United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Marysville, WA, Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-502
Issued: January 16, 2013

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 January 10, 2012 appellant, through her attorney, filed a timely appeal from a
November 10, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which affirmed an April 15, 2011 decision finding that she refused suitable work. 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 OWCP properly terminated appellant’s compensation effective
April 15, 2011 on the grounds that she refused suitable work.
FACTUAL HISTORY
On June 26, 2007 appellant, then a 47-year-old rural carrier, injured her left arm after she
was involved in a motor vehicle accident with a bicyclist. OWCP accepted abrasion of the left
shoulder and arm and expanded her claim to include adjustment disorder with depressed mood

and post-traumatic stress disorder. Appellant stopped work on June 26, 2007 and was placed on
the periodic rolls and received appropriate compensation benefits.1
Appellant was treated by Dr. George W. Vasil, a Board-certified family practitioner, from
July 6, 2007 to November 30, 2010, for stress after her work-related motor vehicle accident.
Dr. Vasil diagnosed stress reaction, depression and insomnia. On September 17, 2010 he
advised that appellant was ready to return to work but, in reports dated November 19 and 30,
2010, he noted that she had increasing stress and was not ready to return to work. Appellant was
treated by Dr. John L. Shelton, a licensed psychologist, from February 17 to November 23, 2010,
for adjustment disorder, post-traumatic stress disorder and anxiety disorder that developed after
her work injury. In addition to anxiety, she was clinically depressed and had trouble driving.
Dr. Shelton noted that appellant was angry at her employing establishment for not caring about
her or the injured cyclist and this served as a major barrier to returning to work. He diagnosed
adjustment disorder, post-traumatic stress disorder, anxiety disorder, obesity and health and work
concerns. Dr. Shelton hoped to return appellant to work in some capacity.
On December 1, 2010 appellant requested that the employing establishment send her a
job offer and refer her for a medical examination.
On December 1, 2010 the employing establishment offered appellant a limited-duty
position as a rural carrier, four hours per day, with a tour of duty from 1:00 p.m. to 5:00 p.m.
Monday through Friday and 11:15 a.m. to 3:15 p.m. on Saturday at the Marysville location. The
job was effective December 13, 2010. The duties of the job included working in the automated
postal center, answering questions and assisting customers for three hours per day, stocking
inventory in the lobby and carrier supplies for .25 hours per day, resolving customer inquiries or
complaints for .5 hours a day and filing certified/second notices for .25 hours a day. Appellant
accepted the job on December 9, 2010 and returned to work but noted that this was against the
recommendation of Drs. Shelton and Vasil. She worked four hours per day as a modified rural
carrier and stopped work on December 22, 2010 on the advice of her psychiatrist.
In reports dated December 1 and 8, 2010, Dr. Shelton recommended that appellant begin
psychiatric medication but noted difficulty in finding a physician that would accept a workers’
compensation case. On December 15 and 22, 2010 he noted that she was treated by Dr. Jon
Berner, a Board-certified psychiatrist, who took appellant off work for six months to implement
a medication regimen to control her anxiety. In a December 9, 2010 report, Dr. Vasil noted her
complaints of panic attacks and diagnosed adjustment disorder with depressed mood and
insomnia.
The employing establishment asked that appellant provide current medical restrictions.
Appellant submitted reports from Dr. Shelton dated December 29, 2010 to February 9, 2011,
who noted her fear of returning to work. On January 19, 2011 Dr. Shelton advised that she was
able to drive to physician’s appointments and that her driving was not at the level of being a
disability. In a January 19, 2011 duty status report, he noted findings of anxiety and depression.
Dr. Shelton diagnosed adjustment disorder and post-traumatic stress disorder and noted that
1

Appellant filed a separate occupational disease claim in 2002, which was accepted for carpal tunnel syndrome,
claim number xxxxxx830.

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appellant was not able to work. On February 9, 2011 he noted that she reported being able to
work full time, without restrictions, performing her job as a rural carrier at Granite Falls location.
In a January 10, 2011 duty status report, Dr. Vasil noted diagnoses and indicated that appellant
was unable to resume work because she could not drive over 15 minutes a day and had personal
interaction problems. In a January 10, 2011 report, he diagnosed adjustment disorder with
depressed mood and post-traumatic stress disorder. Dr. Vasil noted that appellant returned to
work for less than two weeks and was taken off work by Dr. Berner.
OWCP referred appellant to Dr. Douglas Robinson, a Board-certified psychiatrist, for a
second opinion. In a February 8, 2011 report, Dr. Robinson noted that her affect was
spontaneous, with no evidence of depressed mood or irritability, her thought content was logical
and goal directed and speech had normal volume. Appellant reported nightmares but with a
rehearsed or practiced quality and her emotional concern appeared to be more about employment
difficulties. diagnosed: Axis 1: panic disorder with agoraphobia and adjustment disorder with
depressed mood; Axis 2: dependent personality disorder with some elements of borderline
personality disorder; Axis 3: diabetes and obesity; and Axis 4: psychological stressors, possible
childhood abuse and abusive relationship with husband. He advised that appellant had a pattern
of distorting or misrepresenting circumstances to suit various ends. Dr. Robinson opined that the
majority of appellant’s avoidance of driving was unrelated to the accident but was related to her
panic disorder and agoraphobia. He noted no objective findings of post-traumatic stress disorder
due to the accident and no evidence of adjustment disorder with depressed mood. Dr. Robinson
opposed taking appellant off work for six months as proposed by Dr. Berner because there was
no way for appellant to avoid the initial shock of going to work every day. He noted that
appellant had a dependent personality, harbored grievances and synthesized perceptions of unfair
treatment which contributed to her motivation to remain off work. Dr. Robinson opined that she
was capable of driving and returning to her original job full time and suggested a graduated
program to reintroduce her to the workforce for four hours per day. In a work capacity
evaluation dated February 8, 2011, he noted that appellant could return to her regular job with
graduated hours beginning with four hours per day and increasing to eight hours per day.
Appellant submitted a January 14, 2011 report from Dr. Shelton who diagnosed
post-traumatic stress disorder and advised she continued to have work-related residuals. In a
February 16, 2011 report, Dr. Shelton noted that she reported being able to work full time,
without restrictions, performing her rural carrier job but only at the Granite Falls location.
In a February 25, 2011 letter, OWCP advised appellant that the December 1, 2010 job
offer was suitable work. It noted that she initially accepted the job but stopped work on
December 22, 2010. Appellant was informed that she had 30 days to accept the job or provide
reasons for refusing it; otherwise, she risked termination of her compensation.
Appellant submitted an employing establishment form dated January 10, 2011 prepared
by Dr. Vasil, who diagnosed adjustment disorder with depressed mood and noted her residuals
had not resolved. Dr. Vasil was unsure of the expected recovery date. In duty status report’s
dated January 14 and March 21, 2011, he noted clinical findings of anxiety and depression and
diagnosed adjustment disorder and post-traumatic stress disorder. Dr. Vasil noted that appellant
could not drive over 15 minutes per day and currently had difficulty with personal interactions.
In a March 21, 2011 report, he noted diagnoses and opined that she was totally disabled. In a

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January 12, 2011 form report Dr. Berner diagnosed post-traumatic stress disorder, noted that
appellant had residuals of her condition and stated that the recovery time was unknown. In a
January 12, 2011 duty status report he noted clinical findings of anxiety and diagnosed
post-traumatic stress disorder. Dr. Berner advised that appellant was disabled. On March 9,
2011 he indicated that she presented distraught and psychomotor agitated after driving to his
office. Dr. Berner diagnosed post-traumatic stress disorder, rule out partial penetrance of son’s
schizophrenia. He opined that appellant was officially treatment refractory for complaints of
anxiety having failed a serotonin agent and discharged her from his care. In reports dated
February 23 to March 16, 2011, Dr. Shelton noted her psychiatrist, Dr. Berner, released her from
his care. He encouraged appellant to return to work.
In a March 24, 2011 letter, appellant asserted based on the opinion of Dr. Berner she was
advised not to return to the current job offer because of her psychiatric condition.
On March 29, 2011 OWCP advised appellant the position of a limited-duty rural carrier
suitable work. It noted that it considered the reasons given by appellant for refusing the position
and found then to be unacceptable. OWCP afforded appellant 15 additional days to accept the
job offer.
Appellant submitted a March 21, 2011 report from Dr. Vasil who diagnosed posttraumatic stress disorder, dysthymia, adjustment disorder with depressed mood and anxiety.
Dr. Vasil recommended medication management by a psychiatrist and noted her symptoms were
severe enough to preclude return to work. Also submitted was a March 23, 2011 letter from
Dr. Shelton to OWCP who confirmed that Dr. Berner took appellant off work. Other reports
from Dr. Shelton dated March 23 and 30, 2011 diagnosed anxiety and post-traumatic stress
disorder. He noted Dr. Berner utilized several medications to treat appellant’s condition without
success and discharged her from his care.
In a April 15, 20211 decision, OWCP terminated appellant’s monetary compensation,
effective the same day, on the grounds that she refused an offer of suitable work.
Appellant requested an oral hearing which was held on August 10, 2011. She submitted
a February 9, 2011 report form Dr. Berner who noted that she had an avoidant pattern towards
driving associated with her post-traumatic stress disorder. Dr. Berner diagnosed post-traumatic
stress disorder, refractory to standard clinical agents. He advised medication management was
unsuccessful and recommended extensive psychological and rehabilitative intervention. In a
March 21, 2011 duty status report, Dr. Vasil diagnosed adjustment disorder and post-traumatic
stress disorder and advised that appellant could not work. In an August 20, 2011 report, he noted
diagnoses and advised that appellant could not be released to work as the employing
establishment had not offered work that she could perform. In reports dated March 16 to
October 28, 2011, Dr. Vasil diagnosed situational anxiety, adjustment disorder with depressed
mood and anxiety. Reports from Dr. Shelton dated April 6 to October 31, 2011, noted that
appellant had panic attacks over the actions of the employing establishment and claimed her
anxiety prevented her from driving. In his September 27, 2011 report, he stated that he was
unsure if she was disabled.
In a November 10, 2011 decision, OWCP affirmed the April 15, 2011 decision.

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LEGAL PRECEDENT
Section 8106(c) of FECA provides in pertinent part, a partially disabled employee who
refuses or neglects to work after suitable work is offered to, procured by or secured for him is not
entitled to compensation.2 It is OWCP’s burden to terminate compensation under section
8106(c) for refusing to accept suitable work or neglecting to perform suitable work.3 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.4
The Board has recognized that section 8106(c) serves as a penalty provision as it may bar
an employee’s entitlement to future compensation and, for this reason, will be narrowly
construed.5 To establish that a claimant has refused or abandoned suitable work, OWCP must
substantiate that the position offered was consistent with the employee’s physical limitations and
that the reasons offered for stopping work were unjustified.6 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 the medical evidence of record.7
Additionally, it is well established that OWCP must consider preexisting and subsequently
acquired conditions in the evaluation of suitability of an offered position.8
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.9 Section
10.516 of the regulations provide that OWCP shall advise the employee that it has found the
offered work to be suitable and afford the employee 30 days to accept the job or present any
reasons to counter OWCP’s finding of suitability. If the employee presents such reasons and
OWCP determines that the reasons are unacceptable, it will notify the employee of that
determination and that he or she has 15 days in which to accept the offered work without penalty.
At that point in time, OWCP’s notification need not state the reasons for finding that the
employee’s reasons are not acceptable.10

2

5 U.S.C. § 8106(c)(2).

3

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

4

20 C.F.R. § 10.517(a).

5

H. Adrian Osborne, 48 ECAB 556 (1997).

6

See Lizzie M. Greer, 49 ECAB 681 (1998).

7

See Marilyn D. Polk, 44 ECAB 673 (1993).

8

Richard P. Cortes, 56 ECAB 200 (2004); Gayle Harris, 52 ECAB 319, 321 (2001).

9

Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

10

20 C.F.R. § 10.516.

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ANALYSIS
OWCP accepted appellant’s condition for abrasion of the left shoulder and arm,
adjustment disorder with depressed mood and post-traumatic stress disorder. On December 1,
2010 the employing establishment offered her a limited-duty position as a rural carrier, effective
December 13 2010. Appellant accepted the job on December 9, 2010 but stopped work on
December 22, 2010 on the advice of her psychiatrist. OWCP terminated her monetary
compensation effective April 15, 2011, based on her refusal to return to the position. The Board
finds that OWCP established that the offered position of December 1, 2010 was suitable.
OWCP referred appellant to Dr. Robinson, for a second opinion. In his February 8, 2011
report, Dr. Robinson reviewed the record and a statement of accepted facts. He examined
appellant, noted findings and offered diagnoses that included panic disorder with agoraphobia
and adjustment disorder with depressed mood. Dr. Robinson advised that symptoms of panic
disorder with agoraphobia were mistaken for post-traumatic stress disorder and she had a pattern
of distorting or misrepresenting circumstances to suit various ends. He opined that the majority
of appellant’s avoidance of driving had nothing to do with the accident but was related to her
panic disorder and agoraphobia. Dr. Robinson noted no objective findings of post-traumatic
stress disorder due to the accident and no evidence of adjustment disorder with depressed mood.
He noted that appellant had a dependent personality, harbored grievances and synthesized
perceptions of unfair treatment which contributed to the motivation to not work. Dr. Robinson
believed that she was capable of returning to her usual job and suggested a graduated program to
reintroduce her to the workforce beginning at four hours per day. He further noted that appellant
was capable of driving. In a work capacity evaluation dated February 8, 2011, Dr. Robinson
noted that appellant was able to return to work eight hours per day, graduated, beginning with
four hours per day.
The Board finds that, under the circumstances of this case, the opinion of Dr. Robinson
represents the weight of the medical evidence and establishes that appellant could work in the
modified position that she stopped on December 22, 2010. Dr. Robinson reviewed the record
and examined her. He clearly found that appellant could return to work subject to the restrictions
set forth in his reports of February 8, 2011. The record reflects that the physical restrictions of
the modified position offered to appellant on December 1, 2010 conformed with the limitations
provided by Dr. Robinson. The Board finds that the physical requirements of the offered
position are consistent with the work restrictions set forth by Dr. Robinson and that the offered
position is medically suitable to appellant’s work restrictions.
Medical evidence submitted by appellant does not adequately show that she was unable
to perform the offered job. Dr. Vasil, a family practitioner, submitted various reports indicating
that she could not drive for more than 15 minutes or that she could not return to work. However,
he did not specifically explain the medical reasons why appellant could not perform the offered
position.11 Reports from Dr. Shelton, a clinical psychologist, also do not show that she was
unable to perform the offered position. Certain of his reports generally indicated that appellant
11

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

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could not work while others indicated that she could work or encouraged her to work. In
January 2011 duty status reports, Dr. Shelton indicated that she was not able to work but in his
January 19, 2011 treatment record, he advised that her fear of driving was not at the level of a
disability. In his October 5, 2011 report, he questioned if appellant was disabled. In none of his
reports did Dr. Shelton provide medical rationale to explain why she was unable to perform the
offered job. Other treatment records from Drs. Shelton and Vasil do not specifically explain how
appellant’s medical conditions prevented her return to work in the offered modified position at
the time she stopped work on December 22, 2010 or at any time prior to the termination of
benefits.
Appellant also submitted evidence from Dr. Berner, a psychiatrist. On January 12, 2011
Dr. Berner noted diagnoses and found that she was totally disabled. In February 9 and March 9,
2011 reports, he noted diagnoses and stated that appellant was treatment refractory for anxiety
and discharged her from care. In none of his reports did Dr. Berner address the suitability of the
offered position or explain how her medical conditions prevented her from returning to that
position. Therefore, appellant did not submit any medical evidence to show that the offered
position was not medically suitable.12
To properly terminate compensation under section 8106(c), OWCP must provide
appellant notice of its finding that an offered position is suitable and give her an opportunity to
accept or provide reasons for declining the position.13 It properly followed its procedural
requirements in this case. On February 25, 2011 OWCP advised appellant that the modified
position was suitable and allotted her 30 days to either accept or provide reasons for refusing the
position.14 On March 29, 2011 it advised her that it considered the reasons given by appellant
for refusing the position and found them to be unacceptable. OWCP afforded her 15 additional
days to accept the job offer. The Board finds that OWCP followed established procedures prior
to the termination of compensation pursuant to section 8106(c) of FECA.
Before OWCP and on appeal, appellant asserted that the suitability process was tainted
by bad faith on the part of OWCP in misrepresenting the opinion of the referral physician to her
psychologist Dr. Shelton; by “[physician] shopping” for a second opinion physician; that OWCP
made a retroactive finding of suitability in violation of FECA; and that OWCP did not consider
appellant’s work stoppage as a recurrence. The Board finds these arguments to be without merit.
The Board finds no evidence in the record to support that OWCP misrepresented medical
information provided to Dr. Shelton. Rather, the record reflects that Dr. Shelton coordinated
appellant’s physician’s Dr. Vasil and Dr. Berner and with OWCP with a goal of returning
appellant to work. The Board further finds that there was no evidence of “[physician] shopping.”
The record reflects that OWCP further developed appellant’s claim after she stopped work.
OWCP determined that additional medical development was necessary for a determination of
appellant’s ability to return to the workforce. The Board has held that OWCP has the discretion
to have a claimant submit to an examination by a physician designated or approved by OWCP
12

See Les Rich, 54 ECAB 290 (2003).

13

See Maggie L. Moore, supra note 9.

14

See Bruce Sanborn, 49 ECAB 176 (1997).

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after the injury and as frequently and at the times and places as may be reasonably required.15
The record contains no evidence showing that appellant’s referral to Dr. Robinson was
inappropriate.
With regard to appellant’s allegation that OWCP made an impermissible retroactive
finding of suitability, the Board finds this argument to be without merit. The employing
establishment offered her a part-time limited-duty position on December 1, 2010, which she
accepted and returned to work and stopped on December 22, 2010. OWCP then further
developed the evidence to determine if the position was suitable. After proper notices on
February 25 and March 29, 2011 in which appellant was advised that, the position remained
available, OWCP terminated her compensation for refusal of suitable work. Finally, appellant
asserts that OWCP failed to develop her work stoppage on December 22, 2010 as a recurrence of
disability in conformance with Mary A. Howard16 and OWCP’s procedures.17 The Board notes
that in Howard the Board reversed OWCP’s finding that she refused an offer of suitable work
based on a procedural defect by OWCP. In that case, OWCP failed to notify appellant of the
provisions of section 8106(c), specifically, she was not advised that her light-duty job was
considered “suitable” under section 8106(c), she was not advised of the consequences of
neglecting suitable work nor was she allowed an opportunity to respond to OWCP prior to
termination. The present case, is distinguished from Howard in that appellant was informed of
the provisions of section 8106(c), in both a 30-day letter on February 25, 2011 and a 15-day
letter on March 29, 2011 and provided with the opportunity to respond prior to having her
monetary benefits terminated. The Board further notes that OWCP properly followed its
procedures which provide that, in a case where no formal loss of wage-earning capacity decision
has been issued, OWCP’s claims examiner must inquire as to appellant’s reasons for ceasing
work and make a suitability determination. In this instance, OWCP followed the proper
procedures and made a suitability determination.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s disability
compensation under 5 U.S.C. § 8106(c)(2) for refusal of suitable employment.

15

William B. Webb, 56 ECAB 156 (2004).

16

45 ECAB 646 (1994).

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Capacity, Chapter 2.814.9(a) (December 1995).

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Determining Wage-Earning

ORDER
IT IS HEREBY ORDERED THAT the November 10, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 16, 2013
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Red Bank, NJ, Employer
__________________________________________

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

Docket No. 11-709
Issued: October 7, 2011

Case Submitted on the Record

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

JURISDICTION
On January 21, 2011 appellant’s counsel timely appealed the October 19, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed a prior
schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has greater than eight percent impairment of the left upper
extremity for which he received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, then a 49-year-old clerk, has an accepted claim for left carpal tunnel
syndrome, which arose on or about June 21, 2005.2 She underwent OWCP-approved left carpal
tunnel release on July 26, 2006. On March 31, 2008 appellant filed a claim for a schedule award
(Form CA-7). In support of her claim, she submitted an October 31, 2007 impairment rating
from Dr. David Weiss, a Board-certified orthopedic surgeon, who diagnoses included status post
left carpal tunnel release and chronic left lateral epicondylitis. Dr. Weiss found 23 percent
impairment of the left upper extremity due to sensory deficit involving the median nerve. He
applied the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (2001).
In May 2008, OWCP combined appellant’s left and right upper extremity claims. In a
letter dated June 20, 2008, it documented an earlier conversation with appellant’s counsel
wherein he agreed to obtain another report from Dr. Weiss that addressed appellant’s impairment
of both upper extremities. This was done in an attempt to avoid piecemeal litigation. OWCP
also preauthorized additional diagnostic studies electromyography and nerve conduction velocity
if Dr. Weiss deemed them necessary. For some unexplained reason, appellant’s counsel did not
submit another report from Dr. Weiss prior to May 1, 2009, when OWCP adopted the sixth
edition of the A.M.A., Guides (2008).
Dr. Weiss provided a supplemental report dated February 5, 2010, wherein he applied the
latest edition of the A.M.A., Guides (6th ed. 2008) and found eight percent impairment of the left
upper extremity. The overall rating included impairments for appellant’s left elbow (two
percent) and her left wrist (six percent).
On May 15, 2010 the district medical adviser (DMA) reviewed the record and concurred
with Dr. Weiss’ finding of eight percent impairment of the left upper extremity.
By decision dated June 28, 2010, OWCP granted a schedule award for eight percent
impairment of the left upper extremity. The award covered a period of 24.96 weeks, from
October 31, 2007 to April 22, 2008.
Counsel requested a review of the written record.3 In a decision dated October 19, 2010,
the Branch of Hearings and Review affirmed the June 28, 2010 schedule award.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.4 FECA,
2

Appellant has two other accepted claims for cervical and right upper extremity injuries that have been combined
with the current claim.
3

Counsel argued that OWCP should have applied the fifth edition of the A.M.A., Guides rather than the sixth
edition.
4

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

2

however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.5 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).6
ANALYSIS
OWCP based the June 28, 2010 schedule award on Dr. Weiss’ February 5, 2010
impairment rating under the sixth edition of the A.M.A., Guides (2008). The DMA concurred
with Dr. Weiss’ eight percent left upper extremity rating. Appellant’s counsel did not
specifically challenge the validity of Dr. Weiss’ latest rating, but instead argued that appellant
should have received a schedule award for 23 percent impairment under the fifth edition of the
A.M.A., Guides (2001) as Dr. Weiss initially calculated in October 2007.
Counsel accused OWCP of unreasonable delay in processing appellant’s claim for a
schedule award. He characterized the delay as a violation of appellant’s constitutional rights. It
appears that some of the responsibility for the prolonged adjudication of the claim rests with
counsel, who informed OWCP on June 20, 2008 that he would submit a new report from
Dr. Weiss that addressed both of appellant’s upper extremities.
Notwithstanding his role in prolonging this matter, counsel argued that OWCP’s delay in
issuing a decision constituted a denial of due process. He asserted that appellant has a property
right in a schedule award benefit under the fifth edition of the A.M.A., Guides, and that a
protected property interest cannot be deprived without due process. In support of this contention,
counsel cited Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge, 424 U.S.
319 (1976). However, these cases held only that a claimant who was in receipt of benefits -- in
Goldberg public assistance, and in Mathews Social Security benefits -- could not have those
benefits terminated without procedural due process.7 In this case, appellant is simply making a
claim for a schedule award. She is not in receipt of schedule award benefits nor is OWCP
attempting to terminate any benefits. Appellant has not established a vested right to a schedule
award under the fifth edition of the A.M.A., Guides nor has she identified any due process rights
that were purportedly infringed upon. The cases cited by counsel are inapplicable.

5

20 C.F.R. § 10.404.

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
7

In Mathews the court noted that the private interest that would be adversely affected by the erroneous
termination of benefits was likely to be less in a disabled worker than a welfare recipient, and due process would not
require an evidentiary hearing.

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In Harry D. Butler,8 the Board noted that Congress delegated authority to the Director
regarding the specific methods by which permanent impairment is to be rated. Pursuant to this
authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.9 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.10 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed.
As noted, both Dr. Weiss and the DMA applied the sixth edition of the A.M.A., Guides
(2008) and agreed that appellant had eight percent impairment of the left upper extremity due to
a combination of impairments involving the left wrist (six percent) and left elbow (two
percent).11 Counsel has not specifically challenged this finding, nor has he presented evidence
indicating a greater impairment under the sixth edition of the A.M.A., Guides (2008). The Board
finds that the above-noted reports from Dr. Weiss and the DMA conform to the A.M.A., Guides
(6th ed. 2008), and thus, represent the weight of the medical evidence regarding the extent of
appellant’s left upper extremity impairment. Appellant has not submitted any credible medical
evidence indicating she has greater than eight percent impairment of the left upper extremity.
CONCLUSION
Appellant has not established that she has greater than eight percent impairment of the
left upper extremity.

8

43 ECAB 859 (1992).

9

Id. at 866.

10

FECA Bulletin No. 09-03 (issued March 15, 2009). FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, supra note 3, Chapter 2.808.6(a) (January 2010).
11

See Table 15-4 and Table 15-23, A.M.A., Guides 399, 449.

4

ORDER
IT IS HEREBY ORDERED THAT the October 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Providence, RI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-2050
Issued: July 11, 2012

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 September 6, 2011 appellant filed a timely appeal from a March 8, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that modification of a July 9, 1999 wageearning capacity determination was warranted.
FACTUAL HISTORY
OWCP accepted that appellant sustained a lumbosacral sprain in the performance of duty
on June 15, 1984 when he lifted a heavy sack. Appellant returned to work intermittently and as
of April 1985 was working in a full-time modified mail handler position. In a June 2, 1999
1

5 U.S.C. § 8101 et seq.

letter, the employing establishment noted the duties included traying and facing mail, hand
cancelling letters, verifying postage and other duties.
By decision dated July 9, 1999, OWCP determined that appellant’s actual earnings fairly
and reasonably represented his wage-earning capacity. It found that he had no loss of wageearning capacity as his actual earnings of $842.92 per week equaled the current earnings in his
date-of-injury position.
On June 10, 2009 appellant was advised that, pursuant to the National Reassessment
Program (NRP), there was no light-duty work available within his restrictions. In a duty status
report (Form CA-17) dated July 20, 2009, a physician whose signature is illegible, reported on
his continuing work restrictions. The record indicates that on August 13, 2009 appellant was
offered and accepted a modified mail handler position at four hours a day. Appellant continued
to work four hours day. On March 19, 2010 the employing establishment offered him a full-time
modified mail handler position. In a letter dated April 1, 2010, the employing establishment
indicated the position was effective April 10, 2010 and appellant had accepted the position.
On April 16, 2010 appellant filed a recurrence of disability (Form CA-2a), claiming
compensation as of June 10, 2009. In a May 20, 2010 letter, he stated that his light-duty job had
been withdrawn on June 10, 2009 and felt the wage-earning capacity determination should be
modified.
By decision dated June 10, 2010, OWCP denied modification of the July 9, 1999 wageearning capacity determination.
Appellant requested a hearing before an OWCP hearing representative, which was held
on November 30, 2010.
By decision dated March 8, 2011, the hearing representative affirmed the June 10, 2010
decision. He found there was no error in the original determination and appellant had not
established a material change in an employment-related condition.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.2 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.3

2

Sue A. Sedgwick, 45 ECAB 211 (1993).

3

Id.

2

ANALYSIS
In the present case, OWCP issued a July 9, 1999 wage-earning capacity decision based
on the modified mail handler position appellant had been performing since approximately 1985.
Appellant has argued the wage-earning capacity determination should be modified as the
position was withdrawn on June 10, 2009. Although appellant did not appear to argue that the
original determination was erroneous, the hearing representative considered the issue of whether
the light-duty job had been a makeshift position.4 In this regard there is no probative evidence
that the modified mail handler position was a makeshift position. The position had a title and job
description, did not involve overly strict physical limitations, had meaningful tasks and was not a
temporary position.5
With respect to the withdrawal of the full-time position on June 10, 2009, OWCP did not
acknowledge that the position was withdrawn pursuant to the NRP or make any relevant findings
on the issue. In this regard, there are specific guidelines for developing the issue of modification
of a wage-earning capacity determination when the job has been withdrawn pursuant to NRP.6
OWCP should review the file to determine whether there is a current medical report regarding
employment-related residuals. If there is no current medical evidence then OWCP should
request appellant to submit a narrative medical report as to the nature and extent of employmentrelated residuals. The employing establishment should also be requested to submit relevant
medical evidence in its possession. Such requests are “essential where employees may not have
been requested to provide recent medical evidence because they have a zero LWEC [loss of
wage-earning capacity] rating.…”7
In this case, the hearing representative did not discuss the medical evidence and stated
that appellant did not allege a material change in his condition. Since OWCP had found that
appellant had no loss of wage-earning capacity, it should have requested a narrative medical
report addressing the nature and extent of employment-related residuals. The modification issue
may then properly be considered based on the relevant medical evidence. The case will be
remanded to OWCP to properly analyze the modification issue presented in accord with FECA
Bulletin 09-05. After such further development as OWCP deems necessary, it should issue an
appropriate decision. In view of the Board’s findings, the issue of subpoena of witnesses will not
be addressed.
CONCLUSION
The Board finds that the case is not in posture for decision and will be remanded to
OWCP for further development.

4

A position that is makeshift in nature is not appropriate for a wage-earning capacity determination. See
Selden H. Swartz, 55 ECAB 272 (2004).
5

Cf. A.J., Docket No. 10-619 (issued June 29, 2010).

6

FECA Bulletin No. 09-05 (issued August 18, 2009).

7

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 8, 2011 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: July 11, 2012
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

4


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

)
)
)
)
)
)
)
)

Appearances:
Kevin Card, for the appellant
Miriam D. Ozur, Esq., for the Director

Docket No. 14-1291
Issued: February 18, 2015

Oral Argument January 28, 2015

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 15, 2014 appellant, through her representative, filed a timely appeal from a
December 4, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Since more than 180 days have elapsed from the last merit decision of December 6,
2012 and the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board only has jurisdiction over the nonmerit
decision.
ISSUES
The issues are: (1) whether OWCP properly refused to reopen appellant’s case for
further review of the merits of its February 1, 2012 decision on the grounds that the
reconsideration request was untimely filed and did not demonstrate clear evidence of error; and
(2) whether it properly refused to reopen her case for further review of the merits of its
December 6, 2012 decision, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal, appellant’s representative contends that appellant has submitted medical
evidence sufficient to require further review of the case on the merits.
FACTUAL HISTORY
On December 15, 2010 appellant, then a 55-year-old letter carrier, filed an occupational
disease claim alleging that she had problems with her low back and right knee due to repetitive
work at the employing establishment. She specifically noted that she sustained a cruciate
ligament tear, tear of the median meniscus of the right knee, and lumbar disc herniations. On
March 18, 2011 OWCP accepted appellant’s claim for the following conditions: old disruption
of right anterior cruciate ligament; tear of median meniscus of right knee; sprain of medial
collateral ligament of the right knee; localized primary osteoarthritis of the lower right leg;
displacement of lumbar intervertebral disc without myelopathy; acquired spondylolisthesis; and
degeneration of lumbar or lumbosacral intervertebral disc.
On July 26, 2011 appellant filed a claim for compensation commencing July 6, 2011. On
October 31, 2011 she underwent a right total knee arthroplasty. On November 4, 2011 appellant
underwent a right total knee replacement. OWCP paid wage-loss compensation commencing
October 31, 2011.
On June 29, 2010 appellant began treatment from Dr. Edward Mittleman, a family
practitioner, and his associates, with regard to her employment injuries. In a September 28, 2011
report, Dr. Mittleman noted that, effective July 5, 2011, his associate, Dr. Serge Obukhoff, a
Board-certified neurosurgeon, placed appellant on temporary total disability due to the severity
of her injury, which included diminished sensation from Achilles tendons bilaterally. He also
noted that reflexes were reduced to zero as well as diminished sensation on the left side in L5-S1
distribution. Dr. Mittleman noted that Dr. Obukhoff placed appellant on temporary total
disability specifically due to the danger of her falling. He noted that appellant was further placed
on temporary total disability by this office on August 16, 2011 and continued as of
September 15, 2011. Dr. Mittleman indicated that he enclosed a copy of Dr. Obukhoff’s report.2
By decision dated October 13, 2011, OWCP denied appellant’s claim for disability
compensation for the period July 16 through September 23, 2011. By decision dated February 1,
2012, it denied modification of the October 13, 2011 decision.
On September 5, 2012 appellant requested reconsideration of OWCP’s February 1, 2012
decision. At this time, she submitted Dr. Obukhoff’s July 8, 2011 report, the report that was
previously referenced by Dr. Mittleman. As properly noted by Dr. Mittleman, Dr. Obukhoff
stated that appellant was unable to work because of severe back pain syndrome and danger to
herself of falling. He listed factors of disability as: diminished sensation from Achilles tendons
2

The Board notes that the record does not include a July 5, 2011 report by Dr. Obukhoff and that no report by
Dr. Obukhoff was submitted with Dr. Mittleman’s September 28, 2011 report. Although OWCP refers to
Dr. Obukhoff’s July 8, 2011 report in the October 13, 2011 decision, the report does not appear in the record as of
the date of that decision. Dr. Obukhoff’s July 8, 2011 report, which has findings consistent with Dr. Mittleman’s
September 28, 2011 report and OWCP’s October 13, 2011 decision, was first received into the record on
September 11, 2012.

2

bilaterally with reflexes reduced to zero; diminished sensation on the left side in L5-S1
distribution; and a magnetic resonance imaging of the lumbar spine that is consistent with L4-5
lumbar canal stenosis, spondylolisthesis grade 1, facet arthropathy, and foraminal stenosis.
Dr. Obukhoff noted that appellant cannot walk without a cane and cannot extend the lumbosacral
region due to severe pain syndrome. He listed diagnoses of: (1) lumbar multiple disc
herniations; (2) anterolisthesis L4 on L5 with pseudodisc herniation; and (3) lumbar disc
desiccation.
On October 10, 2012 appellant filed another request for reconsideration. In support of
this request, she filed an October 10, 2012 report wherein Dr. Hosea Brown, III, a Boardcertified internist and an associate of Dr. Mittleman, indicated that appellant was ambulating
with a cane at the time Dr. Obukhoff took her off work due to objective findings of decreased
diminished sensation from the Achilles tendons bilaterally. Dr. Brown noted that appellant’s
ability to stand, walk, and drive were all impaired due to diminished sensation and reflexes in the
lower extremities. He noted that it was incorrect to state that she had been taken off of work for
pain. Dr. Brown opined that diminished sensation in the lower extremities coupled with
appellant’s severe degenerative arthritis of the right knee rendered her temporarily totally
disabled for the period July 16 through September 15, 2011.
By decision dated December 6, 2012, OWCP determined that the evidence was
insufficient to modify its prior decision.
On November 14, 2013 appellant requested reconsideration. In support of her
reconsideration request, she submitted a November 4, 2013 report by Dr. Mittleman, entitled
“Reconsideration of Denial of Compensation Benefits.” Dr. Mittleman stated that there appeared
to be a gross misunderstanding of the findings by Dr. Obukhoff in his July 8, 2011 examination
concerning the Achilles tendons. He noted that, if the Achilles reflex test response is not normal,
it is an indication that there is pathology in the S1 spinal nerve. Dr. Mittleman explained that, on
his examination, Dr. Obukhoff noted a deep diminished sensation of appellant’s Achilles tendons
bilaterally (the Achilles tendons are innervated by the S1 spinal nerve). He noted that the
Achilles tendon was intact, but the innervation from the spinal nerve is causing interference with
the ability for the Achilles tendon to flex properly. Accordingly, it is the pathology within the
lumbar axial spinal nerve system that is pathological not the Achilles tendons. Dr. Mittleman
discussed the physical findings noted by Dr. Obukhoff, and opined that considering the severity
of appellant’s physical findings, Dr. Obukhoff found that she should continue working prior to
her surgery, she was in danger of falling thereby producing additional pathology as well as
experiencing severe back pain syndrome.
In a decision dated December 4, 2013, OWCP determined that appellant was not entitled
to merit review of the February 1, 2012 decision because her request for reconsideration was
untimely filed and did not show clear evidence of error. It further determined that she was not
entitled to merit review of the December 6, 2012 decision because she had not shown that a merit
review was required under the standard for timely applications for review.

3

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that 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 and
pertinent new evidence not previously considered by OWCP.4 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.5 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.6
ANALYSIS
OWCP denied appellant’s claim for compensation for the period July 16 through
September 23, 2011 and continuing. The last merit decision to review this issue was OWCP’s
December 6, 2012 decision. On December 4, 2013 OWCP issued a nonmerit decision wherein it
denied appellant’s request for reconsideration.7 In this appeal, the Board’s jurisdiction is
restricted to reviewing OWCP’s decision denying reconsideration issued on December 4, 2013.
The Board does not have jurisdiction over the merits of the claim.8
In support of her request for reconsideration, appellant submitted a November 4, 2013
report by Dr. Mittleman, wherein he provided further discussion of her claim, and in particular,
provided further explanation with regard to her Achilles tendon and their impact on her disability
prior to her surgery. Dr. Mittleman stated in his November 4, 2013 report that Dr. Obukhoff
noted a deep diminished sensation of appellant’s Achilles tendons bilaterally and noted that
while the Achilles tendon was intact, the innervation from the spinal nerve was causing
interference with the ability for the Achilles tendon to flex properly, and that accordingly the
pathology within the lumbar axial spinal nerve system was pathological and not the Achilles
tendons. He discussed the physical findings noted by Dr. Obukhoff and noted that Dr. Obukhoff
found that, should appellant continue working prior to her surgery, she was in danger of falling
3

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

In its December 4, 2013 decision, OWCP indicated that appellant was not entitled to a merit review of the
February 1, 2012 decision because her request was filed more than one year after the last merit decision and the
record did not show that she had not established clear evidence of error. Appellant’s request for reconsideration of
the February 1, 2012 merit decision was dated September 5, 2012, and was accordingly timely filed. However,
OWCP reviewed all the evidence submitted subsequent to the December 6, 2012 decision in its December 4, 2013
decision, so the discussion of clear evidence of error in the December 4, 2013 decision is harmless error.
8

20 C.F.R. § 501.3(e).

4

and thereby producing additional pathology as well as experiencing severe back pain syndrome.
Dr. Brown also previously discussed Dr. Obukhoff’s July 8, 2011 report in his October 10, 2012
report and noted that Dr. Obukhoff took appellant off work due to objective findings of
diminished sensation from the Achilles tendons bilaterally. Dr. Mittelman’s report is repetitive
of prior reports in the record, including Dr. Obukhoff’s July 8, 2011 report, Dr. Mittleman’s
September 28, 2011 report, and Dr. Brown’s October 10, 2012 report.
He discusses
Dr. Obukhoff’s July 8, 2011 report extensively in both his September 28, 2011 report and in his
more recent report dated November 4, 2013. Dr. Obukhoff clearly noted diminished sensation
from Achilles tendons in his September 28, 2011 report, and although Dr. Mittleman may
elaborate on his prior explanation in his November 4, 2013 report when he notes that the
innervation from the spinal nerve was causing interference with the ability of the Achilles tendon
to properly flex, his explanation does not constitute pertinent new and relevant evidence as it
does not provide any pertinent new medical information. The Board has found that evidence
which is repetitive, duplicative, or cumulative in nature is insufficient to warrant reopening a
claim for merit review.9
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, has not advanced a relevant legal argument not previously
considered by OWCP, and has not submitted relevant and pertinent new evidence not previously
considered by OWCP. Accordingly, the Board finds that she did not meet any of the necessary
requirements and is not entitled to further merit review.10
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

9

J.B., Docket No. 14-1164 (issued November 20, 2014); Denis M. Dupor, 51 ECAB 482 (2000).

10

See L.H., 59 ECAB 253 (2007).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 4, 2013 is affirmed.
Issued: February 18, 2015
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Michael E. Woods, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-648
Issued: July 16, 2014

Case Submitted on the Record

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

JURISDICTION
On January 29, 2014 appellant, through his attorney, filed a timely appeal from a
January 7, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP)
terminating his benefits. 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 claim.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective June 3, 2012.
On appeal appellant, through counsel, argued that the evidence did not support that the
impartial medical examiner was properly selected.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 27, 2008 appellant, then a 44-year-old expediter/clerk, injured his back, legs
and left arm when a container full of mail fell off a ramp and struck him. On June 2, 2008
OWCP accepted his claim for sprain of the back, thoracic region; sprain of the back, lumbar
region; and contusion of the left knee. It paid compensation benefits.
In a report dated December 22, 2010, Dr. Mike Shah, an attending Board-certified
internist, diagnosed sprain of the thoracic region, sprain of the lumbar region and contusion of
the left knee. In a February 16, 2011 impairment rating report, he discussed appellant’s residuals
from his employment injury, and indicated that appellant had an 11 percent left lower extremity
impairment for the L5 nerve combined with a 6 percent impairment of the right lower extremity
for the S1 nerve, which equaled a 16 percent lower extremity impairment. OWCP referred
appellant to Dr. Thomas Rooney, a Board-certified orthopedic surgeon, for a second opinion. In
a December 21, 2011 opinion, Dr. Rooney indicated that there was no remaining disability from
the accepted work injury. He opined that while appellant possibly had a cervical, left trapezius
and lumbar sprain at the time of his employment injury and a contusion abrasion of the knee,
these healed within two months.
To resolve the conflict in opinion between Dr. Shah and Dr. Rooney with regard to
continuing residuals, on January 17, 2012 OWCP referred appellant to Dr. Robert P.
Shackleford, a Board-certified orthopedic surgeon, for an impartial medical examination. The
record contains a copy of the ME023 Appointment Schedule Notification indicating that
appellant was scheduled to see Dr. Shackleford on February 9, 2012. In a February 9, 2012
opinion, Dr. Shackleford indicated that a lumbar strain is a self-limiting phenomenon lasting at
most six weeks. He stated that the current symptomatology was in excess of a simple strain and
not related to the lumbar strain incurred on March 27, 2008. Dr. Shackleford also noted that the
contusion of the knee on March 27, 2008 was not the cause of appellant’s current knee
symptoms. He concluded that all objective findings are not related to those conditions accepted
in this claim. Dr. Shackleford concluded that the lumbar sprain should have resolved, the
thoracic stain should have resolved and the left knee contusion should have resolved. He noted
that appellant was not disabled from work.
On April 20, 2012 OWCP proposed termination of appellant’s medical and wage-loss
compensation benefits. It allotted him 30 days to submit additional evidence.
On May 23, 2012 OWCP terminated appellant’s medical and wage-loss compensation
effective June 3, 2012.
On June 3, 2012 appellant requested an oral hearing before an OWCP hearing
representative.
By decision dated December 5, 2012, an OWCP hearing representative affirmed the
May 23, 2012 decision terminating compensation benefits.

2

By letters dated March 18 and September 5, 2013, appellant’s representative requested
documentation from OWCP assuring that Dr. Shackleford was appointed in a fair and unbiased
manner.
On October 12, 2013 appellant requested reconsideration. Appellant, through counsel,
argued that the record did not establish that the impartial medical examiner was selected in a fair
and impartial manner.
By decision dated January 7, 2014, OWCP reviewed the case on the merits but denied
modification.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.3
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.4 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which requires further medical treatment.5
Section 8123(a) of FECA provides in pertinent part: 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.6 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.7
Congress did not address the manner by which an impartial medical referee is to be
selected.8 Under FECA Procedure Manual, the Director of OWCP has exercised discretion to
2

Bernadine P. Taylor, 54 ECAB 342 (2003).

3

Id.

4

Roger G. Payne, 55 ECAB 535 (2004).

5

Pamela K. Guesford, 53 ECAB 726 (2002).

6

5 U.S.C. § 8123(a).

7

L.S., Docket No. 12-139 (issued June 6, 2012); see also Jack R. Smith, 41 ECAB 691, 701 (1990); James P.
Roberts, 41 ECAB 1010, 1021 (1980).
8

J.S., Docket No. 12-1343 (issued April 22, 2013).

3

implement practices pertaining to the selection of the impartial medical referee. Unlike second
opinion physicians, the selection of referee physicians is made from a strict rotational system.9
OWCP will select a physician who is qualified in the appropriate medical specialty and who has
no prior connection with the case.10
In turn, the Director has delegated authority to each district Office for selection of the
referee physician by use of the Medical Management Application (MMA) within iFECS.11 This
application contains the names of physicians who are Board-certified in over 30 medical
specialties for use as referees within appropriate geographical areas.12 The MMA in iFECS
replaces the prior PDS method of appointment.13 It provides for a rotation among physicians
from the American Board of Medical Specialties, including the medical boards of the American
Medical Association and those physicians Board-certified with the American Osteopathic
Association.14
Selection of the referee physician is made through use of the application by a medical
scheduler. The claims examiner may not dictate the physician to serve as the referee examiner.15
The medical scheduler imputes the claim number into the application, from which the claimant’s
home zip code is loaded.16 The scheduler chooses the type of examination to be performed
(second opinion or impartial referee) and the applicable medical specialty. The next physician in
the roster appears on the screen and remains until an appointment is scheduled or the physician is
bypassed.17 If the physician agrees to the appointment, the date and time are entered into the
application. Upon entry of the appointment information, the application prompts the medical
scheduler to prepare a Form ME023 appointment notification report for imaging into the case
file.18 Once an appointment with a medical referee is scheduled the claimant and any authorized
representative is to be notified.19

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

10

Id. at Chapter 3.500.4(b)(1).

11

Id. at Chapter 3.500.4(b)(6).

12

Id. at Chapter 3.500.4(b)(6)(a).

13

Id. at Chapter 3.500.5.

14

Id. at Chapter 3.500.5(a).

15

Id. at Chapter 3.500.5(b).

16

Id. at Chapter 3.500.5(c).

17

Id. Upon entry of a bypass code, the MMA will present the next physician based on specialty and zip code.

18

Id. at Chapter 3.500.5(g).

19

Id. at Chapter 3.500.4(d).

4

ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits. Due to a conflict between Dr. Shah, appellant’s
treating physician, and Dr. Rooney, the second opinion physician, OWCP referred appellant to
Dr. Shackleford for an impartial medical examination. OWCP has not established that
Dr. Shackleford was properly selected as it has not met its affirmative obligation to establish that
it followed its selection procedures.
Appellant’s counsel questioned OWCP regarding the protocol utilized to select
Dr. Shackleford as the impartial medical specialist. The record contains a printout (bearing the
hearing iFECS Report: ME023 -- Appointment Schedule Notification) which noted that the
appointment with Dr. Shackleford was scheduled for February 9, 2012. While this evidence
suggests that Dr. Shackleford might have been selected from the MMA, the ME023 alone is
insufficient to substantiate proper selection of the impartial specialist under OWCP procedures.20
There are no other screenshots concerning the selection of Dr. Shackleford. The record does not
contain adequate documentation in selecting the impartial medical specialist.21
As the record lacks adequate documentation of the selection process in this case, the
Board will remand the case to OWCP for selection of another impartial medical specialist. After
such further development as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits.

20

E.S., Docket No. 10-644 (issued September 28, 2011).

21

See C.P., Docket No. 10-1247 (issued September 25, 2011), petition for recon. denied (issued May 15, 2012).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 7, 2014 is reversed.
Issued: July 16, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief 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
__________________________________________
C.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia PA, Employer
__________________________________________

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)

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

Docket No. 06-1445
Issued: May 1, 2007

Case Submitted on the Record

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

JURISDICTION
On June 7, 2006 appellant timely appealed an August 12, 2005 merit decision of the
Office of Workers’ Compensation Programs denying her claim for a recurrence of disability.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of these
claims.
ISSUE
The issue is whether appellant has established that she sustained a recurrence of disability
on and after April 26, 2004 causally related to her accepted employment injury of
November 13, 2001.

Appellant also appealed a January 30, 2006 Office decision in which an Office hearing representative denied her
traumatic injury claim arising under claim No. 03-2036690 for an April 26, 2004 injury. The Board assigned this
claim Docket No. 07-227.

FACTUAL HISTORY
The Office accepted that on November 13, 2001 appellant, then a 40-year-old clerk,
sustained a lumbar strain when she bent to pick up tubs of mail. She did not lose any time from
work following this injury, but was placed on restricted duty.2
On May 12, 2004 appellant claimed a recurrence of disability commencing
April 26, 2004. She attributed her back pain to work in the automation section on a bar code
machine which required pulling, bending, pushing, lifting and standing. Appellant and the
employing establishment indicated that she had returned to work without limitations after the
original injury. She stopped work on April 26, 2004 and did not return. Appellant elected
disability retirement benefits effective September 22, 2004.
In support of her recurrence claim, appellant submitted an undated medical report from
Dr. Joel H. Jaffe, a general practitioner, who advised that she was injured on the job in 1999
while engaged in repetitive activities of lifting, pushing and pulling mail. Dr. Jaffe indicated that
the magnetic resonance imaging (MRI) scans taken in 1999, 2002 and 2004 showed a protruding
disc and narrow spine and that appellant’s condition had worsened since 1999. He diagnosed a
lumbosacral bulging disc and opined that appellant was unable to fulfill her job duties due to
worsening pain.
In a June 25, 2004 letter, the Office advised appellant of the additional evidence needed
to establish her claim. The Office requested that she describe her work activities since returning
to work in 2001 and explain why she believed she was incapable of working on April 26, 2004.
Appellant was also requested to describe any changes to her work assignment. The Office noted
that Dr. Jaffe’s undated medical report was insufficient to establish her claim as he provided no
rationale or objective findings to support that her current condition was related to her
November 13, 2001 lumbar sprain. Appellant was advised to obtain a rationalized narrative
report, based on the history of the original injury which described the objective findings which
convinced him of the relationship between her ability to work and the accepted work conditions
and why she was unable to work.
In an undated statement, appellant indicated that she was on limited duty for 11 months
after she originally hurt her back. She stated that she was assigned two sit down jobs since her
November 2001 injury and that her last job consisted on lifting heavy trays, reaching and pulling
mail down and pushing containers of mail. Appellant denied any new injuries at work or
elsewhere.
In a July 19, 2004 medical report, Dr. Jaffe reported that the original injury occurred in
November 2001, when appellant was lifting a tub of mail and pulled her back and that her back
had been painful ever since. He advised that a May 7, 2004 MRI scan showed a bulging disc at
L4-5 with a mild right greater than left neural foraminal stenosis, disc space narrowing and
desiccation of the disc at the L4-5 level and hemangiomas within the L3 and T12 vertebral
bodies. After the original injury occurred in November 2001, appellant had some moderate
dextroscoliosis at the thoracolumbar junction which contributed to her discomfort. Dr. Jaffe
2

Appellant’s restrictions were noted as no bending, no reaching, no pulling and no lifting over 15 pounds.

2

opined that appellant was totally disabled from any work at the employing establishment due to
her pain and that such disability occurred because of her original work injury. He explained that
there had been a general deterioration of appellant’s condition and she was not able to do any
quality work on a sustained time basis because of the recurrent chronic pain. Dr. Jaffe further
stated that appellant’s back pain would continue to worsen as her condition deteriorated. He
opined that appellant’s underlying anxiety and stress syndrome and depression occurred
secondary to the job injury. A copy of the May 7, 2004 MRI scan was provided.3
By decision dated August 6, 2004, the Office denied appellant’s claim for recurrence of
disability on the grounds that causal relationship was not established.
On September 2, 2004 appellant requested an oral hearing which was held May 23, 2005.
She testified that, after her November 13, 2001 work injury, she was on limited duty for 11
months where someone would load the mail for her and she would reach to get the magazine and
key it. Appellant bid on several jobs after she was placed on limited duty. In 2003 she bid on a
sit down job in the computer room where no lifting or pulling of mail was involved. Appellant
stated that she worked sitting down keying and loading the mail on a ledge and would sometimes
sort the mail. After approximately one year, she bid on another sit down job at the small parcel
sorter machine. Appellant indicated that she worked in that position for approximately six or
seven months keying and pushing small parcels until her supervisor started to pick on her. In
January 2004, she bid the job on the bar code machine where she lifted trays weighing
approximately 50 to 60 pounds and pushed containers of mail in addition to working the bar code
machine. Appellant stated that she developed severe back pain after doing heavy lifting and
moving during her work shift which began April 25, 2004 and ended April 26, 2004.
In a May 26, 2005 report, Dr. Jaffe provided a history of appellant’s light-duty jobs
following the November 13, 2001 injury and indicated that appellant’s back problems were
partially resolved until 2004 when she was given a job involving heavy lifting. He indicated that
because of the job appellant had in 2004 all her “old problems came back again.” Dr. Jaffe
opined that appellant’s “April 2004 injury was not new, but is medically and causally directly
related to the injuries that she had in 2001. It [is] a reexacerbation of her old injuries.”
By decision dated August 12, 2005, an Office hearing representative affirmed the denial
of appellant’s recurrence claim.4 The Office hearing representative noted that Dr. Jaffe’s reports
supported a new injury claim as a result of appellant’s lifting during her work shift between
April 25 and 26, 2004.

3

Appellant also submitted medical evidence pertaining to a right middle digit contusion sustained on
April 28, 2004.
4

The hearing representative noted that, although appellant’s hearing testimony included a reference to a back
injury at work occurring in November 1999, she did not file a workers’ compensation claim for such an injury.

3

LEGAL PRECEDENT
As used in the Federal Employees’ Compensation Act,5 the term disability means
incapacity, because of an employment injury, to earn the wages that the employee was
receiving at the time of injury.6 A recurrence of disability is defined by Office regulations as
an inability to work, caused by a spontaneous change in a medical condition resulting from a
previous injury or illness without an intervening injury or new exposure to the work factors
that caused the original injury or illness.7 If the disability results from new exposure to work
factors, the legal chain of causation from the accepted injury is broken, and an appropriate
new claim should be filed.8
An individual who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable, and
probative evidence that the disability for which compensation is claimed is causally related to
the accepted injury.9 This burden includes the necessity of furnishing medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history,
concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.10 An award of compensation may not
be made on the basis of surmise, conjecture or speculation or on an appellant’s unsupported
belief of causal relation.11
While the medical opinion of a physician supporting causal relationship does not have
to reduce the cause or etiology of a disease or condition to an absolute certainty, neither can
such an opinion be speculative or equivocal. The opinion of a physician supporting causal
relationship must be one of reasonable medical certainty that the condition for which
compensation is claimed is causally related to federal employment and that such a
relationship must be supported with affirmative evidence, explained by medical rationale and
be based on a complete and accurate medical and factual background of the claimant.12
Medical conclusions unsupported by medical rationale are of diminished probative value and
are insufficient to establish causal relation.13

5

5 U.S.C. §§ 8101-8193.

6

Prince E. Wallace, 52 ECAB 357 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (May 1997); Donald T.
Pippin, 54 ECAB 631 (2003).
8

Id.

9

Dominic M. DeScala, 37 ECAB 369 (1986); Bobby Melton, 33 ECAB 1305 (1982).

10

See Nicolea Bruso, 33 ECAB 1138 (1982).

11

Ausberto Guzman, 25 ECAB 362 (1974).

12

Conard Hightower, 54 ECAB 796 (2003).

13

See Cecelia M. Corley, 56 ECAB ___ (Docket No. 05-324, issued August 16, 2005).

4

ANALYSIS
The Office accepted that appellant sustained a lumbar strain on November 13, 2001.
On May 12, 2004 appellant filed a claim for a recurrence of disability for back pain
commencing April 26, 2004 while working a bar code machine assignment. The record is
devoid of any evidence that appellant had any medical restrictions or limitations at that time.
Appellant attributed her back pain and symptoms to the accepted condition of November 13,
2001 and to the heavy lifting and pushing involved in her bar code machine assignment.
Appellant attributed her recurrence of disability to new work factors beginning
January 2004 when she accepted the job on the bar code machine which involved activities
such as heavy lifting and moving heavy containers of mail. Her assertions indicate that she is
claiming a new injury based on these exposures not a spontaneous recurrence of disability.
In support of her claim of a recurrence of disability, due to the November 2001 work
injury, appellant submitted reports from Dr. Jaffe who first stated that appellant was injured
on the job in 1999 and that MRI scans taken in 1999, 2002 and 2004 show a protruding disc
and narrow spine. The record, however, does not contain a workers’ compensation claim for
a back injury in November 1999. Since no workers’ compensation claim was filed for an
alleged work injury in 1999, any back condition prior to November 13, 2001, the date of the
accepted work injury, cannot be determined to be an employment-related condition, but rather
a preexisting condition. Although Dr. Jaffe indicated in his July 19, 2004 and May 26, 2005
reports that appellant’s current disability and back condition are causally related to the
November 13, 2001 injury, his opinion did not address her back condition which preexisted
the November 13, 2001 injury and the effect, if any, the November 13, 2001 injury had on
appellant’s preexisting back condition.
Furthermore, the record indicates that, while appellant required physical restrictions
following her November 13, 2001 work injury, there is no evidence that she had any
restrictions after May 15, 2002, the date that she last sought medical treatment for her back
before the claimed April 26, 2004 recurrence. The record reflects that appellant bid on and
worked different positions without limitations and performed her duties without any known
difficulty. Although Dr. Jaffe opined that her disability beginning April 26, 2004 was a
reexacerbation of her old injuries, he failed to provide sufficient medical rationale to explain
how the November 13, 2001 injury caused her disability beginning April 26, 2004. Thus, his
medical reports are of diminished probative value as his medical conclusions contain
insufficient medical rationale14 and are based on an incomplete medical history.15 There is no
further relevant medical evidence of record.
Although appellant was advised by the Office’s June 25, 2004 letter of the necessity of
providing a rationalized report from her physician explaining how and why the accepted
condition would cause the claimed recurrence of disability, she did not submit such evidence.
Thus, she did not meet her burden of proof to establish that she sustained a recurrence of total
disability commencing April 26, 2004 as alleged.
14
15

See id.
See John W. Montoya, 54 ECAB 306 (2003); Shirley R. Haywood, 48 ECAB 404 (1997).

5

CONCLUSION
The Board finds that appellant failed to establish that she sustained a recurrence of
disability on or about April 26, 2004 causally related to her accepted employment injury of
November 13, 2001.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 12, 2005 is affirmed.
Issued: May 1, 2007
Washington, DC

David S. Gerson, 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
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

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)

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

Docket No. 11-2000
Issued: May 21, 2012

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 August 29, 2011 appellant filed a timely appeal from a March 31, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of
compensation. 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 case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $2,210.89 for the periods October 17, 2008 to March 1, 2009 and
May 11 to October 24, 2009; and (2) whether OWCP properly determined that she was at fault in
the creation of the overpayment and therefore not entitled to a waiver.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 9, 2003 appellant, then a 43-year-old letter carrier, filed a Form CA-2
occupational disease claim for a right knee condition sustained in the performance of duty.
OWCP accepted the claim for right medial meniscal tear. Appellant underwent arthroscopic
surgery on May 20, 2003 and returned intermittently to limited duty beginning July 21, 2003.
She thereafter sustained recurrences of disability on August 6 and 21, 2003, October 3 and 23
and December 24, 2003; September 18, 2004; and March 8, 2007, each accepted by OWCP as
compensable. Appellant received wage-loss compensation at an augmented rate of 75 percent of
her weekly pay.2
Form CA-7 compensation claims filed since August 22, 2003 identified appellant’s son
as a dependent and listed October 17, 1990 as his date of birth. In addition, appellant filed Form
EN1032 affidavits of earnings and employment on May 14, 2005; May 23, 2006; May 19, 2008;
and July 10, 2009. “Part C -- Dependents” of the form reads:
“A claimant who has no eligible dependents is paid compensation at 66 2/3
percent of the applicable pay rate. A claimant who has one or more eligible
dependents is paid compensation at 75 percent of the applicable pay rate....
“You may claim compensation for a dependent if you have one or more of the
following: (b) an unmarried child, including an adopted child or stepchild, who
lives with you and is under 18 years of age; (c) an unmarried child who is 18 or
over, but who cannot support himself or herself because of mental or physical
disability; and (d) an unmarried child under 23 years of age who is a full-time
student and has not completed four years of school beyond the high school
level....
“If you are receiving compensation for a dependent and are no longer entitled to
receive that compensation, state ... [the] date the person stopped being a
dependent [and the] reason the person stopped being a dependent.”
In each affidavit, she claimed that her son was an eligible dependent and acknowledged by
signature her responsibility pursuant to “Part H -- Certification” to “immediately report to
OWCP ... any change in the status of claimed dependents.”
OWCP informed appellant in an October 20, 2009 letter that the augmented
compensation rate would be reduced to the basic rate of 66 2/3 percent effective October 25,
2009 because her son reached 18 years of age on October 17, 2008. It advised her to provide
2

In a November 15, 2007 letter, OWCP asked the employing establishment whether it could offer appellant
modified duties that accommodated her physical restrictions. After the employing establishment failed to submit a
written response, OWCP referred her for vocational rehabilitation services in 2008. By decision dated March 20,
2010, appellant’s wage-loss compensation was reduced on the grounds that she had the capacity to earn wages as a
personnel clerk. In a May 14, 2010 letter, she informed OWCP that she obtained work as an administrative
assistant. On June 14, 2010 the hiring company contacted the vocational rehabilitation counselor to rescind the job
offer due to budget constraints. Appellant subsequently elected to receive disability retirement benefits effective
July 1, 2010. The case record indicates that she has returned to full-time employment.

2

evidence demonstrating that he was unmarried and either incapable of self-support or a full-time
student. Appellant did not respond.
On September 22, 2010 OWCP made preliminary findings that appellant received an
overpayment of $2,601.31 for the period October 17, 2008 to October 24, 2009 and was at fault
in its creation. It pointed out that she was aware that a claimant who has one or more eligible
dependents is paid compensation at 75 percent of the applicable pay rate and must immediately
report any change in the status of a claimed dependent. Appellant was informed of her options if
she wished to contest the fact or amount of overpayment or request a waiver of recovery.
Appellant requested a prerecoupment hearing on October 13, 2010 asserting that her son
was a full-time student from August 24, 2008 to September 29, 2009, she was unaware that she
failed to provide updated information to OWCP and she assumed that the compensation
payments were in the correct amount.
OWCP received additional evidence. In a September 27, 2010 letter, Linda Matrafailo, a
registration services secretary at Sullivan Community College, verified that appellant’s son was a
student for the period August 26 to December 17, 2008. A March 23, 2009 letter from Patricia
Mead, a certification assistant at Kingsborough Community College, confirmed that he was
enrolled as a full-time student from March 2 to June 11, 2009. In a subsequent October 12, 2010
letter, Ms. Mead noted that appellant’s son officially withdrew from his classes effective
May 11, 2009.3
During the telephonic prerecoupment hearing held on February 9, 2011 appellant testified
that her son was a full-time college student between August and December 2008. He later
transferred to another school, but decided to withdraw and enlist in the United States Navy.
Appellant acknowledged that her son was not enrolled for the period May 11 to
October 24, 2009.
In a February 10, 2011 letter, Ms. Matrafailo clarified that appellant’s son was a part-time
student at Sullivan Community College for the period August 26 to December 17, 2008. She
explained that he withdrew from two classes, changing his status to part time effective
September 25, 2008.
Appellant detailed in a February 21, 2011 statement that she was not aware that her son
was registered as a part-time student at Sullivan Community College. She maintained that she
did not deliberately mislead OWCP regarding his dependency status.
By decision dated March 31, 2011, an OWCP hearing representative determined that
appellant was entitled to disability compensation at the augmented rate of 75 percent for the
period March 2 to May 10, 2009, when her son was enrolled as a full-time college student.
Otherwise, he found that she erroneously received $29,434.60 based on the augmented rate for
the periods October 17, 2008 to March 1, 2009 and May 11 to October 24, 2009. The hearing
representative calculated that appellant should have received $27,223.71 based on the basic rate
3

An October 12, 2010 billing statement from Kingsborough Community College indicated that appellant’s son
was dropped for the Fall 2009 semester.

3

of 66 2/3 percent and finalized an overpayment of $2,210.89. He also held that she was at fault
in the creation of the overpayment because she was reasonably aware of her responsibility to
report any change in her son’s dependency status to OWCP. Appellant was advised to either pay
the balance in full or arrange an installment plan with OWCP.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from a personal injury sustained while in the performance of duty.4 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 percent 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.5
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 under 18
years of age or over 18 years of age and incapable of self-support due to physical or mental
disability.6 A 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.7
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 disbursed
at the 75 percent augmented rate and the compensation that should have been disbursed at the 66
2/3 percent basic rate constitutes an overpayment of compensation.8
ANALYSIS -- ISSUE 1
Appellant’s son, who was born October 17, 1990, was claimed as a dependent and
OWCP accordingly paid wage-loss compensation at the augmented rate of 75 percent. Although
he reached the age of 18 on October 17, 2008 she asserted that he was still an eligible dependent
through October 24, 2009 because he was registered as a full-time college student.9
The evidence of record established that appellant’s son was an eligible dependent for a
limited duration. In March 23 and May 11, 2009 letters, Ms. Mead confirmed that he was
originally enrolled on a full-time basis at Kingsborough Community College from March 2 to
4

5 U.S.C. § 8102(a).

5

O.R., 59 ECAB 432, 436 (2008). See also 5 U.S.C. §§ 8105(a) and 8110(b).

6

5 U.S.C. § 8110(a).

7

E.G., 59 ECAB 599, 603 n.10 (2008).

8

Ralph P. Beachum, Sr., 55 ECAB 442, 445 (2004).

9

The Board notes that the case record does not indicate whether appellant’s son married.

4

June 11, 2009. However, because appellant’s son withdrew, effective May 11, 2009, this status
only applied to the period March 2 to May 10, 2009. In addition, September 27, 2010 and
February 10, 2011 letters from Ms. Matrafailo related that he was registered as a part-time
student at Sullivan Community College for the period August 26 to December 17, 2008 because
he did not carry sufficient units.
Because appellant’s son was not pursuing a full-time course of study at a qualifying
college from October 17, 2008 to March 1, 2009 and from May 11 to October 24, 2009, he was
not an eligible dependent and appellant was entitled to compensation at the basic rate during
these periods.10 OWCP’s hearing representative calculated the difference between $29,434.60,
the compensation that was disbursed at the 75 percent augmented rate and $27,223.71, the
compensation that should have been disbursed at the 66 2/3 percent basic rate, which equaled
$2,210.89. The hearing representative explained his calculation and appellant has not disputed
the calculation. The Board finds that OWCP properly determined the fact and amount of the
overpayment.
LEGAL PRECEDENT -- ISSUE 2
An overpayment in compensation shall be recovered by OWCP unless incorrect payment
has been made to an individual who is without fault and when adjustment or recovery would
defeat the purpose of FECA or would be against equity and good conscience.11 Conversely, a
waiver of recovery is not possible if the claimant is at fault in creating the overpayment.12
A claimant who has done any of the following will be found to be at fault with respect to
creating an overpayment: (1) made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; (2) failed to provide information which he or she
knew or should have known to be material; or (3) accepted a payment which he or she knew or
should have known to be incorrect. Whether or not an individual was at fault depends on the
circumstances surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he or she is being
overpaid.13 In applying the tests to determine fault, OWCP applies a “reasonable person”
standard.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant was at fault in the
creation of the overpayment.

10

Beachum, supra note 8, at 446.

11

5 U.S.C. § 8129(b); Linda E. Padilla, 45 ECAB 768 (1994).

12

Donald L. Overstreet, 54 ECAB 678 (2003); Gregg B. Manston, 45 ECAB 344 (1994).

13

20 C.F.R. § 10.433.

14

Beachum, supra note 8, at 447.

5

Appellant made incorrect statements as to a material fact that she should have known to
be incorrect. The case record contains four copies of the Form EN1032 affidavit of earnings and
employment, each of which was filed on May 14, 2005, May 23, 2006, May 19, 2008 and
July 10, 2009, respectively. As noted, express language in this document provides that a
claimant with at least one eligible dependent is entitled to disability compensation at the
augmented rate of 75 percent. Otherwise, the claimant is entitled to compensation at the basic
rate of 66 2/3 percent. Form EN1032 states that a “dependent” includes an unmarried child
under the age of 18 who lives with the claimant and an unmarried child under the age of 23 who
is a full-time student and has not completed four years of school beyond the high school level. It
cautions that a claimant who receives augmented compensation to which he or she is not entitled
must report the date and the reason why the child stopped being a dependent.
Here, appellant indicated in each EN1032 form that her son was a qualified dependent.
She signed each affidavit, acknowledging both the criteria for receiving augmented
compensation on account of dependency and her obligation to promptly report any change in the
status of a claimed dependent. Appellant also maintained before and during the February 9,
2011 prerecoupment hearing that her son was a full-time student from August 24, 2008 to
May 10, 2009. Yet, evidence received by OWCP in 2010 and 2011 showed that appellant’s son
was registered as a full-time student only for the period March 2 to May 10, 2009 at
Kingsborough Community College.15 Given that more than eight months elapsed from
October 17, 2008, the date of her son’s 18th birthday, to July 10, 2009, the date of the most recent
EN1032 form filing, appellant had ample opportunity to verify his enrollment, recognize that he
was not in fact a full-time student for most of the period in dispute and report her findings to
OWCP. Moreover, in view of the totality of the circumstances, appellant should have known
that the compensation payments she continued to receive at the augmented rate were incorrect.
Because she was at fault in creating the overpayment, she was not eligible for waiver of
recovery.
Appellant raises several contentions on appeal. First, she argues that she could not obtain
academic records from either Sullivan Community College or Kingsborough Community
College pertaining to her son’s enrollment status without his consent.16 The case record,
however, does contain letters from the registrars of these institutions, which altogether
established that he was a full-time student only for the period March 2 to May 10, 2009. Second,
appellant asserts that she did not actually know that her son was on a part-time schedule at
Sullivan Community College or that she made an inaccurate statement on the EN1032 form. As
noted, based on a “reasonable person” standard for testing fault, she should have been aware of
both facts. Third, appellant claims that OWCP did not adequately notify her about her
15

The Board points out that OWCP asked appellant in an October 29, 2009 letter to submit evidence
demonstrating that her son was a full-time student. Appellant initially failed to provide enrollment verification
forms, class schedules, transcripts or any other academic records corroborating his status. OWCP received letters
from Ms. Matrafailo and Ms. Mead after it made preliminary findings of overpayment and fault in its September 22,
2010 decision.
16

Appellant adds that she notified OWCP via a vocational rehabilitation counselor that her son was in college.
Taking into consideration the letters from Ms. Matrafailo and Ms. Mead, the Board acknowledges that he was
enrolled in college. The pertinent issue, however, was whether appellant’s son was registered as a full-time student
and for what duration.

6

responsibility to report a change in her son’s dependency status. This contention is contradicted
by the case record, which shows that she received four separate Form EN1032 affidavits, three of
which she signed and filed before her son reached 18 years of age. Finally, appellant emphasizes
that recovery of the overpayment would pose a severe financial hardship. Since she was at fault
in the creation of the overpayment, she cannot request a waiver of recovery.17
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
in the amount of $2,210.89 for the periods October 17, 2008 to March 1, 2009 and May 11 to
October 24, 2009. The Board also finds that OWCP properly determined that she was at fault in
the creation of the overpayment and therefore not entitled to a waiver.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2012
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

17

The Board has no jurisdiction over recovery of the overpayment as appellant is no longer in receipt of monetary
compensation from OWCP. See Cheryl Thomas, 55 ECAB 610 (2004) (with respect to the recovery of the
overpayment, the Board’s jurisdiction is limited to reviewing those cases where OWCP seeks recovery from
continuing compensation benefits under FECA).

7