United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING
DISTRIBUTION CENTER, New York, NY,
Employer
__________________________________________

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

Docket No. 15-793
Issued: June 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 26, 2015 appellant filed a timely appeal from a January 13, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish a left thumb injury
causally related to factors of her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 5, 2014 appellant, then a 26-year-old mail handler, filed a Form CA-1, traumatic
injury claim for compensation, alleging that, on the same date, she sustained a left thumb injury
when a postal container fell on her hand. She stopped work on July 5, 2014.
In a July 22, 2014 letter, OWCP noted that appellant’s claim had initially been handled as
a minor injury and that payment for a limited amount of medical expenses had been
administratively approved. It noted that it had reopened the claim for consideration because she
had not returned to full-time work. Appellant was advised to submit a physician’s opinion
supported by a medical explanation as to how the reported work incident caused the claimed
injury.
Appellant submitted a July 5, 2014 return-to-work note from the emergency department
of Beth Israel Medical Center2 which indicated that she could return to duty on July 8, 2014, but
could not perform any lifting or carrying.
In a July 18, 2014 report, Dr. Maria Cipollone, a Board-certified plastic surgeon, reported
that appellant was under her care and that a magnetic resonance imaging (MRI) scan was
pending. She advised that appellant should not use her left hand until MRI scan results were
available. Dr. Cipollone, in a July 25, 2014 attending physician’s report (Form CA-20), noted
that appellant sustained trauma to her left thumb on July 5, 2014, when a metal bar fell on her
hand at work. Based on a preliminary assessment of a July 25, 2014 MRI scan, she diagnosed a
high grade partial tear of the left thumb radial collateral ligament. Dr. Cipollone indicated that
appellant could return to work, performing light duty with no use of the left hand. In the report,
she checked a box “yes” to the question of whether the diagnosed condition was employment
related. Dr. Cipollone explained that appellant was “asymptomatic prior to injury,” and
indicated that appellant’s injury was consistent with the history of injury. In an August 8, 2014
duty status report (Form CA-17), she diagnosed a left thumb ligament injury and set forth
appellant’s work restrictions.
In an August 28, 2014 decision, OWCP denied appellant’s claim, finding the medical
evidence was insufficient to establish that the work incident caused appellant’s left thumb
condition.
Appellant requested reconsideration and submitted additional medical evidence. In a
July 5, 2014 report, Dr. Roy Holliday, a Board-certified diagnostic radiologist, stated that there
was no radiographic abnormality of the osseous or soft tissue structures and no evidence of
fracture or dislocation. In a July 25, 2014 report, Dr. Robert Irish, a Board-certified diagnostic
radiologist, noted left hand MRI scan findings and diagnosed a high grade partial tear of the
radial collateral ligament at the metacarpal attachment, based on an MRI scan of appellant’s left
hand.
Dr. Cipollone, in an August 26, 2014 report, summarized the July 5, 2014 employment
incident, stating that a postal container opened and a heavy bar fell onto appellant’s left thumb.
2

The signature on the note is illegible.

2

She diagnosed a high grade partial tear of the radial collateral ligament at the metacarpal
attachment of the left thumb and opined that the “mechanism of injury described can be
consistent with the finding on the patient’s physical exam[ination] and MRI [scan].”
Dr. Cipollone further provided treatment records and status notes from August 20, 26, and
September 3, 2014.
Appellant resubmitted her initial emergency room treatment records. In a July 5, 2014
emergency room report, Dr. May Li, Board-certified in emergency medicine, related that, about
three hours earlier, she reported a hyperextension of the left thumb that occurred while working.
She noted that it happened when metal equipment pushed appellant’s thumb back,
hyperextending it. Dr. Li noted examination findings and diagnosed a hyperextension injury.
She stated that appellant had full tendon strength and that x-rays were negative. Dr. Li advised
that appellant could return to work with restrictions.
In a January 13, 2015 decision, OWCP denied modification of its August 28, 2014,
finding that the medical evidence was insufficient to establish that appellant sustained an injury
causally related to the work incident.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or
she filed her claim within the applicable time limitation.4 The employee must also establish that
she sustained an injury in the performance of duty as alleged and that her disability for work, if
any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

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

6

T.H., 59 ECAB 388 (2008).

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rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
OWCP accepted that the employment incident occurred as alleged. The issue is whether
appellant established that the incident caused her left thumb condition. The Board finds that she
failed to submit sufficient medical evidence to support that her thumb condition was causally
related to the July 5, 2014 employment incident.
In the July 25, 2014 attending physician’s report, Dr. Cipollone reported that appellant
suffered left thumb trauma at work on July 5, 2014, when a metal bar fell on her hand. She
diagnosed a high grade partial tear of the radial collateral ligament in the left thumb.
Dr. Cipollone checked the box marked “yes” when asked if she believed that appellant’s
condition was caused by the employment incident. The Board has held that an opinion on causal
relationship which consists only of a physician checking a box yes regarding causal relationship
without further explanation or rationale is of little probative value.8 Dr. Cipollone failed to
adequately explain how the July 5, 2014 employment incident caused the diagnosis provided.
She further noted that appellant did not have a left thumb injury prior to the incident. However,
the fact that appellant was asymptomatic before July 5, 2014 and symptomatic afterward, by
itself, does not establish a causal relationship.9
In her August 26, 2014 report, Dr. Cipollone noted that appellant was injured at work,
when a postal container fell on her left hand. She opined that the mechanism of injury “can be
consistent with the findings on the patient’s physical exam[ination] and MRI [scan].”
Dr. Cipollone’s vague and speculative account of causation is insufficient to discharge
appellant’s burden of proof. While the opinion of a physician supporting causal relationship
need not be one of absolute medical certainty, the opinion must not be speculative or equivocal.10
By discussing the causal relationship in equivocal terms, Dr. Cipollone failed to medically
explain the pathophysiological process by which the July 5, 2014 incident would have caused the
diagnosed condition.11 Other reports from Dr. Cipollone are insufficient to establish the claim as
they do not specifically support that the July 5, 2014 work incident caused or aggravated the
diagnosed medical condition.12 Consequently, Dr. Cipollone’s reports are insufficient to
establish appellant’s claim.

7

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

8

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

9

See T.M., Docket No. 08-975 (issued February 6, 2009).

10

Ricky S. Storms, 52 ECAB 349 (2001).

11

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician).
12

J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).

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In a July 5, 2014 emergency room report, Dr. Li noted treating appellant for a left thumb
injury. She related that that appellant stated that the injury occurred at work, when metal
equipment pushed her thumb back. Dr. Li diagnosed hyperextension of the left thumb.
However, she merely repeated the history of injury as reported by appellant without providing
her own opinion regarding whether appellant’s condition was work related. To the extent that
Dr. Li’s statement reflects her own opinion on causal relationship, she failed to provide medical
rationale explaining the causal relationship between the July 5, 2014 incident and the diagnosed
hyperextension injury. Accordingly, the report is insufficient to meet appellant’s burden of
proof.
The Board further finds that the remainder of the medical evidence, including the
diagnostic reports of Dr. Irish and Dr. Holliday fails to provide an opinion on the causal
relationship between the July 5, 2014 work incident and appellant’s thumb condition. Such
evidence is of limited probative value.13
For these reasons, the medical evidence is insufficient to establish that the July 5, 2014
work incident caused appellant’s claimed condition.14
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. §§ 10.606 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish a traumatic injury caused by the
accepted July 5, 2014 work-related event.

13

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

14

The record also contains a July 5, 2014 return to work note with an illegible signature. A medical report may
not be considered as probative medical evidence if there is no indication that the person completing the report
qualifies as a physician as defined in 5 U.S.C. § 8101(2). Reports lacking proper identification do not constitute
probative medical evidence. C.B., id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 13, 2015 is affirmed.
Issued: June 17, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Estill, SC, Employer
__________________________________________

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

Docket No. 13-886
Issued: July 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 27, 2013 appellant filed a timely appeal from a January 23, 2013 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $3,432.50 for the period December 12, 2011 to September 22,
2012; (2) whether it properly denied waiver of recovery of the overpayment; and (3) whether it
properly determined that the overpayment should be recovered by deducting $250.00 from
continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.2 In a decision dated August 31, 2001, the
Board affirmed the September 22, 2000 decision finding an overpayment in the amount of
$1,402.21 and denying waiver of recovery.3 The facts contained in the prior decision are
incorporated by reference. The relevant facts are set forth.
OWCP accepted that on December 7, 1998 appellant sustained a lumbar strain and
subsequent L5-S1 disc herniation in the performance of duty. In Form CA-7 compensation
claims and CA-1032 forms filed since July 27, 1999, appellant identified her daughter as a
dependent and noted a date of birth of June 25, 1989. She stopped work and received wage-loss
compensation at an augmented rate of 75 percent of her weekly pay.
On September 19, 2007 OWCP advised appellant that it needed additional information to
determine whether her daughter had eligibility for compensation beyond her 18thbirthday. It
requested verification that her daughter was pursuing a full-time course of study at an accredited
school, college or university or evidence establishing that her daughter was incapable of selfsupport.
In a September 25, 2007 form, Mary Beth Carr, a guidance counselor at South Aiken
High School, verified that appellant’s daughter was enrolled as a full-time student from
August 20, 2007 to June 5, 2008.
In various student dependency forms, an official for the Registrar’s Office of the
University of South Carolina, verified that appellant’s daughter was enrolled as a full-time
student at the University of South Carolina at Beaufort from August 21, 2008 to
December 12, 2011. Her expected date of completion of the course of study was May 2013.
OWCP wrote to appellant on September 15, 2011 and advised that further information
was necessary to determine her daughter’s dependency status. To verify her daughter’s status as
a student, appellant was requested to submit certification of school enrollment. She was also
advised that if her daughter was incapable of self-support, due to a physical or mental
disability,appellant could establish dependence by submitting a medical report from an attending
physician.
On September 24, 2012 appellant informed OWCP by telephone that her daughter was
unable to complete her Fall2011 semester in collegebecause she had gallbladder surgery and
2

Docket No. 01-229 (issued August 31, 2001).

3

In a preliminary determination dated July 18, 2000, OWCP found that appellant received an overpayment of
$1,420.21 because she received duplicate payments for the period July 22 through August 23, 1999. It found that
she was not at fault in the creation of the overpayment and requested additional information to determine waiver of
recovery. By decision dated September 22, 2000, OWCP finalized the July 18, 2000 preliminary determination and
determined that appellant was not entitled to waiver of the recovery of the overpayment as she had failed to respond
to the overpayment notification or submit any financial information to support a request for waiver. It stated that it
would withhold the sum of $75.00 from appellant’s continuing compensation payments until overpayment was
recovered.

2

received incompletes for school. Her daughter was given seven months by the college to
complete her school work for the Fall2011 semester. Appellant requested information regarding
how to complete the dependency portion of the Form CA-1032. OWCP advised appellant that
her daughter was considered a dependent only through the time for which she was actually
enrolled with the college.
In a letter dated September 25, 2012, OWCP stated that according to the September 9,
2011 CA-1032 form, appellant’s daughter turned 23 on June 25, 2012. It advised appellant that,
based on this information, her compensation pay rate would be reduced from 75 percent to 66
2/3 percent effective June 25, 2012.4
In a September 25, 2012 statement, appellant reported that her daughter was no longer
enrolled in school and was currently under medical care. She enclosed medical records dated
from December 28, 2010 to July 21, 2012 noting that her daughter had illnesses and underwent
gallbladder surgery during and before the covered period of December 13, 2011 to
June 24, 2012. Appellant explained that on December 5, 2011 her daughter withdrew from a
college class after being discharged from the hospital for gallbladder surgery but she forgot to
report her status as less than full time. She initially asked her daughter if she had withdrawn
from class in November 2011 and her daughter stated that she did not. Appellant stated that
because of privacy laws she did not have access to her daughter’s records and was unaware of
her daughter’s withdrawal from college. She contended that her daughter’s change in school
enrollment status did not change her claim for “augmented compensation” because her daughter
was not married, 18 or older and could not support herself because of her physical disability.
Appellant continued to list her daughter as a dependent because she believed that her daughter
still qualified as a dependent according to OWCP regulations. During this period, her daughter
was under medical care and receiving medical treatment from physicians.
An October 4, 2012 unsigned form report was received from Sumter Neurology and Pain
Management, which indicated that appellant’s daughter was seen that day for a migraine.
On November 20, 2012 OWCP issued a preliminary decision that appellant received an
overpayment in the amount of $3,432.50 for the period December 13, 2011 to
September 22, 2012. Appellant received compensation at the augmented 75 percent rate for
dependents after her last remaining dependent became ineligible for benefits. OWCP found that
she was not at fault in creating the overpayment because she was not aware nor could reasonably
have been expected to be aware that OWCP paid compensation incorrectly. It provided a
memorandum containing a calculation of the overpayment totaling $3,432.50.5 Appellant was
informed of her options if she wished to challenge the fact and amount of the overpayment or to
request waiver of recovery of the overpayment. If she wished a waiver of the overpayment, she

4

An electronic printout indicated that appellant received compensation in the amount of $2,252.74 based on the
basic rate of 66 2/3 percent beginning September 23, 2012.
5

The overpayment worksheet indicated that appellant received a gross amount of $30,698.00 from December 13,
2011 to September 22, 2012 but she should have been paid a gross amount of $27,265.50 for a difference of
$3,432.50.

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was advised to submit financial information and a completed overpayment recovery
questionnaire (OWCP-20) within 30 days.
On January 8, 2013 appellant requested that OWCP make a decision based on the written
record and submitted a completed overpayment questionnaire. She contended that the
overpayment occurred through no fault of her own and requested waiver. Appellant stated that
she acted on incorrect information from OWCP and spent funds in ways that she would not have
done. She alleged a financial hardship if waiver was not granted. Appellant reported
approximately $2,252.74 as monthly income. Her monthly expenses were listed as a total of
$1,000.00, including $300.00 for food, $300.00 for clothing, $400.00 for utilities and $1,000.00
for “other.” Appellant listed various debts being paid totaling $241.00 a monthly installment.6
She reported her daughter as a dependent and stated that she had $162.00 in her checking
account and $5.00 in her savings account.
On January 23, 2013 OWCP advised appellant by telephone that it received the
completed overpayment questionnaire and had additional questions regarding her financial
records. Appellant stated that she did not want to participate in a conference. She did not
provide any additional information regarding monthly income and expenses.
By decision dated January 23, 2013, OWCP finalized the overpayment in the amount of
$3,432.50 for the period December 13, 2011 to September 22, 2012. It determined that appellant
should have received $27,265.50 based on the statutory 2/3 compensation rate instead of
$30,698.00 based on the 75 percent augmented compensation rate. OWCP found that she was
not at fault in the creation of the overpayment but determined that the overpayment was not
subject to waiver because there was insufficient evidence of record to establish that recovery of
the overpayment would defeat the purpose of FECA or be against equity and good conscience.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.7 If the disability is total, the United States shall pay the employee during the period of total
disability the basic compensation rate of 66 2/3 of his or her monthly pay. A disabled employee
is entitled to an augmented compensation rate of 75 percent if he or she has one or more
dependents.8
A dependent includes an unmarried child who, while living with the employee or
receiving regular contributions from the employee toward his or her support, is either 18 years of
age or over 18 years of age and incapable of self-support due to physical or mental disability.9 A
6

Appellant listed her debts as $1,800.00 with Time Finance with a monthly payment of $150.00 and $470.00 at
Macy’s with a monthly payment of $25.00 and $470.00 at Belk with a monthly payment of $41.00 and $550.00 at
NAPA with a monthly payment of $25.00.
7

5 U.S.C. § 8102.

8

O.R., 59 ECAB 432 (2008).

9

5 U.S.C. § 8110(a).

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child is also considered a dependent if he or she is an unmarried student under 23 years of age
who has not completed four years of education beyond the high school level and is currently
pursuing a full-time course of study at a qualifying college, university or training program.10
If a claimant received compensation at the augmented rate during a period when he or she
did not have an eligible dependent, the difference between the compensation that was paid at the
75 percent augmented rate and the compensation that should have been paid at the 66 2/3 percent
basic rate constitutes an overpayment of compensation.11
ANALYSIS -- ISSUE 1
Appellant claimed her daughter, who was born on June 25, 1989, as a dependent. OWCP
paid wage-loss compensation at the augmented rate of 75 percent beginning July 25, 1999.
Although herdaughter reached the age of 18 on June 25, 2007, appellant asserted that she was
still an eligible dependent because she was registered as a full-time college student.The student
dependency forms of record confirm that appellant’s daughter was enrolled on a full-time basis
at the University of South Carolina until December 12, 2011. On September 24, 2012 appellant
informed OWCP that her daughter was unable to complete the 2011 fall school semester due to
an illness. In a September 28, 2012 statement, she explained that her daughter withdrew from
college in order to undergo gallbladder surgery and was under medical care. Appellant stated
that she did not initially notify OWCP of the change in her daughter’s student status because she
was unaware of her daughter’s withdrawal from school and believed that her daughter still
qualified as a dependent. The record reveals that appellant’s daughter pursued a full-time course
of study at a qualifying college from August 21, 2008 to December 12, 2011. After
December 12, 2011, she did not enroll as a full-time student for the 2012 spring semester and
therefore was no longer a dependent as defined under FECA.
Appellant also alleged that her daughter was incapable of self-support during the relevant
time period because she had undergone gallbladder surgery. OWCP properly advised her by
letter dated September 15, 2011 that if her daughter was incapable of self-support due to a
physical or mental disability, a medical report was required from an attending physician. The
only medical report OWCP received regarding her daughter, however, was an October 4, 2012
unsigned form report referencing a migraine. OWCP did not receive adequate medical evidence
to establish physical or mental disability.
Accordingly, appellant was entitled to compensation at the basic rate following
December 12, 2011.12 OWCP calculated the difference between $30,698.00, the compensation
that was paid at the 75 percent augmented rate and $27,265.50, the compensation that should
have been paid at the 66 2/3 percent basic rate, to total $3,432.50. Appellant did not dispute the
calculation of overpayment. The Board finds that OWCP properly determined the fact and
amount of overpayment.
10

E.G., 59 ECAB 599 (2008).

11

Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

12

W.M., Docket No. 11-2000 (issued May 21, 2012).

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LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.13
Section 10.436 of the implementing regulations14 provide that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship to a currently or
formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery
needs substantially all of his or her current income (including compensation benefits) to meet her
current ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed a
specified amount as determined by OWCP from data furnished by the Bureau of Labor Statistics
(BLS).15 An individual is deemed to need substantially all of his or her income to meet current
ordinary and necessary living expenses if monthly income does not exceed monthly expenses by
more than $50.00.16
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship in attempting to repay debts; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.17
The individual who received the overpayment is responsible for the submission of
information regarding income, expenses and assets. This information is needed to determine
whether or not recovery of an overpayment would defeat the purpose of FECA or be against
equity and good conscience. This information will also be used to determine the repayment
schedule, if necessary.18
ANALYSIS -- ISSUE 2
OWCP determined that appellant was without fault in creating the overpayment. It may
only recover the overpayment if such collection would not defeat the purpose of FECA or be
13

5 U.S.C. § 8129(b).

14

20 C.F.R. § 10.436 (1999).

15

An individual’s assets must exceed a resource base of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent plus $960.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment; see Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6 (October 2004).
16

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

17

20 C.F.R. § 10.437 (1999).

18

Id. at § 10.438(a).

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against equity and good conscience.The Board finds that OWCP did not abuse its discretion by
refusing to waive recovery of the overpayment of compensation.
Appellant submitted a completed overpayment recovery questionnaire with financial
information outlining her monthly income, expenses and assets. She reported approximately
$2,252.74 as income. Her expenses were listedas a total of $2,000.00 a month, including
$300.00 for food, $300.00 for clothing, $400.00 for utilities and$1,000.00 for “other.” Appellant
also included various debts being paid totaling $241.00 a month installment. She stated that she
had $162.00 in her checking account and $5.00 in her savings account. The Board notes that
appellant did not submit any financial documents to verify her monthly expenses despite a
request by OWCP and an opportunity to submit such evidence. OWCPdetermined that although
she had claimed $1,000.00 per month in miscellaneous expenses, she did not provide adequate
documentation or additional evidence to support the listed expenses or to support the expenses
were reasonable. It also determined that it was unreasonable for appellant to require $300.00 per
month for clothing when the BLS Consumer Expenditure Survey indicated that the average
clothing expense for women 16 years of age and over was $300.00 per year. The Board notes
that these findings were reasonable based on the evidence of record.
The Board finds that appellant has not established that she needs substantially all of her
current income to meet ordinary and necessary living expenses. OWCP’s procedures provide
that 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. Appellant reported a monthly income of $2,252.74. OWCP determined that
her actual expenses were $941.00 as she could not establish the additional $1,000.00 expenses
for “other” or the $300.00 clothing expenses. Because appellant’s reported income exceeds her
ordinary and necessary living expenses by more than $50.00, the Board finds that she has not
shown that waiver of recovery would defeat the purpose of FECA as she does not need
substantially all of her current income to meet current ordinary and necessary living expenses.
The Board finds that appellant has not established that recovery would be against equity
and good conscience. The financial evidence available, as noted above, does not indicate that
appellant would experience severe financial hardship in repaying the debt. She did notsubmit
any evidence to establish that she had given up a valuable right in reliance on the overpayment or
changed her position for the worse.
Because appellant failed to establish that recovery of the overpayment in compensation
would defeat the purpose of FECA or be against equity or good conscience, the Board finds that
OWCP properly denied waiver of recovery of the overpayment in this case.
On appeal, appellant contends that the January 23, 2013 decision was premature because
OWCP failed to consider all the evidence submitted. She noted that her completed overpayment
questionnaire revealed that her monthly income exceeded her monthly expenses by only
$1,011.74.The Board has reviewed the evidence of record and determined that the evidence does
not to establish that recovery of the overpayment would be against equity and good conscience.
The Board finds that OWCP properly denied waiver of the overpayment.

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LEGEAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that when an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made by decreasing later
payments to which the individual is entitled.19
Section 10.441 of OWCP’s regulations provide that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors so as to minimize any hardship.20
Under OWCP’s procedures, the compromise of all or part of the overpayment and any
charges may be made depending upon the claimant’s financial circumstances in order to set a
repayment schedule. Compromise of the principal of the overpayment can be considered if
application of the interest charges would extend the period of repayment more than 35 percent.
Such a determination is made at the time the repayment schedule is established.21 Compromise
is a matter which rests in the discretion of OWCP.22
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly directed recovery of the overpayment at the rate of
$250.00 from each continuing compensation payment.
OWCP took several factors into consideration in setting the rate of recovery from
appellant’s continuing compensation, including financial circumstances, the extent of the
overpayment and the amount of time it would take to recover the debt. It determined that the
debt would be collected by deducting $250.00 from each of appellant’s continuing compensation
payments.
The Board finds that OWCP did not act unreasonably in determining the amount to be
taken out of appellant’s continuing compensation checks. Appellant’s monthly income was
$2,252.74 and her monthly expenses were determined to be $941.00.The difference between
these two amounts is $1,311.74. OWCP acted within its discretion when it determined that it
would collect the overpayment of $3,432.50 by deducting $250.00 from each of appellant’s
continuing compensation payments.

19

Id. at § 10.436.

20

Id. at § 10.441(a).

21

Supra note 15at Chapter 6.300.5 (May 2004). See Jorge E. Diaz, 53 ECAB 403 (2002).

22

D.C., Docket No. 10-1046 (issued January 19, 2011); Linda D. Lane, 46 ECAB 727 (1995).

8

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $3,432.50. OWCP properly denied waiver and required recovery of the overpayment by
deducting $250.00 from appellant’s continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THATthe January 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 19, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Claremore, OK, Employer
__________________________________________

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

Docket No. 07-1078
Issued: September 17, 2007

Case Submitted on the Record

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

JURISDICTION
On March 13, 2007 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated February 1, 2007, which determined her wage-earning
capacity based on actual earnings. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of appellant’s claim. On appeal, appellant contends that she cannot
perform the position.
ISSUE
The issue is whether appellant’s actual earnings as a modified rural carrier fairly and
reasonably represented her wage-earning capacity.
FACTUAL HISTORY
On May 6, 2004 appellant, then a 57-year-old rural carrier, filed a traumatic injury claim
alleging that on May 3, 2004 she sprained/strained her lower back when her lower back was
jostled while driving on a road. The Office accepted the claim for lumbar strain/sprain,
lumbosacral joint ligament strain/sprain, sacrum strain/sprain and sacroiliac ligament
strain/sprain and authorized an L4-5 bilateral laminectomy and discectomy, which was

performed on November 10, 2005. By letter dated November 25, 2005, the Office advised
appellant that she had been placed on the periodic compensation rolls to receive compensation
benefits for temporary total disability.
On February 1, 2006 Dr. Richard D. Thomas, a treating physician, released appellant to
work with restrictions for two hours per day which would gradually increase to eight hours. The
restrictions included a sit down job with no twisting bending or lifting more than 10 pounds.
Dr. Thomas indicated that if she tolerated the two hours, then “[a]fter two weeks she can
progress to four hours per day.”
On February 2, 2006 the employing establishment offered appellant a modified rural
carrier position for two hours per day, but noted that the position was available for up to eight
hours. The duties of the position included answering the telephone up to two hours and
intermittent time spent writing up mark-ups and second notices and undeliverable bulk business
mail (UBBM). The employing establishment noted that the duties were performed sitting except
for UBBM, which could be performed sitting or standing. The physical restrictions included no
lifting more than 10 pounds, no repetitive lifting over 5 pounds, only sitting and no excessive
twisting or bending. Appellant accepted the job offer and returned to limited-duty work for two
hours per day effective February 6, 2006. Her hours were increased to four hours per day on
February 27, 2006 and then six hours on April 26, 2006. On June 26, 2006 Dr. Thomas released
her to work eight hours per day.
In a July 31, 2006 report, Dr. Thomas noted that appellant had been doing well working
eight hours per day but remained unable to perform her date-of-injury position. He
recommended a functional capacity evaluation be performed to determine appellant’s functional
limitations.
On December 18, 2006 Dr. Thomas provided permanent restrictions for appellant. The
restrictions included no lifting over 25 pounds, no repetitive lifting of more than 15 pounds, no
stooping, climbing, kneeling, squatting or excessive twisting or bending and no standing more
than three hours in an eight-hour day. Dr. Thomas also stated that appellant’s standing would
“have to be done in shifts, with 30 minutes of standing followed by 15 minutes of sitting” and no
sitting more than 30 minutes at a time.
On January 5, 2007 the employing establishment offered appellant a limited-duty position
of modified rural carrier working eight hours per day based upon the restrictions noted by
Dr. Thomas in his December 18, 2006 report. The physical restrictions including no repetitive
lifting more than 15 pounds, no lifting more than 25 pounds, no squatting, climbing, stooping,
kneeling, twisting or bending, no pulling or pushing more than 25 pounds and no standing more
than three hours per day. The job description noted that appellant would case auxilliary route 21.
She would be required to pick up magazines, letters or other mail pieces and place in on the case
for the route, which would take 1.5 to 2 hours per day. The employing establishment stated that
assistance would be provided for loading the mail vehicle to keep within appellant’s weight
restriction of no lifting more than 25 pounds. She would then deliver and pick-up mail from mail
boxes, which would take approximately 2.5 to 3 hours per day. Appellant would also be
required to deliver stamps by facsimile and express mail as required. The effective start date of
the position was January 20, 2007.

2

On January 16, 2007 Dr. Thomas reviewed and approved the proposed job offer.
On January 22, 2007 appellant accepted the offered position with corrections noted on the
letter. The effective and response date of January 20, 2007 was crossed out and replaced with
January 23, 2007. Under job description “[c]ase auxilliary route 21” was replaced with “[a]ssist
delivering mail and rural routes[;] [a]ssist casing mail and rural routes.” The sentence “assist
casing and carrying mail on rural routes” was added.
By decision dated February 1, 2007, the Office determined that appellant’s actual
earnings effective January 20, 2007 as a modified rural carrier fairly and reasonably represented
her wage-earning capacity. The Office found that appellant’s actual earnings met or exceeded
the current wages of her date-of-injury position and, therefore, she did not have a loss of wageearning capacity.
LEGAL PRECEDENT
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity.1 Generally, wages actually earned are the best
measure of a wage-earning capacity and, in the absence of evidence showing that they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.2
Office procedures provide requirements for a proper determination of wage-earning
capacity based on actual earnings.3 A determination of wage-earning capacity may be made
when a claimant is currently working in a position and after working for 60 days, a determination
as to whether actual earnings fairly and reasonably represent wage-earning capacity can be
made.4
ANALYSIS
The Office based its loss of wage-earning capacity decision on appellant’s wages as of
January 20, 2007. The Office stated that she had been employed as a “modified rural carrier”
effective January 20, 2007, had worked more than two months and the position was found to
fairly and reasonably represent wage-earning capacity. However, the facts of the case do not
support this conclusion. Appellant accepted a February 2, 2006 job offer by the employing
establishment and initially returned to work for two hours per day on February 6, 2006, which
1

5 U.S.C. § 8115(a).

2

D.S., 58 ECAB ___ (Docket Nos. 06-1408 & 06-2061, issued March 1, 2007); Dennis E. Maddy, 47 ECAB
259 (1995).
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (July 1997). See Connie L. Potratz-Watson, 56 ECAB ___ (Docket No. 03-1346, issued
February 8, 2005).
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (July 1997); see A.P., 58 ECAB ___ (Docket No. 06-1428, issued November 29, 2006).

3

increased to eight hours per day on June 26, 2006. This position required her to perform her
duties sitting down. On December 18, 2006 Dr. Thomas concluded that appellant had reached
maximum medical improvement and provided permanent physical restrictions. Based upon
these restrictions, the employing establishment, on January 5, 2007, offered appellant the
limited-duty position of modified rural carrier working eight hours per day, which she accepted.
Appellant’s duties included driving a vehicle and delivering mail. To the extent that the Office
was treating the actual earnings as resulting from one position that had been performed for more
than 60 days, the record does not support such a finding. The position appellant was performing
for eight hours as of June 26, 2006 was sedentary and required no lifting more than 10 pounds
and no repetitive lifting of more than 5 pounds. The position she started performing on
January 23, 2007 required her to drive a vehicle and deliver mail. The physical restrictions of
the position included no lifting more than 25 pounds and no repetitive lifting more than
15 pounds. It is evident from the record that the January 5, 2007 job offer represented a new
position as the duties and lifting restrictions were different from the limited-duty job appellant
had been performing since returning to work.
The Office made a determination that the January 5, 2007 position that appellant accepted
on January 22, 2007 represented her wage-earning capacity as of January 20, 2007, which was
the effective start date noted on the job offer. However, the record is unclear as to when
appellant started the position as her acceptance noted January 23, 2007 as the response date and
effective start date. The Office did not acknowledge in its decision that the position appellant
was performing as of January 20 or 23, 2007 involved different duties and physical restrictions
than the one she had been performing previously. In addition, Dr. Thomas did not provide
permanent work restrictions for appellant until December 18, 2006, which was the basis of the
January 5, 2007 job offer. The Board notes that a claimant must work in the position for at least
60 days5 and at the time of the February 1, 2007 decision appellant had only performed the
position for little over a week.
Accordingly, the Board finds that the Office did not properly determine appellant’s wageearning capacity based on the actual earnings effective January 20, 2007 as she had not been
performing this position for at least 60 days.
CONCLUSION
The Office did not properly determine appellant’s wage-earning capacity based on actual
earnings as she had not worked in the position for 60 days.

5

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 1, 2007 is reversed.
Issued: September 17, 2007
Washington, DC

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
DEPARTMENT OF THE ARMY, Rufus, OR,
Employer
__________________________________________

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

Docket No. 13-1022
Issued: August 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 20, 2013 appellant, through his attorney, filed a timely appeal from a
February 6, 2013 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 does have jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has a ratable hearing loss entitling him to a schedule
award.
On appeal, appellant’s counsel contends that OWCP’s decision was contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 29, 2011 appellant, then a 60-year-old crane operator, filed an occupational
disease claim alleging binaural hearing loss as a result of exposure to noise over 24 years. He
first became aware of his condition on January 1, 1988 and realized that it resulted from his
employment on January 1, 1989.
In a letter dated August 31, 2011, OWCP advised appellant that no evidence was received
to establish his claim. It requested additional factual and medical information in support of the
claim.
In an August 23, 2011 statement, appellant provided his employment history. From 1967
to 1970, he was a helicopter crew chief in the U.S. Army; from 1971 to 1988 he was a crane and
equipment operator for various private employers; from 1988 to the present he worked as a crane
operator at the employing establishment. Appellant reported that he was exposed to noise from
power house generators, crane diesel engines, electrical breakers, high pressure air, large
volumes of water, high pitched bearing noise, boat engines, buzzers, bells, whistles, helicopters,
heavy trucks and other noises associated with hydroelectric dams. He utilized earplugs.
Appellant submitted audiograms dated from October 3, 1988 to November 5, 2009 which
showed varying degrees of hearing loss and noise level assessment reports.
In a February 14, 2011 statement, James R. Borley, the structural crew supervisor, agreed
with appellant’s statement regarding the location and level of noise exposure at work. He was
not aware of any previous hearing problems. Mr. Borley stated that appellant was still employed
as a crane operator on his crew.
On November 28, 2011 OWCP referred appellant, together with a statement of accepted
facts, to Dr. Jeffrey Davis, a Board-certified otolaryngologist, for a second opinion evaluation.
In a December 27, 2011 report, Dr. Davis reviewed appellant’s history of treatment, the
statement of accepted facts, and noted the exposure to workplace noise. He conducted an
examination and diagnosed bilateral sloping sensorineural hearing loss due to noise exposure at
work. An audiogram conducted that day revealed losses at 500, 1,000, 2,000 and 3,000 Hertz
(Hz) of 15, 15, 25 and 45 decibels (dB) for the right ear and 15, 15, 20 and 40 for the left ear.
Dr. Davis reported that appellant was at maximum medical improvement and recommended
hearing aids.
By decision dated January 26, 2012, OWCP accepted appellant’s claim for binaural
hearing loss.
OWCP forwarded the record to a district medical adviser to determine the extent of any
permanent hearing loss in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).2
In a February 7, 2012 report, OWCP’s medical adviser reviewed the December 27, 2011 report
and audiometric testing from Dr. Davis to determine that appellant’s binaural hearing loss was
not severe enough to be ratable according to OWCP’s current standards for evaluating hearing
2

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

2

loss. He determined that appellant had zero percent monaural hearing loss in each ear and zero
percent binaural hearing loss. The medical adviser noted that appellant reached maximum
medical improvement on December 27, 2011.
In a decision dated February 10, 2012, OWCP determined that appellant was not entitled
to a schedule award because he did not have a ratable hearing loss.3
On June 4, 2012 appellant, through counsel, requested reconsideration. He submitted an
April 9, 2012 audiogram, which revealed losses at 500, 1,000, 2,000 and 3,000 Hz of 10, 20, 25
and 45 dB for the right ear, respectively, and 10, 15, 25 and 40 for the left ear. In an April 11,
2012 hearing loss and disability form, the audiologist stated that appellant sustained moderate-tosevere sensorineural hearing loss bilaterally due to continual exposure to hazardous noise.
By decision dated June 18, 2012, OWCP denied modification of the February 10, 2012
decision denying a schedule award. It noted that because appellant continued working at the
employing establishment with additional noise exposure, it would be more appropriate for him to
file a new schedule award claim based on the new exposure.
On June 29, 2012 counsel submitted a request for reconsideration. In a June 21, 2012
statement, he stated that the June 18, 2012 decision was in error because it was based on
inaccurate information. Counsel noted that appellant retired from federal service effective
December 31, 2011 and had been off work 30 days before his retirement date, thus, he did not
experience any new exposure.
In a decision dated February 6, 2013, OWCP modified the June 18, 2012 decision to find
that appellant did not have new exposure to noise. It denied appellant’s schedule award claim
finding that the medical evidence failed to establish a ratable hearing loss.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule
losses.5

3

This decision also noted that if appellant would like to have hearing aids, he should seek further evaluation by
an audiologist to determine his specific needs.
4

5 U.S.C. §§ 8101-8193.

5

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

3

OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dB is deducted because, as the
A.M.A., Guides points out, losses below 25 dB result in no impairment in the ability to hear
everyday speech under everyday conditions.7 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.8 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.9
ANALYSIS
OWCP accepted that appellant sustained bilateral hearing loss due to noise exposure in
his federal employment. The issue is whether he sustained a ratable hearing loss in accordance
with the A.M.A., Guides, entitling him to a schedule award.
OWCP properly referred appellant to Dr. Davis for a second-opinion evaluation
regarding his hearing loss. In a December 27, 2011 report, Dr. Davis conducted an otologic
examination and reviewed appellant’s audiological evaluation. He found that appellant sustained
a bilateral sloping sensorineural hearing loss due to noise exposure at work. In a February 7,
2012 report, OWCP’s medical adviser reviewed Dr. Davis’s report and agreed that appellant’s
hearing loss resulted from his employment. He applied OWCP’s standardized procedures to the
December 27, 2011 audiogram performed for Dr. Davis to determine if appellant’s hearing loss
was ratable. Testing for the right ear at frequency levels of 500, 1,000, 2,000 and 3,000 Hz
revealed dB losses of 15, 15, 25 and 45. These dB were totaled at 100 and were divided by 4 to
obtain an average hearing loss at those Hz of 25 dB. The average of 25 dB was then reduced by
the fence of 25 dB to equal zero percent hearing loss for the right ear.10 Testing for the left ear at
the frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed dB losses of 15, 15, 20, and 40
respectively. These dB were totaled at 95 and were divided by 4 to obtain the average hearing
loss at those Hz of 22.5 dB. The average of 22.5 dB was reduced by the fence of 25 dB to equal
zero percent hearing loss for the left ear. Based on this test, the medical adviser determined that
appellant did not sustain a ratable hearing loss.
The Board finds that the medical adviser properly applied the A.M.A., Guides to
Dr. Davis’s report and the December 27, 2011 audiogram. Dr. Davis provided a thorough
examination and the medical adviser provided a reasoned opinion explaining how the findings on
6

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

7

See A.M.A., Guides 250 (6th ed. 2009).

8

Id.

9

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

10

The fence of 25 dB is deducted as the A.M.A., Guides note that losses below 25 dB result in no impairment in
the ability to hear speech in everyday conditions. See Stuart M. Cole, 46 ECAB 1011 (1995).

4

examination and testing resulted in a zero percent monaural hearing loss and a zero percent
binaural hearing loss as set forth above. Although the record contains one other audiogram
submitted by appellant, this does not establish a ratable hearing loss. The April 9, 2012
audiogram is of no probative value as it was not certified by a physician as accurate.11 Further,
appellant would not otherwise be ratable for schedule award purposes as it shows lesser hearing
loss at the pertinent frequency levels than did the audiogram performed for Dr. Davis. The
Board finds that because his hearing loss is not ratable under the standards used by OWCP, he is
not entitled to a 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 OWCP properly denied appellant’s claim for a schedule award for
hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the February 6, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
11

M.H., Docket No. 13-135 (issued May 2, 2013); James A. England, 47 ECAB 115 (1995).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL BUSINESS CENTER,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 09-1268
Issued: January 22, 2010

Case Submitted on the Record

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

JURISDICTION
On April 16, 2009 appellant, through his representative, filed a timely appeal from the
June 4, 2008 and February 4, 2009 schedule award decisions of the Office of Workers’
Compensation Programs. Pursuant to 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 14 percent right upper extremity
impairment, for which he received a schedule award.
On appeal, appellant’s attorney contends that the December 31, 2007 report of appellant’s
attending osteopath is in conflict with the opinion of the Office medical adviser.
FACTUAL HISTORY
On April 24, 2006 appellant, then a 61-year-old mason, filed an occupational disease
claim alleging that his job aggravated a preexisting right shoulder condition. The Office

accepted his claim for rotator cuff tear of the right shoulder. On August 3, 2006 appellant
underwent an acromioplasty and rotator cuff repair performed by Dr. John M. Fenlin, Jr., a
Board-certified orthopedic surgeon. The Office paid medical and wage-loss compensation.
Appellant returned to full-time light-duty work on March 5, 2007 and was released to full duty
on May 22, 2007.
On July 30, 2007 appellant filed a schedule award claim. In a July 19, 2007 report,
Dr. Fenlin stated his belief that appellant had lost 20 percent of his shoulder motion as a result of
the work injury. He did not provide any range of motion findings. In an August 28, 2007 report,
Dr. Fenlin stated that he had reviewed the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) and would allow appellant two percent
impairment for diminished adduction and two percent impairment for diminished forward
flexion. He noted that appellant also had complaints of fatigue and pain with heavy use which
should be compensated but which were not accounted for in the guidelines. Dr. Fenlin advised
that maximum medical improvement was reached as of July 17, 2007. Again, he did not provide
any specific range of motion measurements.
On September 21, 2007 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and
Office medical adviser, reviewed the medical evidence to find that appellant had 14 percent
impairment of the right arm. He noted that the date of maximum medical improvement was
July 17, 2007. Dr. Berman indicated that he rated impairment under the fifth edition of the
A.M.A., Guides.1 He stated that Dr. Fenlin’s recommendation of two percent abduction
impairment was equivalent to 140 degrees of abduction at Figure 16-43, page 477.2 Under
Figure 16-40, Dr. Berman determined that two percent diminished forward flexion was
equivalent to 150 degrees.3 Therefore, the total loss of range of motion was four percent.
Dr. Berman applied the diagnosis-based impairment estimate of Table 16-27, page 506 to allow
10 percent impairment for the resection arthroplasty of the distal clavicle. Utilizing the
Combined Values Chart, he found a total 14 percent impairment. Dr. Berman noted that
Dr. Fenlin did not provide any basis for rating 20 percent impairment in the July 19, 2007 report.
In an October 16, 2007 decision, the Office granted appellant a schedule award for 14
percent right upper extremity impairment. The period of the award ran from July 17, 2007 to
May 17, 2008.
On October 26, 2007 appellant, through counsel, requested an oral hearing that was held
on February 27, 2008. At the hearing, he submitted a December 31, 2007 report from Dr. David
Weiss, an osteopath, who rated impairment as 22 percent loss to the right arm. Dr. Weiss
provided findings on physical examination. Range of motion of the right shoulder revealed
forward flexion of 140 degrees which represented three percent impairment;4 abduction of
1

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

2

The Board notes that the medical adviser was in error as Dr. Fenlin identified impairment due to adduction and
not abduction.
3

Dr. Berman mischaracterized this as 150 degrees of abduction rather than 150 degrees flexion.

4

Figure 16-40, page 476.

2

90 degrees which represented four percent impairment;5 internal rotation of 35 degrees which
represented three percent impairment;6 and external rotation of 80 degrees which was zero
percent impairment. The total loss of range of motion was found to be 10 percent. Dr. Weiss
also allowed 10 percent impairment for the resection arthroplasty which, when combined with
the loss of range of motion, totaled 19 percent impairment to the arm. To this, he also combined
3 percent impairment for pain utilizing Figure 18-1 to find total impairment of 22 percent.
Dr. Weiss advised that appellant reached maximum medical improvement as of
December 31, 2007.
In a May 15, 2008 decision, an Office hearing representative set aside the October 16,
2007 schedule award and remanded the case for review of the medical evidence from Dr. Weiss.
On May 31, 2008 Dr. Berman again reviewed the medical record. He stated that he
relied on the range of motion reported by Dr. Fenlin, the operating surgeon, who utilized the
A.M.A., Guides to find two percent impairment for diminished abduction and two percent
impairment for loss of forward flexion. Dr. Berman characterized Dr. Fenlin as an experienced
orthopedic surgeon specializing in shoulder surgery and, for that reason, “his evaluation of range
of motion I felt, took precedence over” that of Dr. Weiss. He also discounted the impairment
rating of Dr. Weiss in that he rated pain at three percent under Chapter 18 rather than under the
organ or body systems. Dr. Berman concluded that appellant did not have greater than
14 percent impairment of the right arm.
By decision dated June 4, 2008, the Office denied appellant’s claim for an additional
schedule award.
Appellant disagreed with the Office’s decision and requested an oral hearing which was
held on October 28, 2008 via videoconference.
By decision dated February 4, 2009, an Office hearing representative affirmed the June 4,
2008 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act7 and its
implementing regulations8 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. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. For consistent results and to ensure equal justice, under the law to
all claimants, good administrative practice necessitates the use of a single set of tables so that

5

Id. at 477, Figure 16-43.

6

Id. at 479, Figure 16-46.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

3

there may be uniform standards applicable to all claimants. The A.M.A., Guides (5th ed. 2001)
has been adopted by the Office for evaluating schedule losses.9
Section 18.3d(c) of the A.M.A., Guides provides that an additional three percent
impairment may be granted for pain that slightly increases the burden of a condition.10 The
A.M.A., Guides warns that examiners should not use Chapter 18 to rate pain-related impairment
for any condition that can be adequately rated on the basis of the body and organ impairment
rating systems given in the other chapters.11 Chapter 16 provides that, in consideration of
resection arthroplasty of a joint, impairment may only be combined with that due to decreased
motion. Pain and decreased muscle strength are not to be rated separately.12
Office procedures provide that, after obtaining all necessary medical evidence, the record
be routed to an Office medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale
for the percentage of impairment specified.13
ANALYSIS
The Board finds that the case is not in posture for decision. A redetermination of the
extent of permanent impairment is warranted.
The medical evidence of record consists of examinations of appellant by Dr. Fenlin, an
attending surgeon, and Dr. Weiss, an attending osteopath. The Board notes that Dr. Fenlin
provided only brief descriptions of two percent loss of adduction and two percent loss of forward
flexion. Dr. Fenlin did not provide more than a general reference to the A.M.A., Guides.
Dr. Berman an Office medical adviser, attempted to correlate the findings to the proper figures
pertaining to shoulder range of motion.
However, his September 21, 2007 report
mischaracterized the reported loss of adduction as “abduction,” even as it pertained to the
utilization of Figure 16-40. This renders the loss of range of motion findings accepted by
Dr. Berman of reduced probative value.
Dr. Weiss made specific findings of degrees in loss of range of motion on examination of
appellant, as noted. Dr. Berman did not provide sufficient rationale for excluding the findings
reported by Dr. Weiss from consideration. Especially, in light of the fact that he misinterpreted
aspects of Dr. Fenlin’s report. Citing the medical specialty of the respective attending physicians
is an inadequate justification on which to favor Dr. Fenlin over Dr. Weiss. One medical report

9

See id.; see also David W. Ferrall, 56 ECAB 362 (2005).

10

A.M.A., Guides, supra note 2 at 573.

11

Id. at 571. See also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700
Exhibit 4 (November 2002).
12

Id. at 504

13

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

4

should not be arbitrarily selected over the other.14 Dr. Fenlin’s reports do not provide any of the
detail found in the report of Dr. Weiss. Although the Board has held that opinions by physicians
who have training and knowledge in a specialized medical field may have greater probative
value concerning medical questions peculiar to that field than the opinions of other physicians,15
no individual factor standing alone necessarily determines the weight of such medical
evidence.16 Dr. Weiss reported greater loss of range of motion than that rated by Dr. Berman.
The case will be returned to the Office for further evaluation of his findings.
There is no conflict in medical opinion, as counsel urged the Board to consider, as the
examinations on which the range of motion and other findings are based come from two
attending physicians.17 The reports of the Office medical adviser are of reduced probative value
for the reasons noted. The Board notes that both Dr. Weiss and the Office medical adviser
agreed that appellant has 10 percent impairment for the right shoulder resection arthroplasty
under Table 16-27, page 506 of the A.M.A., Guides. Under Chapter 16.7a, impairment due to
loss of range of motion can be combined with the bone and joint deformity represented in the
resection arthroplasty rating.
As to the consideration of pain as an impairment, Dr. Weiss found that appellant had
three percent impairment under Figure 18-1. However, there is nothing in his report to indicate
that he performed a formal pain-related analysis under section 18.3d of the A.M.A., Guides.
This section of the A.M.A., Guides specifically notes that examiners should not use Chapter 18
to rate pain-related impairment for any condition that can be adequately rated on the basis of the
rating systems found in other chapters, including Chapter 16. Even if Dr. Weiss had, however,
the text at Chapter 16.7a must be followed to avoid duplication of certain impairments. At page
504, the A.M.A., Guides provide that shoulder impairment values, including resection
arthroplasty at section 16.7b, “may be combined only with impairments due to decreased motion
(Section 16.4). Pain and decreased muscle strength are not rated separately.” (Emphasis in the
original.) For this reason, the three percent rating for pain by Dr. Weiss must be excluded as it is
already incorporated in the impairment value of the resection arthroplasty under Table 16-27.
While Dr. Berman was ultimately correct in dismissing the rating for pain, it is for the reason
found in the text of Chapter 16.

14

See Skipper Walker, 31 ECAB 790 (1980).

15

Mary S. Brock, 40 ECAB 461 (1989).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.4b (October 2005) see Michael S. Mina, 57 ECAB 379 (2006) (in assessing medical evidence, the weight of
such evidence is determined by its reliability, its probative value and its convincing quality; the opportunity for and
thoroughness of examination, the accuracy and completeness of the physician’s knowledge of the facts and medical
history, the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion are
facts, which determine the weight to be given to each individual report).
17

See 5 U.S.C. § 8123(a) which provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a third physician
who shall make an examination. See, e.g., Roger W. Griffith, 51 ECAB 491 (2000); Noah Ooten, 50 ECAB
283 (1999).

5

The case will be remanded to the Office for further consideration of the medical
evidence. After such further development as it deems warranted, the Office should issue a
de novo decision on the permanent impairment to appellant’s right arm.
CONCLUSION
The Board finds the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2009 and June 4, 2008 decisions of
the Office of Workers’ Compensation Programs are set aside. The case is remanded to the
Office for further action in conformance with this decision of the Board.
Issued: January 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
New York, NY, Employer
)
___________________________________________ )
C.V., Appellant

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

Docket No. 14-1572
Issued: June 19, 2015

Case Submitted on the Record

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

JURISDICTION
On July 2, 2014 appellant, through counsel, filed an application for review of a
January 15, 2014 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(a) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
November 26, 2012 for refusing an offer of suitable work.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 2, 2009 appellant then a 50-year-old clerk, was injured when she stumbled
on tiles in a workplace restroom and fell on her knees and hands.2 She stopped work on
December 2, 2009. On August 2, 2010 OWCP accepted the claim for bilateral contusions of the
knees, hands, and sprain of the right wrist. Appellant received wage-loss compensation and was
placed on the periodic rolls.
Appellant received treatment from Dr. Dante A. Trovato, a Board-certified orthopedic
surgeon, found her totally disabled and held her off work.
In its attempt to obtain current medical evidence, by letters dated March 16 and April 5,
2011, OWCP referred appellant for a second opinion examination, along with a statement of
accepted facts, a set of questions and the medical record to Dr. Michael Katz, a Board-certified
orthopedic surgeon. In an April 28, 2011 report, Dr. Katz noted appellant’s history of injury and
treatment, and diagnosed resolved bilateral hand and wrist contusion, resolved left knee
contusion, and right knee internal derangement. He recommended a right knee arthroscopy as he
found the degenerative joint condition had been aggravated by the fall. Dr. Katz explained that,
if appellant did not proceed with the surgery, she could return to work for eight hours a day with
limited duty.
On May 9, 2011 OWCP contacted the employing establishment and requested a limitedduty job offer. The treating physician, Dr. Trovato continued to treat appellant and advised that
she was disabled.
On June 30, 2011 the employing establishment formulated a modified job offer for
appellant, but she did not return to work.
By letter dated May 9, 2012, OWCP again referred appellant for a second opinion to
obtain an updated medical report, along with a statement of accepted facts, a set of questions,
and the medical record to Dr. Leon Sultan, a Board-certified orthopedic surgeon.3 In a May 23,
2012 report, Dr. Sultan noted appellant’s history of injury and treatment, and provided
examination findings. He determined that she had a right knee medial meniscus tear,
superimposed on a preexisting degenerative osteoarthritic condition, along with obesity.
Dr. Sultan explained that appellant would benefit from arthroscopic surgery. He advised that, if
surgery was not conducted, she could return to work for four to six hours per day in a modified
clerical position with no lifting over 10 pounds and no squatting, kneeling, and climbing.

2

The record reflects that appellant had a prior Claim No. xxxxxx101 for an orthopedic injury on July 15, 2004,
which was accepted for lumbar sprain. Appellant was temporarily totally disabled for 19 months following the
injury and returned to eight hours limited duty in March 2006. She was working limited duty when she sustained
the present injury. This prior claim is not presently before the Board.
3

OWCP initially referred appellant to Dr. Marvin Gilbert, a Board-certified orthopedic surgeon, but OWCP’s
referral letter was sent to an incorrect address as appellant had moved. Thereafter, OWCP referred appellant to
Dr. Sultan.

2

On June 7, 2012 OWCP contacted the employing establishment and provided a copy of
Dr. Sultan’s May 23, 2012 report. The employing establishment was requested to determine
whether a job offer was available to accommodate appellant’s restrictions. On June 22, 2012 it
provided her with a modified mail processing clerk position, for eight hours per day, utilizing the
restrictions of Dr. Sultan.
On July 25, 2012 appellant declined the modified job offer based upon her physician’s
advice. She provided the employing establishment with a copy of Dr. Trovato’s July 25, 2012
treatment note, advising that she was currently disabled and incapable of performing her duties.
Dr. Trovato continued to treat appellant and advised that she was disabled and unable to work.
By letter dated August 20, 2012, OWCP advised appellant that the modified mail
processing clerk position had been found to be suitable to her capabilities and was currently
available. It found the work restrictions set by Dr. Sultan to be consistent with the offered
position. Appellant was advised that she should accept the position or provide an explanation for
refusing the position within 30 days. OWCP informed her that, if she failed to accept the offered
position and failed to demonstrate that the failure was justified, her compensation would be
terminated.
OWCP received a September 5, 2012 medical update from Dr. Trovato who noted that
appellant was under his care and fully disabled and incapable of performing the modified duties
as outlined. It also received previously submitted treatment notes and physical therapy notes. In
letters dated September 14, 2012, appellant’s counsel argued that Dr. Trovato’s September 5,
2012 report supported that appellant was unable to work.
On September 21, 2012 OWCP informed appellant that her reasons for refusing the
position were not acceptable and allowed an additional 15 days for appellant to accept the
position. Appellant was advised that no further reasons for refusal would be considered.
On October 1, 2012 appellant’s counsel argued that Dr. Trovato’s September 5, 2012
report supported that appellant was unable to work and there was an unresolved conflict. In
reports dated October 3, 2012, Dr. Trovato repeated that appellant was disabled and unable to
work.
On October 16, 2012 the employing establishment provided appellant with a new
modified mail processing clerk position, for four hours a day, based upon Dr. Sultan’s
restrictions.
In a letter dated October 23, 2012, OWCP notified appellant that the modified position of
a mail processing clerk had been found to be suitable to her capabilities and was currently
available. It advised that on June 22, 2012 the employing establishment provided a modified job
offer for appellant which she declined. OWCP explained that, upon making a final
determination of her wage-loss benefits, it was discovered that the original job offer was for an
eight-hour workday. It explained that the employing establishment was contacted and a fourhour job offer was formulated for appellant. OWCP stated that appellant had 30 days to accept
the new four-hour-a-day position or provide reasons as to why the position was not suitable. It

3

informed her that, if she failed to accept or demonstrate that her failure was justified,
compensation benefits would be terminated.
On November 26, 2012 OWCP received appellant’s counsel’s response to OWCP’s
October 23, 2012 letter. Counsel argued that Dr. Trovato’s opinion in his September 5, 2012
report supported that appellant could not perform the duties of the offered position. He argued
that his opinion could not be ignored. Furthermore, counsel asserted that the opinions of
Drs. Trovato and Sultan were in conflict and an impartial medical examiner should be selected
by OWCP. He indicated that an unresolved conflict remained and the termination was not
justified.
By decision dated November 26, 2012, OWCP terminated appellant’s entitlement to
monetary compensation benefits, effective that date, on the basis that she had refused suitable
work. It determined that the position was suitable and in accordance with the restrictions of the
second opinion physician, Dr. Sultan, who had released appellant to work four to six hours per
day in a modified clerical position with restrictions of no lifting over 10 pounds and avoiding
squatting, kneeling, and climbing. OWCP stated that no response to its October 23, 2012
notification was received.
Appellant’s counsel requested reconsideration on November 17, 2013 and submitted
additional evidence.
By decision dated January 15, 2014, OWCP denied modification of the November 26,
2012 decision.
LEGAL PRECEDENT
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”4
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.5 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.6 To justify termination, OWCP must show that the
work offered was suitable and that appellant was informed of the consequences of his refusal to
accept such employment.7 In determining what constitutes “suitable work” for a particular
disabled employee, OWCP considers the employee’s current physical limitations, whether the
work is available within the employee’s demonstrated commuting area, the employee’s
4

5 U.S.C. § 8106(c).

5

Joyce M. Doll, 53 ECAB 790 (2002).

6

20 C.F.R. § 10.517(a).

7

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).

4

qualifications to perform such work and other relevant factors.8 The issue of whether an
employee has the physical ability to perform a modified position offered by the employing
establishment is primarily a medical question that must be resolved by medical evidence.9
OWCP procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer or medical evidence of inability to do the work or travel to the job.10
When OWCP considers a job to be suitable, it shall advise the employee of its finding
and afford him or her 30 days to either accept the job or present any reasons to counter OWCP’s
finding of suitability.11 If the employee presents such reasons and OWCP determines that the
reasons are unacceptable, it will notify the employee of that determination and further inform the
employee that she has 15 days within which to accept the offered work without penalty.12 After
providing the 30-day and 15-day notices, OWCP will terminate the employee’s entitlement to
further wage-loss compensation and schedule award benefits.13 The employee, however,
remains entitled to medical benefits.14
The Board has further found that, although OWCP cannot ignore evidence submitted
after the period allotted for submitting reasons for not accepting an offered position, submission
of such belated evidence does not require OWCP to afford appellant another 15 days to accept or
reject the position. Otherwise an appellant could postpone indefinitely the termination of
compensation for refusal of suitable work by offering new reasons each time OWCP advises
appellant that she must accept the position or have her compensation terminated.15 Nevertheless,
OWCP must consider the reasons and evidence and may then reject them as unacceptable and
terminate compensation.16
ANALYSIS
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
compensation benefits as it did not consider evidence submitted by appellant at the time of its
termination decision.

8

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

9

Gayle Harris, 52 ECAB 319 (2001).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Refusal of Job Offer, Chapter 2.814.5 (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
11

20 C.F.R. § 10.516.

12

Id.

13

Id. at § 10.517(b).

14

Id.

15

Melvin James, 55 ECAB 406 (2004).

16

Id., Kenneth R. Love, 50 ECAB 193, 198 (1998).

5

Under Maggie L. Moore,17 the Board found that OWCP denied appellant a reasonable
opportunity to comply with 5 U.S.C. § 8106(c) when it terminated her compensation for refusal
of suitable work without first advising her that her reasons for refusal were insufficient to justify
such refusal. In Maggie L. Moore, the Board held that due process and elementary fairness
require that OWCP must not only inform each claimant of the provisions of the above statute,
but also inform her that a specific position offered is suitable; the consequences of refusal of the
position; and allow the claimant a reasonable period to accept or reject the position or submit
evidence or reasons why the position is not suitable and cannot be accepted.18
In this case, in a letter dated October 23, 2012, OWCP advised appellant that the position
was suitable and provided her 30 days to accept the position or provide reasons for her refusal. It
further notified her that the position remained open and that a partially disabled employee who
refused suitable work was not entitled to compensation. Appellant’s counsel provided a
response, but it was not received within the allotted 30-day period. The response was received
on November 26, 2012. In its November 26, 2012 decision, OWCP specifically found that no
response was received and did not discuss this evidence or address whether it was sufficient to
render the offered position unsuitable. When OWCP receives relevant evidence prior to its
decision, it must consider the evidence.19
Because appellant did not submit a timely response to OWCP’s October 23, 2012 letter,
appellant is not entitled to further notice prior to the termination of benefits under section
8106(c).20 However, as noted, OWCP had an obligation to consider the evidence received on

17

See also supra note 7.

18

Id.

19

See Kenneth R. Love, supra note 16. See for example, Shelia Jordan-Glover, Docket No. 04-341 (issued
November 12, 2004). Jordan-Glover, in response to OWCP’s 15-day letter, appellant submitted a report from her
physician advising that she could not be gainfully employed. OWCP did not discuss the evidence received or
address whether it was sufficient to render the offered position unsuitable. The Board found that OWCP did not
meet its burden of proof to terminate appellant’s compensation as OWCP had not addressed all of the relevant
evidence of record.
20

See Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992), if a claimant submits
evidence or reasons or both, within the time period so provided, then OWCP must evaluate the new evidence or
reasons submitted and inform the claimant of its decision as to whether the evidence or reasons submitted were
accepted or rejected and provide an additional period in which to accept the position. In this case, appellant failed to
submit evidence or reasons for not accepting the position within the 30-day period. See also Sheila J. Antley,
Docket No. 94-2564 (issued December 11, 1996) (where no response was provided to OWCP after being advised of
the ramifications of her refusal of the suitable work); Tronna Nichelson, Docket No. 01-1264 (issued April 16,
2002) (“Because appellant submitted additional evidence within the 30-day period provided by the Office for
responding to the suitability determination, she was entitled to have her evidence evaluated to determine whether or
not she provided acceptable reasons for refusing the offer of suitable work. Thereafter, she was entitled to an
additional 15 days to accept the offered job”); Thomas R. Mulvihill, Docket No. 99-2588 (issued August 1, 2001)
(where appellant failed to timely provide a response to the 30-day suitability termination letter); or Melvin James, 55
ECAB 406 (2004) (where failure to submit reasons within 30 days did not afford appellant an additional 15-day
notice).

6

November 26, 2012.21 As OWCP did not address this evidence submitted by appellant at the
time of the suitable work termination, the Board finds that OWCP did not comply with Board
precedent. Consequently, OWCP committed error in its invocation of section 8106(c) and
improperly terminated appellant’s compensation effective November 26, 2012 because she
refused suitable work.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation effective
November 26, 2012.
ORDER
IT IS HEREBY ORDERED THAT the January 15, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 19, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

21

The Board has also held that it is necessary that OWCP review all evidence submitted by a claimant and
received by OWCP prior to issuance of its final decision and noted that this principle applies with equal force when
evidence is received by OWCP the same day a final decision is issued. Linda Johnson, 45 ECAB 439, 440 (1994).

7