United States Department of Labor
Employees’ Compensation Appeals Board
_____________________________________________
C.H., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, FOOD & DRUG ADMINISTRATION,
Bethesda, MD, Employer
_____________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-742
Issued: June 3, 2013

Case Submitted on the Record

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

JURISDICTION
On February 11, 2013 appellant filed a timely appeal from a January 9, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational
exposure claim and a January 29, 2013 nonmerit decision denying her request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
developed ulnar neuropathy as a result of factors of her federal employment; and (2) whether
OWCP properly denied her request for further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 27, 2012 appellant, then a 33-year-old microbiologist, filed an
occupational disease claim (Form CA-2) alleging that she developed a repetitive motion injury in
her right and left wrists from weeks of serotyping approximately 100 samples a day. She noted
that her right wrist was worse than the left with pain and numbness radiating to her forearm.
Appellant first became aware of her condition on August 20, 2012 and of its relationship to her
employment on August 22, 2012. She sought medical treatment on August 30, 2012 and notified
her supervisor on October 16, 2012.
In an August 30, 2012 treatment note, C.L. Dunn, a registered nurse, reported that
appellant presented to the occupational health clinic with bilateral pain in her hands and wrists,
which progressively worsened over the prior two weeks. Appellant reported that her pain was
exacerbated when using a pipette. Nurse Dunn noted possible inflammation of the right
carpometacarpal joint and possible strain of the left wrist muscles and tendons. In a
September 21, 2012 treatment note, she reported that appellant returned with bilateral pain in her
wrists and hands. Appellant noted that her pipefitting duties finished on August 30, 2012. She
stated that her symptoms returned when she began pipetting again on September 19, 2012.
Nurse Dunn noted recurrent symptoms associated with pipetting.
By letter dated November 2, 2012, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit it within 30 days. In another November 2, 2012 letter, OWCP
requested the employing establishment provide information pertaining to appellant’s
occupational exposure and employment duties.
In a November 13, 2012 statement, appellant described her duties as a microbiologist
involved serotyping Salmonella samples which required repetitive motion. This involved
labeling and filling several hundred test tubes each day, taking the tubes in and out of bath water,
screwing tube caps on and off and dispensing media. The samples had to be serotyped quickly
and appellant performed such tasks for approximately two and a half months, seven hours a day.
She first noticed the pain on August 20, 2012 which became worse by August 30, 2012, causing
her to seek medical treatment. Appellant stopped serotyping samples on August 30, 2012. On
September 19, 2012 she felt an increase in pain when she was required to take media by
removing caps off of approximately 75 test tubes, dispense media via pipetting and place caps
back onto the tubes. Appellant sought further treatment with an occupational nurse on
September 21, 2012 because the earliest appointment she could get with her primary care
physician was not until November 14, 2012. She stated that she had no previous injuries to her
hands or wrists and did not do outside work which required repetitive motion.
By letter dated November 14, 2012, the employing establishment advised that it
concurred with appellant’s description of her duties due to the unusually large amount of
repetitive work that had to be completed around the time of her injury. It noted that she was a
microbiologist who performed serotyping of a large number of Salmonella. This involved
making multiple dilutions through the use of single channel automatic pipets by holding the pipet
in one hand and pushing the plunger up and down several times. The employing establishment
noted that the pressure required to do this properly had to be delivered in a controlled, smooth

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manner. Appellant did this daily for several weeks. The employing establishment further noted
that it had ordered an electronic motorized pipet for appellant which did not require the same
type of repetitive, tightly constrained pressure to work. An official microbiologist position
description was provided.
In a November 14, 2012 medical report, Dr. Sharon L. Balanson, Board-certified in
internal medicine, reported that appellant complained of pain and burning in her right hand,
located at the thumb base with numbness in the lateral forearm. She noted that appellant worked
in a laboratory, performed repetitive motions the majority of the day when pipetting and started
to develop symptoms in mid-August 2012. Upon physical examination, Dr. Balanson diagnosed
neuropathy and ulnar nerve distribution of the hand.
In a November 19, 2012 Attending Physician’s Report (Form CA-20), Dr. Balanson
noted that repetitive motion was required at appellant’s workplace and beginning on April 20,
2012, appellant developed right wrist pain and numbness which radiated to the right forearm.
She diagnosed ulnar neuropathy and checked the box marked “yes” when asked if she believed
the condition was caused or aggravated by appellant’s employment activities.
In a December 10, 2012 report, Dr. Balanson reported that appellant complained of
continued right hand and forearm pain, suspecting that appellant could have tendinitis of the
wrist. Additional testing was ordered.
In a December 10, 2012 diagnostic report, Dr. Rakhi Goel, a Board-certified diagnostic
radiologist, reported that an x-ray of the right hand and right wrist revealed negative with no
evidence of acute fracture, dislocation, significant degenerative disease or other bony
abnormality. Visualized soft tissue was unremarkable.
By decision dated January 9, 2013, OWCP denied appellant’s claim finding that the
medical evidence of record failed to establish that her diagnosed ulnar neuropathy condition was
causally related to the accepted work-related activities.
On January 14, 2013 appellant requested reconsideration of OWCP’s decision. In a
January 5, 2013 report, Dr. Harvey M. Cohen, a Board-certified orthopedic surgeon, stated that
appellant became aware of pain in the radial side of her right wrist during late summer 2012. He
noted that the pain was associated with thumb movement and appellant complained of numbness
in that area. Dr. Cohen stated that appellant associated her pain with her work as a
microbiologist and noted that appellant used her hands on betting machines. Upon physical
examination and review of diagnostic testing, he diagnosed de Quervain’s syndrome.

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By decision dated January 29, 2013, OWCP denied appellant’s request for
reconsideration finding that she did not raise any substantive legal questions or include new and
relevant evidence.2
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 The opinion of the physician must be one of reasonable medical certainty
2

The Board notes that appellant submitted additional evidence after OWCP rendered its January 29, 2013
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
3

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

4

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

5

Elaine Pendleton, supra note 3.

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

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

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and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant engaged in repetitive activities in her employment duties
as microbiologist. It denied her claim, however, on the grounds that the medical evidence failed
to establish a causal relationship between her work activities and her ulnar neuropathy. The
Board finds that the medical evidence of record is insufficient to establish that appellant
developed ulnar neuropathy causally related to factors of her federal employment as a
microbiologist.
In medical reports dated November 14 to December 10, 2012, Dr. Balanson reported that
appellant complained of pain and burning in her right hand located at the thumb base with
numbness in the lateral forearm. She noted that appellant worked in a laboratory and performed
repetitive motions the majority of the day when pipetting. Appellant started to develop
symptoms in mid-August 2012 when she developed right wrist pain and numbness which
radiated to the right forearm. Upon physical examination, Dr. Balanson diagnosed neuropathy
and ulnar nerve distribution of the hand. In a November 19, 2012 Form CA-20, she checked the
box marked “yes” when asked if she believed the condition was caused or aggravated by
appellant’s employment activities. In a December 10, 2012 report, Dr. Balanson reported that
appellant complained of continued right hand and forearm pain and speculated that she could
have tendinitis of the wrist.
The Board finds that the opinion of Dr. Balanson is not well rationalized. Dr. Balanson
provided a diagnosis of ulnar neuropathy but failed to explain how appellant’s work duties
caused or aggravated the medical condition. Though she checked the box marked “yes” when
asked if she believed appellant’s condition was caused or aggravated by her employment, the
Board has held that a form report that addresses causal relationship with a checkmark, without
medical rationale explaining how the work conditions caused the alleged injury, is of diminished
probative value and insufficient to establish causal relationship.9 Dr. Balanson did not provide a
detailed medical history and only briefly noted that appellant worked in a laboratory performing
repetitive motions the majority of the day when pipetting. She failed to adequately describe the
work duties, did not specify how long she worked as a microbiologist, how many hours per day
she worked and the frequency of other physical movements and tasks. Medical reports without
adequate rationale on causal relationship are of diminished probative value and do not meet an
employee’s burden of proof.10 The opinion of a physician supporting causal relationship must
8

James Mack, 43 ECAB 321 (1991).

9

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

10

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

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rest on a complete factual and medical background supported by affirmative evidence, address
the specific factual and medical evidence of record and provide medical rationale explaining the
relationship between the diagnosed condition and the established incident or factor of
employment.11 Without medical reasoning explaining how appellant’s employment factors
caused her ulnar neuropathy, Dr. Balanson’s reports are insufficient to meet appellant’s burden
of proof.12
The remaining medical evidence of record is also insufficient to establish causal
relationship. Dr. Goel’s December 10, 2012 diagnostic reports noted unremarkable findings of
the right hand and wrist. While Nurse Dunn’s August 30 and September 21, 2012 medical notes
document appellant’s treatment for her wrist and hand, they are of no probative value as a nurse
is not a physician as defined under FECA.13 The medical evidence of record fails to support that
appellant developed right ulnar neuropathy as a result of her federal employment duties.14
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s ulnar neuropathy and factors of her federal employment as a
microbiologist. As such, appellant has failed to meet her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
To reopen a case for merit review under section 8128(a), the evidence or argument
submitted by a claimant must: (1) show that OWCP erroneously applied or interpreted a specific
point of law; (2) advance a relevant legal argument not previously considered by OWCP; or
(3) constitute relevant new evidence not previously considered by OWCP.15 Section 10.608(b)
of OWCP regulations provide that when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.16
ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.

11

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

12

C.B., Docket No. 08-1583 (issued December 9, 2008).

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Nurses, physician’s assistants, physical and occupational therapists are not “physicians” as defined by FECA,
their opinions regarding diagnosis and causal relationship are of no probative medical value. 5 U.S.C. § 8101(2) of
FECA provides that the term “physician” includes surgeons, podiatrists, dentists and clinical psychologists.
14

R.M., Docket No. 11-1921 (issued April 10, 2012).

15

D.K., 59 ECAB 141 (2007).

16

K.H., 59 ECAB 495 (2008).

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The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In her January 14, 2012 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. She did not advance a new and
relevant legal argument. Appellant’s argument was that her injury was employment related but
the underlying issue in this case was whether her injury was causally related to the accepted
factors of federal employment. That is a medical issue which must be addressed by relevant
medical evidence.17 A claimant may obtain a merit review of an OWCP decision by submitting
new and relevant evidence. In this case, appellant failed to submit any new and relevant
evidence addressing causal relationship.
While appellant submitted a new medical report from Dr. Cohen dated January 5, 2013,
this report is not relevant in establishing causal relationship between appellant’s diagnosed
condition and factors of her federal employment as a microbiologist. Dr. Cohen’s report merely
related appellant’s own complaints that she became aware of pain in the radial side of her right
wrist during late summer 2012, associated her pain with her work as a microbiologist and used
her hands on betting machines. While he provided a new diagnosis of de Quervain’s syndrome,
he did not provide his own medical opinion as to the cause of appellant’s de Quervain’s
syndrome. The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.18 While appellant
submitted new evidence, it was not relevant in addressing causal relationship. She may obtain a
merit review of an OWCP decision by submitting new and relevant evidence. In this case,
appellant failed to submit any new and relevant evidence addressing causal relationship.
Evidence submitted by appellant after the final decision cannot be considered by the
Board. As previously noted, the Board’s jurisdiction is limited to reviewing the evidence that
was before OWCP at the time of its decision.19 Appellant may submit additional evidence,
together with a written request for reconsideration, to OWCP within one year of the Board’s
merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). She did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.20

17

See Bobbie F. Cowart, 55 ECAB 746 (2004).

18

Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).

19

20 C.F.R. § 501.2(c)(1).

20

Sherry A. Hunt, 49 ECAB 467 (1998).

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her right
ulnar neuropathy is causally related to factors of her federal employment as a microbiologist.
OWCP properly denied her request for reconsideration without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated January 29 and 9, 2013 are affirmed.
Issued: June 3, 2013
Washington, DC

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

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

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

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

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

Docket No. 11-1795
Issued: August 2, 2012

Case Submitted on the Record

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

JURISDICTION
On July 28, 2011 appellant filed a timely appeal from a February 2, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP) which granted her a schedule award.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than 19 percent permanent impairment of each
leg for which she received a schedule award.
FACTUAL HISTORY
On April 4, 2001 appellant, then a 37-year-old letter carrier, injured her ankles, knees and
wrist when she stepped off a porch and fell while delivering mail. OWCP accepted the claim for
bilateral ankle strains, left knee strain, bilateral knee contusions, right knee meniscal tear,
1

5 U.S.C. §§ 8101-8193.

bilateral wrists contusion and lumbar strain.2 It authorized arthroscopic surgery on the right knee
which was performed on April 7, 2003 and July 12, 2004.
Initial 2001 medical reports diagnosed left knee strain, left ankle strain, bilateral knee
contusions and hand abrasion. Appellant came under the treatment of Dr. Vatche Cabayan, a
Board-certified orthopedist, in November 21, 2001 for bilateral knee and ankle pain from a
work-related fall. Dr. Cabayan diagnosed anterior cruciate ligament tear of both knees. A
December 19, 2001 magnetic resonance imaging (MRI) scan of the right knee revealed findings
suggesting a partial tear or sprain of the anterior cruciate ligament and a grade 1 or 2
intrasubstance tear with the posterior horn of the medial meniscus. Dr. Cabayan noted a
March 6, 2002 MRI scan of the left knee revealed grade 1 or 2 nonarticulating intrasubstance
tear of the posterior horn of the medial meniscus and findings suggesting a partial tear of the
anterior cruciate ligament. A November 7, 2002 left ankle MRI scan revealed chronic partial
tears of the calcaneofibular and talofibular ligaments along the anterolateral aspect of the ankle
and early degenerative joint disease. After conservative care failed, on April 7, 2003,
Dr. Cabayan performed right arthroscopic surgery, synovectomy, chondroplasty and anterior
cruciate ligament tightening and diagnosed chronic patellofemoral pain and partial tear of the
anterior cruciate ligament. Appellant continued to have chronic right knee pain with laxity of the
anterior cruciate ligament. On July 12, 2004 Dr. Cabayan performed right arthroscopic surgery,
synovectomy and chondroplasty and diagnosed internal derangement of the right knee.
Appellant continued to be treated by Dr. Cabayan from October 28, 2008 to March 4,
2009 for bilateral knee and ankle pain. Dr. Cabayan noted her complaints of buckling, limping,
swelling and stiffness. Appellant was also treated by Dr. Lawrence Weil, a Board-certified
anesthesiologist, for low back pain with radiation into the right lower extremity. Dr. Weil
diagnosed lateral L5-S1 disc protrusion by MRI scan and annular tear with radiculopathy as
confirmed by electromyogram (EMG). He performed a series of right L5-S1 and S1-S2
transforaminal epidural steroid injections.
On April 8, 2009 appellant filed a claim for a schedule award. She submitted a
March 11, 2009 report from Dr. Cabayan, who opined that she reached maximum medical
improvement.
Dr. Cabayan diagnosed bilateral knee internal derangement, status post
arthroscopy twice on the right knee with synovectomy, chondroplasty and shrinkage of the
anterior cruciate ligament; mild injury to the anterior cruciate ligament on the left, grade 2
changes along the medial meniscus and partial tear of the anterior talofibular ligament especially
for the left ankle. Examination revealed normal deep tendon reflexes at the knees and ankles
bilaterally, negative straight leg raises, normal sensory function to pinwheel throughout, strength
was a grade 4 for quadriceps and hamstrings bilaterally and strength was a grade 5 for ankle
dorsiflexion, plantarflexion and subtalar inversion and eversion with bilateral laxity of the
ankles. Range of motion of the knees was 180 degrees of extension and 145 degrees of flexion,
ankle dorsiflexion was 10 degrees and plantarflexion was 40 degrees, there was mild crepitation
of the knees, tenderness on the patella and medial joint line bilaterally, anterior drawers test
revealed mild laxity bilaterally of the knees, tenderness along the plafond at the knees with mild
2

Appellant filed a claim for a March 6, 2006 injury sustained that was accepted for left foot contusion and left
fourth toe contusion, claim File No. xxxxxx842. That claim is not currently before the Board on appeal.

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instability to anterior drawer testing. Dr. Cabayan opined that appellant had 35 percent
work-related impairment of each leg in accordance with the fifth edition of the A.M.A., Guides.3
He arrived at this number by combining 23 percent impairment of each leg for lack of flexion
and extension strength, 7 percent impairment of each leg for mild cruciate ligament laxity, 5
percent impairment of each leg for patellar chondromalacia and contusion and 5 percent
impairment of each leg due to ankle laxity.
In an April 16, 2009 letter, OWCP requested that Dr. Cabayan submit an assessment of
permanent impairment in accordance with the sixth edition of the A.M.A., Guides4 which OWCP
was to begin using effective May 1, 2009.
In a letter dated April 20, 2009, Dr. Cabayan indicated that appellant’s impairment rating
was completed on September 3, 2008 and March 11, 2009 and that the fifth edition of the
A.M.A., Guides would apply. He did not submit a revised impairment rating under the sixth
edition of the A.M.A., Guides.
Appellant continued to submit reports from Dr. Cabayan dated April 15, 2009 to
September 27, 2010, who treated her for low back, knees and left ankle pain. Dr. Cabayan
recommended additional lumbar steroid injections. Also submitted were reports from Dr. Weil
dated May 11 to November 23, 2009, who diagnosed lumbar discogenic pain with radicular
component, facet joint changes and small disc herniations by MRI scan. Dr. Weil performed a
series of epidural steroid injections.
In a September 16, 2010 letter, OWCP requested that Dr. Cabayan rate appellant’s
permanent impairment in accordance with the sixth edition of the A.M.A., Guides.
Appellant submitted reports from Dr. Cabayan dated September 27 to November 10,
2010, who treated her for bilateral knee pain and sacroiliac joint pain. Also submitted were
reports from Dr. Weil dated September 27 to November 8, 2010, who diagnosed sacroiliac joint
tenderness, lumbar discogenic pain and facet changes and recommended a trial of transforaminal
steroid injections.
In a January 20, 2011 report, OWCP’s medical adviser reviewed the medical record
including Dr. Cabayan’s March 11, 2009 report and opined that appellant reached maximum
medical improvement on March 11, 2009. She noted that, under Chapter 16 of the sixth edition
of the A.M.A., Guides, appellant had 19 percent impairment of each leg. The medical adviser
explained that impairment due to bilateral ankle joint strain, under Table 16-2, Foot and Ankle
Regional Grid, appellant had a default impairment of class 1, bilateral ankle joint ligamentous
joint laxity with a mild ligamentous laxity, which yielded a grade C default impairment of five
percent under Table 16-2, page 502 of the A.M.A., Guides. Applying the net adjustment formula
at pages 516-22 of the A.M.A., Guides, she found that appellant had a net adjustment of two.
The medical adviser adjusted the impairment rating two places to the right, for a grade E, to
conclude that appellant had seven percent impairment of each leg for bilateral ankle joint
3

A.M.A., Guides (5th ed. 2001).

4

Id. (6th ed. 2008).

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ligamentous joint laxity. For the knees, under Table 16-3,5 Knee Regional Grid, appellant had a
class 1 impairment for bilateral joint cruciate or collateral joint laxity, mild, which yielded a
grade C default impairment of 10 percent at Table 16-3, page 510 of the A.M.A., Guides.
Applying the net adjustment formula at pages 516-22 of the A.M.A., Guides, the medical adviser
considered appellant’s grade modifiers and found a net adjustment of two. She adjusted the
impairment rating, noting the default position was modified by two, for a grade E, concluding
that appellant had a 13 percent impairment of each leg for bilateral joint cruciate or collateral
joint laxity. The medical adviser used the Combined Values Chart, page 604 and opined that
appellant had a 19 percent impairment of each leg. She noted that Dr. Cabayan utilized the fifth
edition of the A.M.A., Guides, but that the sixth edition was the current standard for impairment
determinations.
In a decision dated February 2, 2011, OWCP granted appellant a schedule award for 19
percent impairment for each lower extremity. The period of the award was from March 11, 2009
to April 16, 2011.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions issued
beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be used.9
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).10 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and

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OWCP’s medical adviser noted that the impairment for bilateral knee joint cruciate or collateral joint laxity was
found in Table 16-2. This appears to be a typographical error as the knee joint impairment for this diagnosis is
found in the Knee Regional Grid, Table 16-3, on page 510.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

FECA Bulletin No. 09-03 (issued March 15, 2009).

10

A.M.A., Guides 3, section 1.3, ICF: A Contemporary Model of Disablement.

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Clinical Studies (GMCS).11 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).12 The grade modifiers are used on the net adjustment formula described above
to calculate a net adjustment. The final impairment grade is determined by adjusting the grade
up or down the default value C, by the calculated net adjustment.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical consultant for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with OWCP medical
consultant providing rationale for the percentage of impairment specified.14
ANALYSIS
The sixth edition of the A.M.A., Guides provides that lower extremity impairments be
classified by diagnosis which is then adjusted by grade modifiers according to the formula noted
above.15 Appellant’s accepted conditions included bilateral knee and ankle conditions. On
February 2, 2011 she was granted a schedule award for 19 percent permanent impairment of the
bilateral right lower extremities using the applicable table of the sixth edition of the A.M.A.,
Guides. The section of the A.M.A., Guides which rates diagnosis-based impairments for the
lower extremities is located at Chapter 16, which states at page 497, section 16.2a that
impairments are defined by class and grade.
Although Dr. Cabayan’s March 11, 2009 report found 35 percent impairment of each leg,
this report was based on the fifth edition of the A.M.A., Guides. OWCP subsequently asked that
he rate impairment under the sixth edition of the A.M.A., Guides since, as noted, the sixth
edition is to be used for decisions issued beginning May 1, 2009. Dr. Cabayan did not submit a
responsive report. Thus, as he did not assess impairment under the appropriate edition of the
A.M.A., Guides, his impairment rating is of little probative value.16
Consequently, OWCP properly had its medical adviser review the file17 and she used
findings contained in Dr. Cabayan’s March 11, 2009 report to base her impairment rating under
the sixth edition of the A.M.A., Guides. The medical adviser properly found that, in accordance
with Table 16-2, Foot and Ankle Regional Grid, appellant’s impairing diagnosis was bilateral
ankle joint ligamentous joint laxity, mild, which she rated as class 1, with a five percent default
11

Id. at 494-531.

12

Id. at 521.

13

Id. at 497.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
15

Supra notes 12, 13.

16

See J.G., Docket No. 09-1128 (issued December 7, 2009).

17

J.Q., 59 ECAB 366 (2008) (it is well established that, when the examining physician does not provide an
estimate of impairment conforming to the A.M.A., Guides, OWCP may rely on the impairment rating provided by a
medical adviser).

5

impairment value. She applied grade modifiers and applied the net adjustment formula to find
seven percent impairment of each leg due to the bilateral ankle conditions. For appellant’s
bilateral knee conditions, the medical adviser properly found that, in accordance with Table 16-3,
Knee Regional Grid,18 appellant’s impairing diagnosis was bilateral joint cruciate or collateral
joint laxity, mild, which she rated as class 1, which has a default 10 percent lower extremity
impairment. She noted the applicable grade modifiers and used the net adjustment formula to
find 13 percent impairment of each leg for bilateral knee conditions. The medical adviser
combined the ankle and knee impairments to find 19 percent impairment of each leg.
OWCP’s medical adviser properly explained her calculations under the sixth edition of
the A.M.A., Guides. The Board finds that the weight of medical evidence establishes that
appellant has no more than 19 percent permanent impairment of each leg. This rating was based
on the applicable protocols and tables of the sixth edition of the A.M.A., Guides. As appellant
did not submit any medical evidence referring to the sixth edition of the A.M.A., Guides to
support impairment greater than the 19 percent for each leg, the Board will affirm OWCP’s
February 2, 2011 decision.
On appeal, appellant asserts that she wanted her schedule award to be calculated under
the fifth edition of the A.M.A., Guides. As noted, OWCP began using the sixth edition of the
A.M.A., Guides, effective May 1, 2009.19 For decisions issued beginning May 1, 2009, the sixth
edition of the A.M.A., Guides will be used in determining schedule award impairment.20 In this
case, OWCP’s medical adviser properly utilized the sixth edition of the A.M.A., Guides in
calculating appellant’s schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a 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 19 percent impairment of the bilateral lower
extremities for which she received a schedule award.

18

Supra note 3 at 510.

19

Supra note 9.

20

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the February 2, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 2, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE AIR FORCE, DAVISMONTHAN AIR FORCE BASE, Tucson, AZ,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-0137
Issued: November 1, 2018

Case Submitted on the Record

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

On October 24, 2017 appellant filed a timely appeal from a May 9, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 18-0137.
The Board has duly considered the matter and finds that the case is not in posture for a
decision. In the case of William A. Couch,1 the Board held that when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. In the instant case, appellant filed an occupational disease claim
(Form CA-2) alleging that work exposure to fumes and carcinogenic chemicals from 1981 to 1995
caused squamous cell carcinoma of the head and neck. On January 9, 2003 OWCP accepted
squamous cell carcinoma of the neck and scalp. Dr. Rucker requested authorization for a carotid
stent. Following referral to a medical adviser, by decision dated December 13, 2016, OWCP
denied Dr. Rucker’s request for authorization. On February 10, 2017 appellant requested
reconsideration. By decision dated December 13, 2016, OWCP assigned the weight of the medical

1

41 ECAB 548 (1990).

evidence to the opinion of its medical adviser and denied medical authorization for the requested
procedure.
On February 10, 2017 appellant requested reconsideration. He noted in an attached
February 6, 2017 statement that a similar procedure had been approved for his left carotid artery.
Also attached was a January 5, 2017 procedure note in which Dr. Rucker reported that he had
performed stent placement and balloon angioplasty to the proximal right internal carotid artery.
Dr. Rucker related that indications for the procedure were that appellant had severe radiationinduced stenosis of the proximal right internal carotid artery that was symptomatic, characterized
by presyncopal episodes and visual changes.
In a nonmerit decision dated May 9, 2017, OWCP denied appellant’s February 10, 2017
request for reconsideration. It noted that the only evidence reviewed on reconsideration was
appellant’s February 6, 2017 narrative statement and that “[n]o other evidence was submitted in
support of [the] claim.”
The Board finds that, as OWCP failed to review the January 5, 2017 report of Dr. Rucker,
the case will be remanded to OWCP to enable a proper consideration of the evidence of record at
the time of its May 9, 2017 nonmerit decision. Following such further development as OWCP
deems necessary, it shall issue an appropriate decision on appellant’s request for reconsideration
of the merits of his claim.
IT IS HEREBY ORDERED THAT the May 9, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this order of the Board.
Issued: November 1, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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
2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 17-0331
Issued: June 15, 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 November 30, 2016 appellant, through counsel, filed a timely appeal from an August 4,
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.

ISSUE
The issue is whether appellant met her burden of proof to establish that she was totally
disabled for the period January 27 to April 17, 2015 causally related to her accepted employment
injury.
FACTUAL HISTORY
On December 20, 2014 appellant, a 28-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a left ankle sprain on December 13, 2014 as
a result of walking through grass in the performance of duty. OWCP accepted the claim for left
ankle sprain. On February 4, 2015 appellant underwent a posterior tibial tendon debridement and
arthrodesis of the left lower extremity. She later underwent an incision, drainage, and hardware
removal of the left foot on April 22, 2015.3 Appellant has not returned to work.
Appellant, through counsel, filed a claim for disability (Form CA-7) for the period
January 27 to March 6, 2015. She submitted hospital records relating to her February 4, 2015
surgery in support of her claim.
In a January 13, 2015 report, Dr. Ali Anaim, a podiatric surgeon, noted that appellant
sustained an injury while working approximately one month prior and diagnosed calcaneofibular
(ligament) ankle sprain, osteoarthrosis, tenosynovitis, and pain in the left ankle and foot.
On February 9, 2015 Dr. Anaim noted that appellant was being treated for left foot and
ankle pain due to a slip and fall. He reported that he had performed a subtalar joint arthrodesis on
February 4, 2015. Dr. Anaim explained that, due to appellant’s previous arthrodesis and being a
high risk surgery site with a high probability of nonunion, she was advised to start on a bone
growth stimulator as soon as possible to promote healing at the fusion site. He prescribed a bone
growth stimulator and recommended its authorization by OWCP in order to achieve bony union
and avoid additional costly surgical intervention.
In a February 25, 2015 report, Dr. Anaim saw appellant for a follow-up examination and
found that x-rays revealed good fusion at the surgical site. He opined that she was totally disabled
for work and advised that she continue with casting and avoid weight-bearing for three weeks.
In a March 17, 2015 development letter, OWCP advised appellant that her claim for
compensation for disability for the period January 27 to March 6, 2015 could not be processed
because the medical evidence of record indicated that she was being treated for and claiming
disability due to conditions that were not accepted under the current claim. It afforded her 30 days
to submit additional medical evidence establishing how her diagnoses, surgeries, and disability
were causally related to the December 13, 2014 employment injury.
In response, appellant submitted x-rays of the left foot and ankle dated February 25, 2015
demonstrating stable changes of subtalar joint arthrodesis and no new abnormalities. A March 19,
2015 x-ray of the left foot revealed postsurgical changes in the hind foot and no acute bony
3

OWCP did not authorize either of these procedures.

2

abnormality. An April 7, 2015 x-ray of the left ankle revealed status post subtalar joint arthrodesis
and no significant interval change.
Appellant, through counsel, filed additional claims for disability for the period March 7 to
April 17, 2015. She further submitted physical therapy reports dated April 13 to 16, 2015 in
support of her claim.
In an April 30, 2015 letter, OWCP requested additional medical evidence establishing
appellant’s disability for work during the period claimed and afforded her 30 days to respond to
its inquiries. It noted that Dr. Anaim’s February 9, 2015 report indicated that the injury was due
to a “slip and fall” which was discrepant with the accepted employment injury of walking through
grass. OWCP requested a well-rationalized narrative report from a physician containing a
complete and accurate factual and medical history supported by objective findings that explained
how appellant’s diagnoses, surgeries, and disability were causally related to the December 13,
2014 employment injury.
By decision dated April 30, 2015, OWCP denied appellant’s claim for disability for the
period January 27 through March 6, 2015 finding that the medical evidence of record was
insufficient to support disability due to the employment injury.
On May 18, 2015 counsel requested an oral hearing by a representative of OWCP’s Branch
of Hearings and Review. Appellant submitted two February 4, 2015 x-rays of the left foot and
ankle demonstrating two newly placed screws in the subtalar joint and a physical therapy report
dated June 16, 2015 in support of her claim. She also resubmitted hospital records dated
February 4, 2015 relating to her previous surgery, including a report from Dr. Jocelyn Edathil, an
internist, who indicated that appellant had a past medical history of asthma and a recent fall while
at work.
In a May 11, 2015 report, Dr. Anaim noted that appellant sustained a sprain of the left foot
and ankle on grass on December 13, 2014 while delivering mail. He opined that her work injury
caused her synovitis, extreme synovitis, and tenosynovitis of her tibialis posterior. Dr. Anaim
noted that appellant underwent a surgical procedure when she was 14-years old for flatfoot:
arthrodesis plus removal of accessory navicular.
By decision dated June 29, 2015, OWCP denied appellant’s claim for disability for the
period March 7 to April 17, 2015 finding that the medical evidence of record was insufficient to
support disability due to the employment injury.
On July 6, 2015 counsel requested an oral hearing by a representative of OWCP’s Branch
of Hearings and Review. Appellant submitted progress reports dated February 18 through
April 20, 2015 from Dr. Anaim who reiterated his diagnoses and medical opinions. In a March 19,
2015 report, Dr. Anaim indicated that she was seen in 2012 for left ankle pain, unrelated to any
work injury, and was given an injection. He noted that appellant subsequently sustained an injury
while delivering mail at work that caused synovitis and unstable subtalar joint that lead to her
fusion surgery. On March 30, 2015 Dr. Anaim noted that she never had a preexisting condition
with her left foot and ankle, reiterating that she had a surgical procedure when she was a child for
arthroereisis, but noting that she did very well postoperatively in both feet. He also reiterated that

3

appellant was seen in 2012 for a minor injection of her left ankle, which was not employment
related.
Appellant’s disability claims were combined and a hearing was held before an OWCP
hearing representative on September 11, 2015 via video conference. She provided testimony and
the hearing representative held the case record open for 30 days for the submission of additional
evidence.
Subsequently, appellant submitted an October 16, 2015 report from Dr. Anaim who
reiterated his diagnoses and recommended a return to physical therapy. She also submitted an
April 20, 2015 x-ray of the left ankle demonstrating disuse osteoporosis in the foot and an
August 19, 2015 x-ray of the left foot revealing subtalar joint arthrodesis with bony ankylosis, soft
tissue swelling, and diffuse osteopenia.
By decision dated December 9, 2015, OWCP’s hearing representative affirmed the prior
decisions, finding the medical evidence of record insufficient to establish that appellant was
disabled for the period January 27 to April 17, 2015 due to the accepted condition of left ankle
sprain. The hearing representative further found that the medical evidence of record was
insufficient to establish a causal relationship between appellant’s surgical procedures and
additional diagnoses and the December 13, 2014 employment injury.
Subsequently, appellant submitted progress reports dated November 20 and December 11,
2015 from Dr. Anaim who noted that she was continuing with physical therapy and requested
custom-molded orthotics and a cane for support. She also submitted a December 11, 2015 x-ray
of the left foot demonstrating no acute fracture or dislocation, no evidence to suggestion
complication from subtalar arthrodesis, and no significant ankle joint degenerative changes.
OWCP referred appellant to Dr. Willie Thompson, a Board-certified orthopedic surgeon,
for a second opinion evaluation to determine the nature and extent of her employment-related
condition. In his January 15, 2016 report, Dr. Thompson reviewed her medical history and a
statement of accepted facts (SOAF). He found that physical examination of the left foot and ankle
revealed mild diffuse swelling, as well as well-healed scars both medially and laterally at the left
ankle. Appellant had 20 degrees of plantar flexion and 15 degrees of dorsiflexion. There was only
minimal motion at the hind foot and some mild tenderness present. Appellant had complete
numbness over the lateral three toes to the left foot and a noticeable limp with ambulation.
Dr. Thompson reported that she was seven months post-op and continued with significant
complaints related to the foot and ankle. He opined that appellant’s present complaints related to
the December 13, 2014 employment injury and that she required additional treatment of her
conditions. Dr. Thompson further opined that she had not yet reached maximum medical
improvement and that her limitations due to the work injury were not due to a prior or preexisting
condition. He advised that appellant was capable of returning to work in a sedentary capacity with
the following restrictions: walking, standing, lifting, and squatting up to two hours per day.
In a January 18, 2016 report, Dr. Anaim found that appellant was improving and released
her to full-duty work in one month. On February 11, 2016 he recommended a Provant Therapy
System twice a day for 30 minutes daily on her left ankle.

4

In a February 17, 2016 letter, OWCP requested clarification from Dr. Thompson regarding
his second opinion as to the nature and extent of appellant’s work-related conditions based on the
SOAF. It stated that it was unclear whether he utilized the SOAF as a framework to provide his
medical opinion on whether her surgeries were appropriate and necessary due to the accepted work
injury. OWCP asked Dr. Thompson to specifically address how appellant’s preexisting conditions
and current disability from work, resulting from surgeries which had not been authorized by
OWCP, were caused or aggravated by the December 13, 2014 employment injury.
In a March 10, 2016 addendum report, Dr. Thompson advised that he had no opinion as to
whether or not the surgical procedures performed on appellant’s foot and ankle related to the
December 13, 2014 employment injury because there was inadequate information in the medical
evidence of record. He noted that the surgeries were performed by a podiatrist and the history she
provided was that these procedures were related to the December 13, 2014 work injury, but at no
time did he or the podiatrist specifically indicate as to whether these surgeries were related to her
employment. Dr. Thompson further opined that it was reasonable to accept that appellant’s
preexisting conditions of osteoarthritis and synovitis of the subtalar joint were aggravated by the
December 13, 2014 work injury, but would have been temporary and resolved within a period of
three to four weeks.
On May 6, 2016 counsel requested reconsideration and submitted a May 3, 2016 report
from Dr. Anaim who noted that appellant had been treated for her left foot and ankle condition
since she was 11-years old and underwent excision of accessory bone at the insertion of the tibialis
posterior when she was 12-years old, as well as suspension of her arch. He noted that she had a
successful procedure on both right and left sides. Dr. Anaim indicated that appellant had multiple
positions at work where she did her duties uneventfully without any problems until December 13,
2014 when she suffered an injury with disruption of some ligaments and a partial tear of her tibialis
posterior while walking on an uneven surface of grass to deliver mail. He opined that she could
not heal her injury due to the disruption of her ligaments surrounding the joint and the aggravation
of a previous history of a surgical procedure on her left foot. Dr. Anaim concluded that appellant
had a completely healed surgical procedure when she was 12-years old, followed by multiple
pregnancies as well as multiple jobs which she had performed uneventfully until December 13,
2014 when she was forced to walk on an uneven surface, which caused some disruption of her
ligaments surrounding the joint which in turn caused instability of her subtalar joint and a partial
tear of her tibialis posterior requiring surgical correction and fusion of her subtalar joint. Appellant
further submitted progress reports dated March 7 through June 28, 2016 from Dr. Anaim who
reiterated his diagnoses and medical opinions.
By decision dated August 4, 2016, OWCP denied modification of its prior decision relying
upon Dr. Thompson’s second opinion reports dated January 15 and March 10, 2016.
LEGAL PRECEDENT
Section 8102(a) of FECA4 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
4

5 U.S.C. § 8102(a).

5

specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”5 This meaning, for brevity, is expressed as disability for work.6
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.7 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable probative and substantial medical
evidence.8
Disability is not synonymous with physical impairment, which may or may not result in an
incapacity to earn wages. An employee who has a physical impairment causally related to his or
her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA, and is not entitled
to compensation for loss of wage-earning capacity. The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.9
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP referred appellant together with a SOAF and the medical evidence of record to
Dr. Thompson for second opinion examination to determine the nature and extent of her accepted
conditions. In his January 15, 2016 report, Dr. Thompson noted that she continued with significant
complaints related to her left foot and ankle. He opined that appellant’s conditions were causally
related to the December 13, 2014 employment injury and required additional treatment.
Dr. Thompson further opined that she had not yet reached maximum medical improvement and
her limitations due to the work injury were not due to a prior or preexisting condition. He advised
that appellant was capable of returning to work in a sedentary capacity with restrictions.
By letter dated February 17, 2016, OWCP requested clarification from Dr. Thompson
regarding his second opinion, finding that it was unclear whether he utilized the SOAF as a
framework to provide his medical opinion on whether appellant’s surgeries were appropriate and
necessary due to the accepted work injury. It asked him to specifically address how her preexisting

5

20 C.F.R. § 10.5(f); see also William H. Kong, 53 ECAB 394 (2002).

6

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

7

See William A. Archer, 55 ECAB 674 (2004).

8

See Fereidoon Kharabi, 52 ECAB 291-92 (2001).

9

Id.

6

conditions and current disability from work, resulting from surgeries which had not been
authorized by OWCP, were caused or aggravated by the December 13, 2014 employment injury.
Based on a review of Dr. Thompson’s March 10, 2016 addendum report, the Board finds
that he provided seemingly contradictory answers and failed to fully explain the nature and extent
of appellant’s accepted conditions and related disability and was thus equivocal in nature.
Dr. Thompson noted that he had no opinion as to whether or not the surgical procedures performed
on her left foot and ankle were related to the December 13, 2014 employment injury. He further
opined that it was reasonable to accept that appellant’s preexisting conditions of osteoarthritis and
synovitis of the subtalar joint were aggravated by the December 13, 2014 work injury, but would
have been temporary and resolved within a period of three to four weeks. The Board finds that
Dr. Thompson failed to address OWCP’s question regarding appellant’s surgery-related disability.
The Board further finds that Dr. Thompson’s opinion regarding her preexisting conditions is
speculative and equivocal in nature.10 A physician’s opinion on causal relationship must be based
on a complete factual and medical background and must be supported by medical rationale.11
Under the circumstances, additional clarification of these medical issues are necessary.12 Once
OWCP undertakes development of the record, it must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case.13
It is well established that, proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.14 When OWCP selects
a physician for an opinion on causal relationship, it has an obligation to secure, if necessary,
clarification of the physician’s report and to have a proper evaluation made.15 Because it referred
appellant to Dr. Thompson, OWCP had the responsibility to obtain a report to resolve the issue of
whether appellant was disabled for the period January 27 to April 17, 2015 causally related to the
employment injury. As Dr. Thompson failed to provide a consistent sufficient response after being
asked for clarification, OWCP should schedule a second opinion examination with a new
physician.16
On remand OWCP shall refer appellant to a new second opinion physician to address
whether her claimed disability for the period January 27 to April 17, 2015 is causally related to
10
Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A. Kelley,
55 ECAB 206 (2004).
11

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.3f(2) (July 2011).
13

Richard F. Williams, 55 ECAB 343, 346 (2004).

14

See Phillip L. Barnes, 55 ECAB 426 (2004).

15

See W.C., Docket No. 14-0633 (issued June 19, 2014); S.E., Docket 08-2243 (issued July 20, 2009).

16
See E.B., Docket No. 17-0795 (issued January 18, 2018); supra note12 at Part 2 -- Claims, Developing and
Evaluating Medical Evidence, Chapter 2.810.9(j) (issued September 2010 and June 2015).

7

her December 13, 2014 employment injury and whether the acceptance of her claim should be
expanded to include any additional conditions.17 After it has developed the medical record
consistent with the above-noted directive, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 4, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: June 15, 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

17
When a medical evaluation is made at its request, OWCP has the responsibility of obtaining a proper evaluation.
See Leonard Gray, 25 ECAB 147, 151 (1974).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
CENTRAL INTELLIGENCE AGENCY,
Herndon, VA, Employer
__________________________________________

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

Docket No. 12-1940
Issued: March 5, 2013

Case Submitted on the Record

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

JURISDICTION
On September 21, 2012 appellant filed a timely appeal from the July 11, 2012 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. The Board also has jurisdiction to review OWCP’s
August 13, 2012 nonmerit decision denying her request for reconsideration.
ISSUES
The issues are: (1) whether appellant’s hydrocephalus is causally related to her federal
employment; and (2) whether OWCP properly denied her July 20, 2012 reconsideration request.
FACTUAL HISTORY
On February 2, 2011 appellant, a 39-year-old project manager, filed an occupational
disease claim alleging that her hydrocephalus, together with her gait derangement and urinary
1

5 U.S.C. § 8101 et seq.

incontinence, was causally related to an incident in 1990 when she took a street survival course
and hit the back of her head on a concrete floor during the period January 25 to 26, 1990. She
indicated that she first became aware that her condition was employment related on
January 11, 2010.
Dr. Michael A. Williams, a Board-certified neurologist, saw appellant on November 1,
2010 for a neurological consultation. He related that her condition first came to her attention
about three years earlier, when she had difficulty with her job. Appellant had trouble with her
thinking and memory. Eventually, an imaging study revealed hydrocephalus.
Dr. Williams noted the following: “Review of risk factors for adult hydrocephalus shows
that, in 1990 or 1991 at a self-defense course, [appellant] fell backwards and rather than landing
on the mat, she landed on the concrete floor and hit the back of her head. There was no loss of
consciousness or bleeding, but she saw stars.” On May 13, 2012 Dr. Williams noted that
appellant endorsed no other risk factor for adult hydrocephalus. Further his examination found a
normal head circumference, which suggested that the hydrocephalus was acquired, as opposed to
congenital. Dr. Williams explained that traumatic brain injury, including concussion, was a
known risk factor for hydrocephalus and the fact that appellant saw stars indicated that the fall
had enough force for the occipital lobe of the brain to strike the inside of the skull when her head
hit the floor. “To the best of our knowledge, however, she did not have a head CT [computed
tomography scan] at the time of her injury in 1990 and thus we cannot know whether the
hydrocephalus was a preexisting condition. Further, it is possible [appellant] developed
idiopathic hydrocephalus.” Dr. Williams concluded that it was highly plausible that the fall she
sustained was related to her hydrocephalus, but it was not possible in retrospect to rule out other
causes.
On July 11, 2012 OWCP denied appellant’s injury claim. It accepted that the claim was
timely and that the incident in 1990 occurred as alleged. OWCP found, however, that the
medical evidence was not sufficient to establish that the incident caused appellant’s current
hydrocephalus. Although Dr. Williams diagnosed her with hydrocephalus, OWCP found that he
did not unequivocally link that diagnosis to her fall during self-defense training in 1990.
On July 20, 2012 appellant requested reconsideration. She stated that she would send in
further evidence from her physicians once she had it.
In an August 13, 2012 decision, OWCP denied appellant’s reconsideration request. It
found that her request neither raised substantive legal questions nor included new and relevant
evidence and was therefore insufficient to warrant a reopening of her case.
On appeal, appellant believes and agrees with Dr. Williams’ May 13, 2012 report.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident or exposure occurring at the time, place and in the

2

manner alleged. He or she must also establish that such event, incident or exposure caused an
injury. These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.2
Causal relationship is a medical issue3 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,4 must be
one of reasonable medical certainty5 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.6
ANALYSIS -- ISSUE 1
OWCP accepts that appellant hit the back of her head in 1990, as alleged. Appellant has
therefore met her burden to establish that she experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged. The question that remains is whether this
incident caused her current hydrocephalus.
In his May 13, 2012 report, Dr. Williams, the consulting neurologist, offered some
support for appellant’s injury claim. He noted that she had identified a risk factor for the
condition of hydrocephalus. Appellant endorsed no other risk factors. Her normal head
circumference suggested that the condition was acquired, not congenital. Further, appellant’s
description of the incident was consistent with a traumatic brain injury, which was a known risk
factor for hydrocephalus.
Although Dr. Williams concluded that it was highly plausible that appellant’s
hydrocephalus was related to her fall in 1990, he qualified that conclusion substantially. He
explained that it was impossible to know whether this was a preexisting condition. It was
possible appellant developed an idiopathic hydrocephalus. Dr. Williams added that it was not
possible, in retrospect, to rule out other causes of the condition.
This raises a question of whether Dr. Williams’ opinion was one of reasonable medical
certainty or whether, having raised some doubt about the condition’s etiology, he simply could
not say, in retrospect, whether the incident in 1990 caused appellant’s current medical condition.
It is not necessary that the evidence be so conclusive as to suggest causal connection
beyond all possible doubt. The evidence required is only that necessary to convince the

2

See generally Victor J. Woodhams, 41 ECAB 345 (1989).

3

Mary J. Briggs, 37 ECAB 578 (1986).

4

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

See Morris Scanlon, 11 ECAB 384, 385 (1960).

6

See William E. Enright, 31 ECAB 426, 430 (1980).

3

adjudicator that the conclusion drawn is rational, sound and logical.7
evidence be equivocal.8

But neither can the

Dr. Williams did not explain why symptoms of hydrocephalus did not manifest for
17 years after appellant struck her head. He did not explain whether this was consistent with the
nature of hydrocephalus and the element of causal relationship. Medical conclusions
unsupported by rationale are of little probative value.9
The Board finds that while some support can be found for appellant’s claim in
Dr. Williams’ May 13, 2012 report, the report raises enough doubt about the cause of her
condition and the late development of her symptoms that she has not discharged her burden to
establish that her current hydrocephalus was the result of what happened in 1990. Accordingly,
the Board will affirm the OWCP’s July 11, 2012 decision to deny her injury claim.
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.
LEGAL PRECEDENT -- ISSUE 2
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.10 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.11
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.12 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or argument that meets at
least one of these standards. If reconsideration is granted, the case is reopened and the case is
reviewed on its merits. Where the request is timely but fails to meet at least one of these

7

Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.

8

Vaheh Mokhtarians, 51 ECAB 190 (1999) (medical opinions that are speculative or equivocal in character have
little probative value).
9

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606.

12

Id. at § 10.607(a).

4

standards, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.13
ANALYSIS -- ISSUE 2
Appellant had one calendar year after OWCP’s July 11, 2012 decision or until July 11,
2013, to request reconsideration. Her July 20, 2012 request, received by OWCP on July 25,
2012, was therefore timely. The question for determination is whether that request met at least
one of the three criteria for obtaining a merit review of her case.
In her reconsideration request, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. She did not advance a relevant legal argument not previously
considered by OWCP. Appellant did not submit evidence that constituted relevant and pertinent
new evidence not previously considered by OWCP. Indeed, she offered no argument or
evidence to support her request. Appellant indicated only that she would send in further
evidence from her physicians once she had it. Her request therefore was insufficient on its face
to require OWCP to reopen her case for a merit review.
As appellant’s reconsideration request did not meet any of the requirements for obtaining
a merit review of her case, the Board finds that OWCP properly denied her request. The Board
will therefore affirm OWCP’s August 13, 2012 decision.
CONCLUSION
The Board finds that appellant has not met her burden to establish hydrocephalus is
causally related to her federal employment. The Board also finds that OWCP properly denied
her July 20, 2012 reconsideration request.

13

Id. at § 10.608.

5

ORDER
IT IS HEREBY ORDERED THAT the August 13 and July 11, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 5, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, MORGAN GENERAL
MAIL FACILITY, New York, NY, Employer
__________________________________________

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

Docket No. 11-477
Issued: September 23, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 15, 2010 appellant filed a timely appeal from a November 22, 2010
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration. As the last merit decision was issued June 1, 2010, more than 180
days before the filing of this appeal, the Board lacks jurisdiction to review the merits of this
case.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128.

1

20 C.F.R. §§ 501.2(c), 501.3.

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 1, 1995, the
Board affirmed a March 1, 1993 decision finding that appellant had not established a recurrence
of disability beginning December 26, 1991 due to her October 15, 1981 employment injury.3
The facts and the circumstances as set forth in the prior decision are hereby incorporated by
reference.
Appellant continued to receive compensation for four hours per day based on a
November 21, 1991 wage-earning capacity determination. By decision dated May 21, 2009,
OWCP modified its wage-earning capacity decision to zero effective June 7, 2009 based on its
termination of her compensation and authorization for medical treatment. It found that appellant
had no further disability or residuals of her accepted low back syndrome and lumbosacral sprain.
OWCP based its termination of her compensation on the March 26, 2009 opinion of Dr. Barry
Koffler, a Board-certified orthopedic surgeon, who provided a second opinion examination.
Dr. Koffler reviewed the evidence, listed findings on examination and determined that
appellant’s lumbar strain had resolved and that she had no residuals of her 1991 work injury.
On June 22, 2009 appellant requested reconsideration. In a June 20, 2009 letter, she
argued that OWCP terminated her compensation based on a physician who did not conduct an
examination. Appellant submitted a June 3, 2009 report from Dr. John B. Bieltz, an attending
osteopath, who opined that appellant’s condition had worsened and that the “original injury has
contributed to this.”
By decision dated October 30, 2009, OWCP denied modification of its May 21, 2009
termination decision. It found that Dr. Bieltz did not provide appellant’s history of injury or any
medical rationale and that consequently his opinion was of diminished probative value.
On March 24, 2010 appellant again requested reconsideration. She asserted that each
time she attempted to work light duty she reinjured herself and that the job provided by the
employing establishment was not true limited duty. Appellant submitted a February 17, 2010
report from Dr. Bieltz.4 By decision dated June 1, 2010, OWCP denied modification of its
October 30, 2009 decision.
By letter dated September 24, 2010, appellant related that in November 1991 she returned
to work for four hours per day. She retired on partial disability in 1991 due to the injury to her
back. Appellant indicated that she underwent knee surgery in 2000 rather than in 1991 as
specified by OWCP. She related that the knee surgery was not work related but that she “did not
stop working because of my knee but because of the lower back injury….” Appellant asserted

3

Docket No. 93-2094 (issued May 1, 1995). OWCP accepted that on October 15, 1981 appellant, then a 42-yearold clerk, sustained low back syndrome and lumbosacral strain in the performance of duty. Appellant returned to
part-time modified employment on November 16, 1991. By decision dated November 21, 1991, OWCP reduced her
compensation benefits based on its finding that her actual earnings as a modified manual distribution clerk working
four hours per day fairly and reasonably represented her wage-earning capacity.
4

Dr. Bieltz diagnosed degenerative disc disease. He noted that she “had an injury back in 1981 and it has gotten
progressively worse with time.”

2

that she had not received a November 21, 1991 wage-earning capacity determination. She
contended that Dr. Koffler did not examiner her.
On October 12, 2010 appellant requested reconsideration. In a nonmerit decision dated
November 22, 2010, OWCP denied her request for reconsideration after finding that she did not
submit evidence or raise argument sufficient to warrant reopening her case for further review of
the merits under section 8128.
On appeal appellant asserts that she retired on partial disability. She reinjured herself
working at the employing establishment as she was not provided with actual limited duty.
Appellant questions why OWCP credited Dr. Koffler over Dr. Bieltz even though Dr. Koffler did
not conduct a physical examination. She further alleges bias by Dr. Koffler due to her race.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.6 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.7 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.8
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.9 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.10
ANALYSIS
OWCP accepted that appellant sustained low back syndrome and lumbar strain in the
performance of duty. In a decision dated November 21, 1991, it reduced her compensation after
finding that her part-time earnings as a modified manual distribution clerk fairly and reasonably
represented her wage-earning capacity. By decision dated May 21, 2009, OWCP terminated
5

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at any time on her own motion or on application.”
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

10

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).

3

appellant’s compensation after finding that she had no further disability or need for medical
treatment due to her accepted employment injury. On October 30, 2009 and June 1, 2001 it
denied modification its May 21, 2009 termination decision. Appellant requested reconsideration
on October 12, 2010.
As noted above, the Board does not have jurisdiction over the merits of this case. The
issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In her
October 12, 2010 request for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law. She did not identify a specific point of law or show
that it was erroneously applied or interpreted. Appellant did not advance a new and relevant
legal argument. In a September 24, 2010 letter and on appeal, she argued that she had retired on
partial disability in 1991 rather than receiving a wage-earning capacity determination. OWCP,
however, issued a wage-earning capacity in 1991 finding that appellant could earn wages as a
part-time modified manual distribution clerk. A wage-earning capacity determination is a
determination that a specific amount of earnings represents a claimant’s ability to earn wages.11
FECA does not provide a disability retirement program.12
Appellant also contended that she did not receive OWCP’s 1991 wage-earning capacity
decision. This contention is not relevant to the issue on appeal, however, which is whether she
had any employment-related disability after June 7, 2009. Evidence or argument that does not
address the particular issue involved does not warrant reopening a case for merit review.13
Further, OWCP’s 1991 decision was properly addressed to appellant. Under the mailbox rule it
is presumed, absent evidence to the contrary, that a notice mailed to an individual in the ordinary
course of business was received by the individual.14
Appellant maintained that OWCP indicated that she had knee surgery in 1991 rather than
2000 and that she stopped work because of her low back injury. The underlying issue, however,
is whether she has any further disability due to her accepted low back syndrome and lumbosacral
strain after June 7, 2009. That is a medical issue which must be addressed by relevant medical
evidence.15 A claimant may be entitled to a merit review by submitting pertinent new and
relevant evidence, but appellant did not submit any pertinent new and relevant medical evidence
with her reconsideration request showing continuing employment-related disability.
Appellant also argued that Dr. Koffler did not conduct a physical examination. However,
Dr. Koffler described detailed findings on physical examination in his March 26, 2009 report.
Consequently, appellant’s contention does not constitute a new legal argument sufficient to
warrant reopening her case for further merit review.
11

See S.M., 58 ECAB 166 (2006); Harley Sims, Jr., 56 ECAB 320 (2005).

12

See James L. Sutton, 32 ECAB 1886 (1981) (a determination of disability under Civil Service Retirement
provisions has no application under FECA).
13

J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002).

14

See Joseph R. Giallanza, 55 ECAB 186 (2003); A.C. Clyburn, 47 ECAB 153 (1995).

15

See Bobbie F. Cowart, 55 ECAB 746 (2004).

4

On appeal appellant questioned why OWCP relied upon Dr. Koffler over the opinion of
Dr. Bieltz, her attending physician. OWCP previously explained, however, that Dr. Bieltz did
not provide a history of her work injury or any rationale for his opinion and thus found it of little
probative value. Appellant also alleges that Dr. Koffler was biased against her due to her race.
She provided no evidence, however, in support of her argument. Mere allegations are
insufficient to establish bias.16
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits under section 8128.
ORDER
IT IS HEREBY ORDERED THAT the November 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

16

See L.W., 59 ECAB 471 (2008).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE ARMY, REDSTONE
ARSENAL, Huntsville, AL, Employer
__________________________________________

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

Docket No. 11-473
Issued: September 27, 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 December 14, 2010 appellant filed a timely appeal from the November 9, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied waiver of
recovery of an overpayment of compensation.
Pursuant to the Federal Employees’
1
Compensation Act (FECA) 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 OWCP properly denied waiver of a $14,343.21 overpayment from
October 11, 2002 to November 21, 2009 and properly determined the rate of recovery from
continuing compensation.
1
2

5 U.S.C. § 8101 et seq.

On January 5, 2011 the Clerk of the Board asked appellant to confirm by no later than January 20, 2011 whether
she still desire to attend, at her expense, an oral argument in Washington, DC. The Clerk notified her that if he did
not receive her response by that date, the Board would decide her appeal on the record without oral argument.
Appellant did not respond within the allotted time.

FACTUAL HISTORY
On December 5, 1984 appellant, then a 35-year-old file clerk, sustained an injury in the
performance of duty when she tried to move a broken file shelf. OWCP accepted her claim for
lumbosacral strain and a ruptured L4-5 disc, left. Appellant suffered several recurrences of
disability and received compensation for temporary total disability at the augmented rate for
dependents.
On May 3, 2010 OWCP made a preliminary determination that appellant received a
$14,343.21 overpayment from October 11, 2002 to November 21, 2009. It explained that her
husband died on October 11, 2002, but she continued to receive compensation at the augmented
rate for dependents. OWCP found that appellant was at fault in creating the overpayment.
In a decision dated November 9, 2010, OWCP’s hearing representative found that
appellant did receive a $14,343.21 overpayment from October 11, 2002 to November 21, 2009
because she continued to receive compensation at the augmented rate for dependents after her
husband’s death. He found, however, that appellant was not at fault in the matter. OWCP’s
hearing representative denied waiver on the grounds that appellant’s monthly expenses exceeded
her monthly income by $224.27, accepting the reasonable figures she provided in her testimony
during a September 1, 2010 telephonic hearing. He found that appellant could repay the debt
through deductions of $125.00 each four weeks from her periodic rolls payment. OWCP’s
hearing representative noted that this still left appellant with more than $50.00 a month in
discretionary income.
On appeal, appellant argues that she did nothing wrong. She explains that OWCP did not
follow up on the information she provided about her husband’s death. Appellant adds that it
pays her $1,258.00 a month, not $1,362.28.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 Compensation for total disability is paid at
the rate of 66⅔ percent of monthly pay.4 A disabled employee with one or more dependents is
entitled to have basic compensation for disability augmented to 75 percent.5
When an overpayment of compensation has been made 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.6 OWCP may consider waiving an overpayment
only if the individual to whom it was made was not at fault in accepting or creating the

3

5 U.S.C. § 8102(a).

4

Id. § 8105.

5

Id. § 8110(b).

6

Id. § 8129(a).

2

overpayment.7 If OWCP finds that the recipient of an overpayment was not at fault, repayment
will still be required unless: (1) adjustment or recovery of the overpayment would defeat the
purpose of FECA; or (2) adjustment or recovery of the overpayment would be against equity and
good conscience.8
Recovery of an overpayment will defeat the purpose of FECA if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from
whom OWCP seeks recovery needs substantially all of her current income (including
compensation benefits) to meet current ordinary and necessary living expenses; and (b) the
beneficiary’s assets do not exceed the resource base of $4,800.00 for an individual.9
An individual is deemed to need substantially all of her current income to meet current
ordinary and necessary living expenses if monthly income does not exceed monthly expenses by
more than $50.00. In other words, the amount of monthly funds available for debt repayment is
the difference between current income and adjusted living expenses (i.e., ordinary and necessary
living expenses plus $50.00).10
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes her position for the worse.11 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.12
Whenever 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 her attention is called to same. If no refund is made, OWCP shall
decreased 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.13

7

20 C.F.R. § 10.433(a).

8

Id. § 10.434.

9

Id. §10.436; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6.a(1)(b) (October 2004).
10

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (October 2004).
11

20 C.F.R. § 10.437(b).

12

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.b(3) (October 2004).
13

20 C.F.R. § 10.441(a).

3

ANALYSIS
Appellant does not dispute the fact or amount of the overpayment. Though she was not
entitled to compensation at the augmented rate for dependents after her husband died, OWCP
continued to pay compensation at the augmented rate from October 11, 2002 to
November 21, 2009. Payment records and worksheets document that this error caused an
overpayment of $14,343.21 during the period. The Board will therefore affirm OWCP’s
November 9, 2010 decision on the issues of fact and amount of overpayment.
The primary issue, at least the one appellant seems most concerned about on appeal, is
whether she was at fault in the matter. OWCP found so in its preliminary determination, but
upon further consideration OWCP’s hearing representative concluded that appellant was not at
fault in the matter. To use her words on appeal, she “did nothing wrong.” It was OWCP that
made the mistake. That does not mean, however, that appellant may keep money that does not
belong to her. The law still requires repayment unless: (1) adjustment or recovery of the
overpayment would defeat the purpose of FECA; or (2) adjustment or recovery of the
overpayment would be against equity and good conscience.
Appellant completed an overpayment recovery questionnaire listing her monthly income
and expenses, and she testified as to her income and expenses during the telephonic hearing.
OWCP’s hearing representative accepted her testimony as reasonable, but because she failed to
document her expenses, he accepted the lower end of any range she provided. As the difference
between her monthly income and monthly expenses was (roughly) $224.27, appellant is deemed
not to need substantially all of her current income to meet current ordinary and necessary living
expenses. Recovery of the overpayment will therefore not defeat the purpose of FECA. Because
there is no evidence that appellant gave up a valuable right or changed her position for the worse
in reliance on the overpaid amount, recovery of the overpayment is not against equity and good
conscious. As appellant is thus not eligible for waiver, the Board will affirm OWCP’s
November 9, 2010 decision on that issue.
In the absence of waiver, FECA requires OWCP to recover the debt by decreasing later
payments, to which appellant is entitled. OWCP’s hearing representative was aware of the
extent of her future payments, her rate of compensation and her financial circumstances. He
explained that if appellant repaid the debt at a rate of $125.00 a month, she would still have over
$50.00 a month in discretionary income.14 The Board therefore finds that OWCP has properly
taken into account relevant factors so as to minimize any hardship while still recovering the debt
in a reasonably timely manner. The Board will affirm its November 9, 2010 decision on the
issue of rate of recovery.
Appellant argues on appeal that she “did nothing wrong.” OWCP agrees. It was OWCP
that created the overpayment by not following through on the paperwork she submitted. As the
Board has explained, this does not entitle appellant to money mistakenly paid to her. The law
requires OWCP to recovery the debt. As for the compensation she receives, the record shows
that when OWCP issued its November 9, 2010 decision, it was paying appellant $1,258.00 in
14

This would leave something of a buffer for expenses that tend to fluctuate or arise unexpectedly.

4

compensation every 28 days. For example, with a check dated November 20, 2010, OWCP paid
appellant $1,258.00 for the period October 24 to November 20, 2010, which was 28 days. This
is the equivalent of $1,362.83 a month ($1,258.00 x 13/12).
CONCLUSION
The Board finds that OWCP properly denied waiver of the recovery of a $14,343.21
overpayment from October 11, 2002 to November 21, 2009 and properly determined the rate of
recovery from continuing compensation.
ORDER
IT IS HEREBY ORDERED THAT the November 9, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 27, 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

5