.
Appellant asserted that he had no prior ear or hearing problems and that he had no hobbies that
would have contributed to his hearing loss.

2

On January 10, 2008 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a copy of the medical record to Dr. Edgar Franklin, Board-certified in otolaryngology,
for a second opinion evaluation to determine the nature and extent of appellant’s employmentrelated conditions.
In his January 24, 2008 medical report, Dr. Franklin reviewed the SOAF, history of injury
and the medical evidence of record. He noted that appellant’s hearing was essentially the same
from July 29, 1976 to March 6, 1998 and that his hearing was worse as of January 24, 2008.
Dr. Franklin opined that it was possible that appellant’s workplace exposure was sufficient to cause
appellant’s hearing loss. He found mild mixed hearing loss that occurred after appellant’s
March 6, 1998 audiogram and explained that appellant’s hearing loss was not due to his federal
employment because it occurred after his retirement. Dr. Franklin recommended that appellant
undergo further evaluation. He reviewed appellant’s audiometric testing results and found at 500,
1,000, 2,000 and 3,000 Hertz (Hz) losses of 35, 35, 35 and 40 decibels (dBs) on the right,
respectively; and 30, 30, 35 and 45 dBs on the left, respectively. Dr. Franklin found 15.3 percent
binaural hearing loss and diagnosed mild-to-moderate sensorineural hearing loss. He
recommended that appellant receive hearing aids to treat his hearing loss.
In a February 6, 2008 medical note Dr. A. E. Anderson, acting as a district medical adviser
(DMA) agreed with Dr. Franklin, opining that appellant’s hearing loss was not work related since
it occurred after his retirement.
By decision dated February 7, 2008, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that his hearing loss was
causally related to the accepted factors of his federal employment.
In an October 25, 2019 letter, appellant noted that he underwent an audiogram and it was
recommended that he obtain hearing aids to treat his bilateral mixed hearing loss. He attached an
unsigned September 26, 2019 audiogram that diagnosed binaural severe-to-profound hearing loss.
Appellant also attached an October 25, 2019 audiogram in which Dr. Molly Fenwick, an
audiologist, recommended hearing aids.
On February 4, 2020 appellant requested reconsideration of OWCP’s February 7, 2008
decision via an appeal request form signed by him on October 25, 2019.
By decision dated February 11, 2020, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s

4
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).

3

decision for which review is sought.5 The one-year period for requesting reconsideration begins
on the date of the original OWCP decision, but the right to reconsideration within one year also
accompanies any subsequent merit decision on the issues, including any merit decision by the
Board.6 Timeliness is determined by the document receipt date (i.e., the “received date” in
OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).7 The Board has found
that the imposition of the one-year limitation does not constitute an abuse of the discretionary
authority granted OWCP under section 8128(a) of FECA.8
OWCP may not deny a request for reconsideration solely because the application was not
timely filed. When a request for reconsideration is untimely filed, it must nevertheless undertake
a limited review to determine whether the request demonstrates clear evidence of error.9 OWCP’s
regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
request for reconsideration demonstrates clear evidence of error on the part of OWCP.10
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.11 The Board
notes that clear evidence of error is intended to represent a difficult standard.12 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.13 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.14 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.15 In this regard, the Board will limit its focus to a review of how the newly
submitted evidence bears on the prior evidence of record.16 The Board makes an independent

5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).

7

Id. at Chapter 2.1602.4(b) (February 2016).

8

See R.L., Docket No. 18-0496 (issued January 9, 2019).

9

See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

10

Id. at § 10.607(b); supra note 6 at Chapter 2.1602.5(a) (February 2016).

11

G.G., supra note 9.

12

M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra 8.

13

E.B., Docket No. 18-1091 (issued December 28, 2018).

14

J.W., Docket No. 18-0703 (issued November 14, 2018).

15

P.L., Docket No. 18-0813 (issued November 20, 2018).

16

A.F., 59 ECAB 714 (2008); D.G., 59 ECAB 455 (2008).

4

determination as to whether a claimant has demonstrated clear evidence of error on the part of
OWCP.17
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
A request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.18 As appellant did not request reconsideration until
February 4, 2020, more than one year after the issuance of its February 7, 2008 merit decision, it
was untimely filed. Consequently, he must demonstrate clear evidence of error by OWCP in its
February 7, 2008 decision.19
The Board further finds that appellant’s reconsideration request failed to demonstrate clear
evidence of error on the part of OWCP in its last merit decision. OWCP denied his occupational
disease claim because he had not submitted medical evidence containing a physician’s opinion as
to how his hearing loss was causally related to the accepted factors of his federal employment.
The evidence submitted in support of appellant’s request for reconsideration failed to raise a
substantial question concerning the correctness of OWCP’s February 7, 2008 decision.20
Appellant submitted an October 25, 2019 audiogram in which Dr. Fenwick recommended
that he receive hearing aids. As Dr. Fenwick is an audiologist, she is not considered a physician
as defined under FECA21 on the issue of causal relationship.22 Thus, her report is of no probative
value. For this reason, Dr. Fenwick’s October 25, 2019 audiogram is insufficient to demonstrate
clear evidence of error.
The remaining medical evidence consists of an unsigned September 26, 2019 audiogram
that diagnosed binaural severe-to-profound hearing loss. The Board has consistently held that a
17

W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

18

20 C.F.R. § 10.607(a).

19

Id. at § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

20

See P.T., Docket No. 18-0494 (issued July 9, 2018).

21

Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA).
22

See A.B., Docket No. 13-316 (issued June 20, 2013) wherein the Board noted that if a claim for hearing loss is
accepted as causally related and the issue is one of ratability for a schedule award, an audiogram prepared by an
audiologist may determine the percentage of hearing loss if the audiogram is accompanied by a physician’s opinion
certifying that the audiogram as accurate and that the audiologist properly determined the percentage of appellant’s
hearing loss by utilizing the approved standardized procedures.

5

report that is unsigned or bears an illegible signature lacks proper identification and cannot be
considered probative medical evidence as the author cannot be identified as a physician.23 For this
reason, the remaining medical evidence is also insufficient to demonstrate clear evidence of error.
None of the evidence submitted by appellant in connection with his untimely
reconsideration request manifests on its face that OWCP committed an error in denying his
occupational disease claim. He has not submitted evidence of sufficient probative value to raise a
substantial question as to the correctness of OWCP’s decision.24 Accordingly, the Board finds that
OWCP properly denied appellant’s reconsideration request, finding that it was untimely filed and
failed to demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

23

K.C., Docket No. 18-1330 (issued March 11, 2019).

24

Supra notes 11 and 12.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, LAS VEGAS
PROCESSING & DISTRIBUTION CENTER,
Las Vegas, NV, Employer
__________________________________________

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

Docket No. 19-1169
Issued: February 7, 2020

Case Submitted on the Record

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

JURISDICTION
On April 30, 2019 appellant filed a timely appeal from a December 3, 2018 merit decision
and an April 19, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish total
disability from work for the period September 17 to October 12, 2018 causally related to the
accepted August 2, 2018 employment injury; and (2) whether OWCP properly denied appellant’s
request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 9, 2018 appellant, then a 27-year-old mail handler assistant, filed a traumatic
injury claim (Form CA-1) alleging that on August 2, 2018 she sustained an electrical shock to her

1

5 U.S.C. § 8101 et seq.

entire body when she plugged heavy equipment into an electrical outlet while in the performance
of duty. She stopped work on August 2, 2018.
Immediately, following the injury, appellant was treated by Dr. Christian F. Young, Boardcertified in emergency medicine, who diagnosed an electrical injury with headache. Dr. Young
released her from care and returned her to full duty. As appellant continued to experience
headaches and dizziness, she sought treatment on August 6, 2018 from Dr. Gilberto Ruiz, Boardcertified in emergency medicine. Dr. Ruiz obtained a magnetic resonance imaging (MRI) scan of
her brain that was within normal limits. He diagnosed electric shock, cephalgia, mild dehydration,
and possible hypertension.
Appellant received continuation of pay from the employing establishment for the period
August 6 to 8, 2018. She returned to modified-duty work on August 9 and 10, 2018, then again
stopped work.
Dr. Angelo Lambos, a Board-certified internist, submitted reports dated from August 9 to
24, 2018 diagnosing an “electrocution” injury, dizziness, and headache. He restricted appellant to
modified work.
In an August 29, 2018 report, Dr. Paul Reehal, Board-certified in sports medicine, held
appellant off work from August 29 to September 3, 2018 due to severe headaches and dizziness.
He returned her to modified-duty work effective September 4, 2018.
In a September 4, 2018 report, Dr. Cornell Calinescu, Board-certified in emergency
medicine and family practice, diagnosed recurrent headaches. He administered medication and
discharged appellant.
On September 9, 2018 OWCP accepted the claim for “electrocution, initial encounter,”
headache, and “dizziness and giddiness.”
In a report dated September 14, 2018, Dr. Shankar Dixit, a Board-certified neurologist,
diagnosed sequelae of electrocution, headache, blurred vision, and possible cervical radiculopathy.
On October 16, 2018 appellant filed a wage-loss compensation claim (Form CA-7) for the
period September 17 through October 12, 2018.
In a development letter dated October 23, 2018, OWCP notified appellant that the evidence
submitted was insufficient to establish that the accepted conditions had totally disabled her from
work for the claimed period. It advised her of the type of additional evidence needed to establish
her claim, including a medical report from her physician explaining how and why the accepted
injury would have disabled her for work from September 17 through October 12, 2018. Appellant
was afforded 30 days to submit the necessary evidence.
In response, appellant provided a second September 14, 2018 report from Dr. Dixit holding
her off from work for 30 days.2
On October 17, 2018 OWCP obtained a second opinion regarding the nature and extent of
appellant’s injury-related conditions from Dr. Mouchir Harb, Board-certified in neurology and
2

An October 3, 2018 electromyography and nerve conduction velocity study demonstrated mild axonal neuropathy
of the left radial motor nerve.

2

pain medicine. Dr. Harb reviewed the medical record and a statement of accepted facts. He noted
that, as he was “not clear about the severity of the electrocution,” he could not address whether
appellant’s headaches or dizziness were causally related to the accepted August 2, 2018
employment injury. Dr. Harb returned her to full-duty work effective November 1, 2018.
In an October 24, 2018 report, Dr. Dixit noted that appellant reported frequent headaches
and visual disturbances. He administered trigger point injections to the bilateral occiput and
trapezii.
By decision dated December 3, 2018, OWCP denied appellant’s claim for wage-loss
compensation finding that the medical evidence of record was insufficient to establish total
disability from work for the period September 17 to October 12, 2018 causally related to the
accepted August 2, 2018 employment injury.
On January 22, 2019 appellant requested reconsideration and submitted additional
evidence.
An August 15, 2018 computerized tomography scan of appellant’s head demonstrated no
acute intracranial process. A November 4, 2018 cervical MRI scan demonstrated a mild disc
protrusion at C6-7.
In a December 5, 2018 report, Dr. Dixit returned appellant to modified-duty work with
lifting limited to 50 pounds to prevent exacerbation of neck pain and headaches.
By decision dated April 19, 2019, OWCP denied reconsideration of the merits of
appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.4 For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.5 Whether a
particular injury causes an employee to become disabled from work, and the duration of that
disability, are medical issues that must be proven by a preponderance of probative and reliable
medical opinion evidence.6
Under FECA, the term disability means an incapacity, because of an employment injury,
to earn the wages the employee was receiving at the time of the injury.7 Disability is, thus, not
3

Supra note 1.

4

J.J., Docket No. 18-1692 (issued July 16, 2019); J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
5

A.L., Docket No. 19-0285 (issued September 24, 2019); J.J., id.; see also Dominic M. Descaled, 37 ECAB 369,
372 (1986); Bobby Melton, 33 ECAB 1305, 1308 (1982).
6
See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
7

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999).

3

synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.8 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish total disability
for the period September 17 to October 12, 2018, causally related to the accepted August 2, 2018
employment injury.
Appellant submitted reports from several physicians in support of her claim. In an
August 2, 2018 report, Dr. Young diagnosed an electrical injury and discharged her from care with
no restrictions. Dr. Ruiz diagnosed electric shock and headache on August 6, 2018. Similarly,
Dr. Lambos diagnosed an electrocution injury with headache in reports from August 9 to 24, 2018.
Dr. Reehal held appellant off work from August 29 to September 3, 2018 due to headaches and
dizziness, and Dr. Calinescu diagnosed recurrent headaches on September 4, 2018. As none of
these physicians provided an opinion regarding whether appellant was totally disabled from work
during the claimed period due to the accepted injury, their reports are of no probative value and
are insufficient to establish the claim.10 Additionally, Dr. Harb, the second opinion physician, did
not directly address the claimed period of disability in his October 17, 2018 report and thus his
report is also insufficient to establish the wage-loss compensation claim.
Dr. Dixit opined in his September 14, 2018 reports, that appellant should remain off work
for 30 days due to sequelae of the electrocution injury, headache, blurred vision, and possible
cervical radiculopathy. While he opined that the accepted injury totally disabled her from work
for the claimed period, he did not provide rationale explaining how the accepted employment
injury resulted in disability. Therefore, Dr. Dixit’s September 14, 2018 reports are of limited
probative value and insufficient to establish the claim.11
On appeal appellant contends that OWCP should have accepted her wage-loss claim in
reliance on Dr. Dixit’s opinion. As explained above, Dr. Dixit’s reports are insufficient to meet
her burden of proof.
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.

8

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

9

Merle J. Marceau, 53 ECAB 197 (2001).

10
A.L., supra note 5; see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).
11

A.L., supra note 5.

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.12
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.13
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.14 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.15 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not established that OWCP erroneously applied or interpreted a specific
point of law or advanced a new and relevant legal argument not previously considered. Thus, she
is not entitled to a review of the merits of her claim based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).
On January 22, 2019 appellant requested reconsideration of OWCP’s December 3, 2018
decision denying her wage-loss compensation claim for total disability for the period September 17
to October 12, 2018. In support of her request she provided August 15 and November 4, 2018
imaging studies, and Dr. Dixit’s December 5, 2018 report. The Board notes that OWCP denied
appellant’s wage-loss compensation claim because the medical evidence of record did not contain
sufficient medical rationale to establish that the accepted August 2, 2018 injury had totally disabled
her for work for the claimed period. The imaging studies, therefore, are irrelevant to the issue of
total disability in this case as they do not address the claimed period of disability. The Board notes
that the submission of evidence that does not address the particular issue involved does not
constitute a basis for reopening a case.17 Likewise, Dr. Dixit’s December 5, 2018 report did not
address the claimed period of disability and is irrelevant to the issue of whether appellant was
12

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

13
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
14

Id. at § 10.607(a).

15

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

16
Id. at § 10.608(b); L.C., Docket No. 18-0787 (issued September 26, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).
17

L.C., id., 16; Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

totally disabled for work for the claimed period due to the accepted August 2, 2018 employment
injury.
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.18
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
from work for the period September 17 to October 12, 2018, causally related to her August 2, 2018
employment injury. The Board also finds that OWCP properly denied her request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 19, 2019 and December 3, 2018 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 7, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

18

L.C., supra note 16; A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued
April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for reconsideration does not
meet at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER,
Albany, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1793
Issued: June 7, 2018

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 August 21, 2017 appellant, through counsel, filed a timely appeal from a March 8, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than one
year has elapsed from the last merit decision, dated March 13, 2008,2 to the filing of this appeal,

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

For final adverse decisions of OWCP issued prior to November 19, 2008, the Board’s review authority is limited
to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R. § 501.3(d)(2)
(2008). For final adverse decisions issued by OWCP on and after November 19, 2008, the Board’s review authority
is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s decision. See 20 C.F.R.
§ 501.3(e) (2009).

the Board lacks jurisdiction to review the merits of the case pursuant to the Federal Employees’
Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP used the proper standard of review when it treated appellant’s
attorney’s submission as a request for reconsideration and denied it as it was untimely filed and
failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On December 10, 1973 appellant, then a 23-year-old registered nurse, filed a notice of
injury or occupational disease claim (Form CA-1 & 2) alleging that on December 5, 1973 she
twisted her neck in the performance of duty. OWCP accepted the claim for a neck strain and
shoulder sprain.4 Appellant stopped work on December 5, 1973 and returned to her usual
employment on February 27, 1974. She again stopped work on May 3, 1973 and received wageloss compensation for total disability from that date until August 22, 1977, when she resumed work
as a nurse. On April 22, 1982 OWCP found that appellant’s actual earnings effective August 23,
1977 fairly and reasonably represented her wage-earning capacity.5 It paid appellant compensation
based on her loss of wage-earning capacity.
By decision dated March 13, 2008, OWCP suspended appellant’s compensation effective
March 16, 2008 pursuant to 20 C.F.R. § 10.528 as she failed to complete a Form CA-1032
providing her earnings and employment activity, if any, within the past 15 months. It noted that
federal regulations required her to make an affidavit regarding earnings and employment and that
it used a CA-1032 form for that purpose. OWCP advised appellant that she had not completed
CA-1032 forms sent to her on December 8, 2006 and December 13, 2007. It informed her that, if
she completed and returned the enclosed CA-1032 forms covering the relevant periods with
updated medical information, her benefits would be retroactively restored.
On March 8, 2016 appellant completed and signed the December 13, 2007 Form CA-1032
and submitted it to OWCP on September 15, 2016. She indicated that she had been self-employed
in legal services from 2005 to 2014 with no pay or earnings. Appellant advised that she had
received a pension from a private employer in the past 15 months.
In a report dated November 25, 2015, Dr. Bruce A. Silber, a chiropractor, discussed
appellant’s history of an injury to her neck at work on December 5, 1973. He diagnosed
cervicalgia, cervical facet syndrome, and myalgia myositis. Dr. Silber indicated that x-rays

3

5 U.S.C. § 8101 et seq.

4

By decision dated February 6, 1981, OWCP granted appellant a schedule award for five percent permanent
impairment of the right arm. In a March 20, 1989 decision, it determined that she was at fault in having received a
$15,423.82 overpayment because it paid her wage-loss compensation for total disability when it should have paid her
compensation based on her loss of wage-earning capacity.
5
In decisions dated October 29, 1982, OWCP denied modification of its loss of wage-earning capacity
determination.

2

revealed subluxations at C3-4, C-5, C7-T1, and T3-4. He opined that appellant had a permanent
condition due to the December 5, 1973 employment injury.
On February 11, 2016 Dr. Thomas Frederick Jan, an osteopath, noted that appellant
sustained thoracic outlet syndrome following a 1973 employment injury. He diagnosed right
thoracic outlet syndrome “consistent with the history provided regarding her work-related injury
in 1973.” In a June 3, 2016 addendum, Dr. Jan provided a history of the December 5, 1973
employment injury.
Appellant, through counsel, requested on September 8, 2016 that OWCP expand
acceptance of her claim to include thoracic outlet syndrome and cervical subluxations based on
the November 25, 2015 report of Dr. Silber and the February 11 and June 3, 2016 reports of
Dr. Jan. He further requested that it reinstate her wage-loss compensation retroactive to March 16,
2008 based on her submission of the Form CA-1032. Counsel maintained that OWCP procedures
required reinstatement of compensation upon the submission of a completed Form CA-1032
following the suspension of compensation.
By decision dated March 8, 2017, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to demonstrate clear evidence of error. It found that the issue of
whether it should reinstate her compensation was not relevant to the issue of whether the March 13,
2008 decision was proper, noting that wage-loss compensation might be reinstated if medical
evidence supported disability during the claimed period.
On appeal counsel contends that OWCP erred in failing to conduct a merit review as the
issue of claim expansion could be adjudicated when such condition developed. He also maintains
that appellant is entitled to retroactive reinstatement of compensation as she has now submitted
the Form CA-1032.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, an
application for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.6 When determining the one-year period for requesting
reconsideration, the last day of the period should be included unless it is a Saturday, Sunday, or a
federal holiday.7 Timeliness is determined by the document receipt date (i.e., the “received date”
in OWCP’s Integrated Federal Workers’ Compensation System.8 The Board has found that the
imposition of the one-year limitation does not constitute an abuse of the discretionary authority
granted OWCP under section 8128(a) of FECA.9

6

20 C.F.R. § 10.607(a).

7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see
also M.A., Docket No. 13-1783 (issued January 2, 2014).
8

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

9

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

3

OWCP may not deny an application for review solely because the application was not
timely filed. When an application for review is untimely filed, it must nevertheless undertake a
limited review to determine whether the application demonstrates clear evidence of error.10
OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the
claimant’s application for review demonstrates clear evidence of error on the part of OWCP.11
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
her earnings from employment or self-employment, by affidavit or otherwise, in the manner and
at the times the Secretary specifies.12
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work which the employee has performed for the prior 15 months.13 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that
time, OWCP will reinstate compensation retroactive to the date of suspension if the employee
remains entitled to compensation.14
ANALYSIS
The Board finds that OWCP used the incorrect standard of review in considering the
September 8, 2016 request of appellant’s counsel that OWCP expand acceptance of her claim to
include additional conditions and reinstate her compensation based on her submission of a CA1032 form. OWCP determined that the September 8, 2016 correspondence constituted an untimely
request for reconsideration and denied the request as it failed to demonstrate clear evidence of
error.
Although OWCP characterized appellant’s September 8, 2016 letter as a request for
reconsideration, the Board finds that OWCP should have adjudicated her claim to determine
whether her compensation benefits should continue to be suspended or reinstated.15 Appellant’s
counsel advised that she had provided the requested CA-1032 form and maintained that OWCP
should reinstate her compensation. As noted, OWCP’s regulations provide that, if a claimant fails
to file a report regarding any work activities, her compensation is suspended until OWCP receives
the requested report. When the report is received, if the employee remains entitled to

10

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

11

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1602.5(a) (February 2016).

12

5 USC § 8106(b).

13

20 CFR § 10.528; see also A.H., Docket No. 15-241 (issued April 3, 2015).

14

Id.

15
See generally D.D., Docket No. 09-0602 (issued January 15, 2010) (finding that OWCP erred in considering
appellant’s inquiry into how to resume her compensation benefits after it suspended her benefits for failing to attend
a scheduled medical examination as an untimely request for reconsideration).

4

compensation, OWCP will reinstate compensation retroactive to the date of suspension.16 Section
10.528 provides no time limitation on a claimant’s willingness to comply. Thus, OWCP’s
treatment of appellant’s September 6, 2016 request for reinstatement of her compensation based
on her submission of a Form CA1032 was improper.17
Regarding counsel’s request that OWCP expand acceptance of her claim, the Board notes
that OWCP has not issued a decision regarding this issue. Upon return of the case record, OWCP
should consider the request for claim expansion.
CONCLUSION
The Board finds that OWCP applied the improper standard of review when it denied
appellant’s request for reconsideration as it was untimely filed and failed to demonstrate clear
evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: June 7, 2018
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

16

Supra note 12.

17

Supra note 14.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Frederick, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Arthur Schneider, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0559
Issued: June 21, 2018

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 13, 2017 appellant, through counsel, filed a timely appeal from a
December 19, 2016 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.

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 received an overpayment of compensation in the
amount of $19,666.27 for the periods March 1, 2011 to January 1, 2014 and February 1, 2015 to
April 30, 2016 because he concurrently received FECA benefits and retirement benefits from the
Social Security Administration (SSA) without an appropriate offset; (2) whether OWCP properly
denied waiver of recovery of the overpayment; and (3) whether OWCP properly determined that
it would recover the overpayment by deducting $550.00 per month from appellant’s continuing
compensation payments every 28 days.
FACTUAL HISTORY
On July 2, 1991 appellant, then a 42-year-old carpenter, filed a traumatic injury claim
(Form CA-1) alleging that he sustained an injury on June 28, 1991 when he was cutting a piece
of Plexiglas while in the performance of duty. He stated that the Plexiglas whipped out from the
table and cut his left hand, arm, and stomach. Appellant further indicated that he was knocked
backwards during the incident and fell on his back. OWCP accepted the claim for laceration of
the left hand, lumbar strain, and herniated disc. Appellant returned to work on August 19, 1991.
On September 1, 1992 he underwent surgery to remove a cyst from the dorsum left index finger
and became totally disabled until he returned to light duty on September 16, 1992. Appellant
filed a claim for a schedule award (Form CA-7). OWCP granted him a schedule award for 20
percent permanent impairment of the left hand by decision dated January 12, 1994. It later
expanded the acceptance of appellant’s claim to include chronic progressive multiple sclerosis
and placed him on the periodic compensation rolls effective June 25, 1995.
In a form dated April 12, 2016, SSA advised OWCP that appellant had concurrently
received FECA benefits and retirement benefits through the Federal Employees Retirement
System (FERS) for the periods March 1, 2011 to January 1, 2014 and February 1, 2015 to
April 30, 2016. SSA provided the amount that appellant received in retirement benefits
including the amount earned through FERS and the hypothetical amount that he would have
received without FERS. Including FERS, it indicated that appellant was entitled to a monthly
payment of $1,007.80 effective March 2011, $1,044.10 effective December 2011, $1,061.80
effective December 2012, $1,077.70 effective December 2013, $1,453.30 effective
February 2015, and $1,453.30 effective December 2015. Without FERS, appellant was entitled
to a monthly payment of $721.40 effective March 2011, $747.30 effective December 2011,
$760.00 effective December 2012, $771.40 effective December 2013, $837.90 effective
February 2015, and $837.90 effective December 2015.
In a May 13, 2016 letter, OWCP adjusted appellant’s compensation to offset the portion
of his SSA retirement benefits attributable to his federal service. It indicated that he would
receive net compensation of $2,018.76 every 28 days.
In a preliminary determination dated July 15, 2016, OWCP notified appellant that he had
received an overpayment of compensation in the amount of $19,666.27 because it had failed to
reduce his compensation benefits for the periods March 1, 2011 to January 1, 2014 and
February 1, 2015 to April 30, 2016 by the portion of his SSA benefits that were attributable to
his federal service. It calculated the overpayment amount by determining the difference between

2

his SSA amount with and without FERS for each period. OWCP then multiplied the daily offset
amount by the number of days in each period to find a total overpayment of $19,666.27. It
further made a preliminary determination that appellant was without fault in the creation of the
overpayment. OWCP requested that he complete the enclosed overpayment recovery
questionnaire (Form OWCP-20) and submit supporting financial documents. Additionally, it
notified appellant 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.
On August 1, 2016 appellant, through counsel, requested a prerecoupment hearing by a
hearing representative of OWCP’s Branch of Hearings and Review. He requested a waiver of
recovery asserting that he was unaware of the offset when receiving Social Security benefits and
retirement benefits. Appellant further submitted an overpayment recovery questionnaire which
listed monthly income of $1,452.90 for himself, $511.00 for his spouse, and $2,018.76 for FECA
benefits, for total monthly income of $3,982.66. He also listed expenses of $3,246.85, which
included in part $800.00 for rent or mortgage, $400.00 for food, $45.00 for clothing, $1,676.85
for utilities and other household expenses, and $325.00 in debts. Appellant noted that he had
assets of $1,415.67.
A telephonic prerecoupment hearing was held on November 9, 2016. Appellant
reiterated his request for waiver and the hearing representative held the case record open for 30
days for the submission of additional evidence.
On November 16, 2016 counsel submitted additional financial statements and
documentation. Appellant submitted an updated list of expenses for $800.00 of rent, $386.00 of
Cigna medical copays, $170.00 of electric utility, $65.00 of fuel oil, $46.00 of telephone
services, $30.00 of cable television and internet services, $286.00 of car payment, $27.00 of
renter’s insurance, $59.00 of auto insurance, $53.00 of NRA term life insurance, $64.00 of
Nationwide life insurance, $15.00 of newspapers, $10.00 of ambulance/medic fees, $25.00 of
Chambersburg Hospital fees, $19.00 of prescription copays, $293.00 of medical copays, $12.00
of AAA membership, $11.00 of AAA accident insurance premiums, $28.00 of AAA Mutual
Omaha and high insurance accident premiums, $500.00 of groceries, $120.00 of gasoline, $40.00
of clothing, $550.00 of dental bills, and $2,140.00 of medical supplies, for a total of $5,749.00.
By decision dated December 19, 2016, OWCP found an overpayment of compensation in
the amount of $19,666.27 for the periods March 1, 2011 to January 1, 2014 and February 1, 2015
to April 30, 2016 because it had failed to offset appellant’s compensation payments for the
portion of his SSA retirement benefits that were attributable to his federal service. It found that
he was not at fault in creating the overpayment, but denied waiver of recovery as his income
exceeded his expenses. OWCP noted that appellant had included expenses for cable television
and internet services in the amount of $30.00, which were not considered ordinary or necessary
living expenses. It further found that the Nationwide life insurance premiums of $64.00 and
AAA accident insurance premiums totaling $28.00 were duplicative of NRA and AAA
premiums which were already accounted for. OWCP noted that appellant had one outstanding
dental bill for $286.00 and one outstanding medical bill for $663.00 and divided them by 12 to

3

calculate monthly amounts of $24.00 and $55.00, respectively.3 It calculated that appellant’s
monthly income was $3,982.00 and his monthly expenses totaled $3,016.00, which yielded a
monthly surplus amount of $966.00. OWCP determined that it would recover the overpayment
by deducting $550.00 per month from appellant’s continuing compensation payments every 28
days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.4 Section 8129(a) of FECA provides that, in pertinent part, when an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.5
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee received SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits attributable to his or her federal service.6
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply. In disability cases, FECA benefits will be reduced by
the SSA benefits paid on the basis of age and attributable to the employee’s federal service.7 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: Where a claimant had received SSA benefits, OWCP will obtain information from the
SSA on the amount of the claimant’s SSA benefits beginning with the date of eligibility to FECA
benefits. SSA will provide the actual amount of SSA benefits received by the claimant/
beneficiary. It will also provide a hypothetical SSA benefit computed without the FERS covered
earnings. OWCP will then deduct the hypothetical benefit from the actual benefit to determine
the amount of benefits which are attributable to federal service and that amount will be deducted
from FECA benefits to obtain the amount of overpayment.8

3

In its December 19, 2016 decision, OWCP incorrectly noted that the dental bill was $286.00 when dividing it by
12 to obtain a monthly amount of $24.00. However, the Board finds that OWCP committed harmless error as it had
previously indicated the correct amount of $266.00 and the difference of $2.00 per month will not change the
outcome of this appeal.
4

5 U.S.C. § 8102.

5

Id. at § 8129(a).

6

Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (January 1997);
Chapter 2.1000.11(a)(b) (February 1995).
8

See L.B., Docket No. 11-2076 (issued August 29, 2012).

4

ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a laceration of the left hand, lumbar strain, and
herniated disc while at work on June 28, 1991 and awarded him a schedule award for 20 percent
permanent impairment of the left hand. It later expanded the acceptance of the claim to include
chronic progressive multiple sclerosis and placed appellant on the periodic compensation rolls
effective June 25, 1995.
In a form dated April 12, 2016, SSA advised OWCP that appellant had concurrently
received FECA benefits and retirement benefits through the FERS for the periods March 1, 2011
to January 1, 2014 and February 1, 2015 to April 30, 2016. Appellant cannot receive both wageloss compensation and federal retirement benefits concurrently.9 Consequently, he received an
overpayment of compensation.
OWCP calculated the amount of overpayment by determining the difference between the
SSA amount with and without FERS for each period and multiplying the daily offset amount by
the number of days in each period, to find a total overpayment of $19,666.27. The record
includes an overpayment worksheet explaining the overpayment calculation. There is no
contrary evidence of record and the Board, accordingly, finds an overpayment of compensation
in the amount of $19,666.27.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA 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.”10 Thus, a
finding that appellant was without fault does not automatically result in waiver of recovery of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good
conscience.11
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 substantially 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.12 An individual’s liquid assets
9

5 U.S.C. § 8116(d). See J.W., Docket No. 16-1355 (issued January 10, 2017); see also FECA Bulletin No.
97-09 (issued February 3, 1997).
10

5 U.S.C. § 8129(a)-(b).

11

See L.S., 59 ECAB 350 (2008).

12

20 C.F.R. § 10.436. OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(June 2009).

5

include, but are not limited to cash, the value of stocks, bonds, savings accounts, mutual funds,
and certificates of deposits.13 Nonliquid assets include, but are not limited to the fair market
value of an owner’s equity in property such as a camper, boat, second home and furnishings/
supplies, vehicle(s) (i.e., any vehicles above the two allowed per immediate family), jewelry, and
artwork.14
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.15 To establish that a valuable right has been
relinquished, it must be shown that the right was in fact valuable, that it cannot be regained, and
that the action was based chiefly or solely in reliance on the payments or on the notice of
payment.16
ANALYSIS -- ISSUE 2
OWCP found that appellant was without fault in the creation of the overpayment of
compensation. The overpayment cannot be waived, however, unless recovery would defeat the
purpose of FECA or would be against equity and good conscience. In order to establish that
repayment of the overpayment would defeat the purpose of FECA, appellant must show that he
requires substantially all of his income to meet current ordinary and necessary living expenses
and that his assets do not exceed the resource base as determined by OWCP’s procedures.17
OWCP determined that appellant did not require substantially all of his income to meet
ordinary and normal living expenses. Appellant asserted that he had a monthly income of
$3,982.00 and monthly expenses of $5,749.00. OWCP excluded appellant’s expenses for cable
television and internet services of $30.00 because they are not considered ordinary or necessary
living expenses.18 It further excluded Nationwide life insurance premiums of $64.00 and AAA
accident insurance premiums of $28.00 as they were duplicative of NRA and AAA premiums
which were already accounted for.19 OWCP also divided outstanding dental and medical bills by
12 to obtain monthly amounts of $24.00 and $55.00, respectively. It determined that appellant’s
monthly expenses totaled $3,016.00.

13

Id.

14

Id.

15

20 C.F.R. § 10.437.

16

Id. at § 10.437(b)(1).

17

Id. at § 10.436.

18

See S.W., Docket No. 11-1687 (issued July 23, 2012).

19
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(3) (June 2009); see also J.W., supra note 9.

6

OWCP found that appellant’s monthly income of $3,982.00 and his monthly expenses of
$3,016.00 yielded a monthly surplus amount of $966.00. An individual is deemed to need
substantially all of his monthly income to meet current and ordinary living expenses if monthly
income does not exceed monthly expenses by more than $50.00.20 As appellant’s current income
exceeds his ordinary and necessary living expenses by $966.00, he does not need substantially all
of his income for ordinary and necessary living expenses.21
Additionally, the evidence of record does not demonstrate that repayment of the
overpayment would be against equity and good conscience. Appellant submitted no evidence
that he relied upon the incorrect payments to his detriment or that he would experience severe
financial hardship attempting to repay the debt.22 Consequently, OWCP properly denied waiver
of recovery of the overpayment.
Appellant maintained that he was not at fault in creating the overpayment and repayment
would cause financial hardship. However, the fact that an error by OWCP resulted in an
overpayment does not relieve a claimant from liability for repayment.23 Further, as found by the
Board, the evidence does not demonstrate that appellant would experience financial hardship
repaying the overpayment.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.24
Section 10.441(a) of the regulations provides that when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.25
ANALYSIS -- ISSUE 3
The Board finds that OWCP gave due regard to the financial information provided by
appellant. Appellant’s monthly household income totaled $3,982.00 and his expenses totaled
$3,016.00, equaling a monthly surplus amount of $966.00 per month. The Board finds that
20

Id. at Chapter 6.200.6(a)(1); see also Desiderio Martinez, 55 ECAB 336 (2004).

21

As appellant’s income exceeds his ordinary and necessary living expenses by more than $50.00, it is not
necessary for OWCP to consider whether his assets exceed the allowable resource base. See J.W., supra note 9.
22

20 C.F.R. § 10.437.

23

Id. at § 10.435(a); Lawrence J. Dubuque, 55 ECAB 667 (2004).

24

See Lorenzo Rodriguez, 51 ECAB 295 (2000).

25

20 C.F.R. § 10.441(a).

7

OWCP properly determined that the rate of recovery should be $550.00 from appellant’s
continuing compensation payments every 28 days.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $19,666.27 for the periods March 1, 2011 to January 1, 2014 and February 1, 2015 to
April 30, 2016 because he concurrently received FECA benefits and retirement benefits from the
SSA without an appropriate offset. The Board further finds that OWCP properly denied waiver
of recovery of the overpayment and properly determined that it would recover the overpayment
by deducting $550.00 per month from appellant’s continuing compensation payments every 28
days.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 21, 2018
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

8