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

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

Docket No. 14-1240
Issued: September 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 5, 2014 appellant, through his attorney, filed a timely appeal from an Office of
Workers’ Compensation Programs’ (OWCP) decision dated January 15, 2014. 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 sustained an aggravation of a low back condition in the
performance of duty causing disability as of October 14, 2010.
FACTUAL HISTORY
Appellant, a 47-year-old letter carrier, filed an occupational disease claim for benefits on
July 15, 2011, alleging that he developed aggravation of a lumbar condition causally related to
employment factors. He stopped work on October 14, 2010. Appellant explained that up until
1

5 U.S.C. § 8101 et seq.

October 14, 2010 his back condition progressively worsened. His job duties required that he
stoop over his desk to work on certified and registered letters, parcels, delivery confirmations
and express mail. In addition, appellant worked the general delivery window.
Appellant submitted several reports from Dr. Arthur G. Nahas, an osteopathic physician
Board-certified in family practice and sports medicine. On May 13, 2011 Dr. Nahas related that
appellant had ongoing low back spasms and pain into his legs. He stated that a previous nerve
conduction study showed L5-S1 radiculopathy on the left of a moderate degree and mild L5
radiculopathy on the right. Dr. Nahas concluded that appellant could not return to work. On
May 31, 2011 he related that appellant’s work activities of bending over a desk to write up
certified letters and bending to pick up trays of mail aggravated his back condition and
exacerbated his symptoms.
In a report dated July 8, 2011, Dr. Nahas advised that appellant stopped work on
October 14, 2010 due to a low back condition which was aggravated by work factors. He noted
that appellant was involved in activities requiring prolonged bending, sitting and working with a
registered cart which had heavy and oversized items on the bottom. Appellant also had to carry
delivery confirmation packages and parcels; further, his morbid obesity placed additional stress
on his low back. Dr. Nahas opined that appellant was currently totally disabled due to his low
back condition.
On September 15, 2011 OWCP advised appellant that it required additional factual and
medical evidence to determine whether he was eligible for compensation benefits. It asked him
to submit a comprehensive report from his treating physician describing his symptoms and the
medical reasons for his condition with an opinion as to whether his low back condition was
causally related to his federal employment. OWCP requested that appellant submit this evidence
within 30 days.
OWCP thereafter received an October 7, 2011 supplemental statement from appellant
who described the frequency of his various employment duties.
Dr. Nahas submitted reports dated September 29 and October 20, 2011. He stated
findings on examination and reiterated his previous findings and conclusions. Dr. Nahas opined
that appellant’s neck, upper and lower extremity radicular and low back complaints were directly
and solely the result of working at the employing establishment.
By decision dated October 17, 2011, OWCP denied appellant’s claim, finding that he
failed to establish fact of injury. It found the evidence insufficient to establish the work events or
factors, as alleged.
By letter dated October 25, 2011, appellant, through his attorney, requested a hearing.
By decision dated January 9, 2012, an OWCP hearing representative set aside the
October 17, 2011 decision. The case was remanded for further development of the factual
evidence regarding appellant’s work duties.
By decision dated May 9, 2012, OWCP denied appellant’s claim. It accepted that he
performed duties as a mail clerk that required stooping and bending. OWCP found, however,
2

that he failed to submit sufficient medical evidence to establish that his low back condition was
causally related to his work duties.
By letter dated May 14, 2012, counsel requested a hearing.
By decision dated August 14, 2012, an OWCP hearing representative set aside the
May 9, 2012 decision. She directed that the current case, OWCP file number xxxxxx031, be
combined with a previously accepted claim for a lumbar strain under file number xxxxxx462,
which appellant sustained on July 29, 2008. The hearing representative remanded the case for
review by Dr. Lawrence Barr, an osteopath and second opinion examiner, to address whether
appellant’s claimed low back condition was caused by his work duties, as described by the
employing establishment.2
In a December 28, 2012 report, Dr. Barr stated that appellant did have a low back strain
on July 29, 2008 but did not sustain a worsening of his underlying degenerative disc disease. He
advised that appellant had an exacerbation, a temporary increase in his symptomatology.
Dr. Barr stated that when he examined appellant on June 4, 2012, he complained of tenderness in
the lumbar paraspinals radiating into the buttocks. He showed full motion and good strength,
reflexes and sensation. Appellant’s current complaints appeared to be related to his degenerative
disc disease and that he had underlying medical conditions such as diabetes, atrial fibrillation and
morbid obesity, which by themselves affected a person’s ability to work.
In a January 24, 2013 report, Dr. Barr stated that appellant did not suffer a worsening of
his preexisting back condition. He advised that appellant had a low back sprain, preexisting
degenerative disc disease and morbid obesity and had experienced chronic pain since a 1991
motor vehicle accident. Dr. Barr opined that most of appellant’s back pain was due to his
chronic morbid obesity, diabetes, chronic low back pain and degenerative disc disease. He
advised that appellant had undergone an electromyelogram (EMG) which noted sensory
neuropathy consistent with diabetic sensory neuropathy. Dr. Barr concluded that appellant was
capable of sedentary work.
By decision dated February 7, 2013, OWCP found that Dr. Barr’s referral opinion
represented the weight of medical evidence and that based on his opinion appellant’s claimed
low back condition was not causally related to employment factors.
By letter dated February 12, 2013, counsel requested an oral hearing.
By decision dated May 7, 2013, OWCP’s hearing representative set aside the
February 7, 2013 decision, finding that there was a conflict in medical opinion between Dr. Barr,
the second opinion examiner, and Dr. Nahas, appellant’s treating physician, as to whether his
2

File number xxxxxx462 pertains to appellant’s traumatic injury claim of July 29, 2008, accepted for a lumbar
sprain. OWCP referred him to Dr. Barr on May 18, 2012 with a description of his duties as a letter carrier. In a
June 4, 2012 report, Dr. Barr noted that appellant was 6’3” and weighed 425 pounds. Diagnostic testing on
January 30, 2009 showed mild degenerative disc disease at L5-S1 without neural compression. He found that
appellant’s accepted back sprain had reached maximum improvement and no further treatment was necessary.
Dr. Barr attributed appellant’s low back pain to degenerative disc disease and morbid obesity. He stated that
appellant was at a sedentary level of work.

3

low back condition was causally related to employment factors. She remanded the case for
appellant to be referred to a referee medical specialist to resolve the conflict in the medical
evidence.
OWCP referred appellant to Dr. Ian B. Fries, Board-certified in orthopedic surgery, for a
referee medical examination. In a June 29, 2013 report, Dr. Fries listed findings on examination
and reviewed the medical history and the statement of accepted facts. He found that appellant’s
ongoing low back condition was not causally related to his employment factors. He advised that
any aggravation, acceleration or precipitation of appellant’s lumbar condition was based on
subjective complaints and that there was insufficient evidence to consider his duties from
August to October 2010 as the cause of his current low back condition. While appellant did have
subjective pain complaints consistent with left lower extremity radiculopathy, he did not
currently have objective examination findings to confirm lumbar spine pathology or disabling
residuals of the 2008 and 2010 work injuries. Dr. Fries further opined that there were no
objective physical findings, such as sensory loss in a dermatomal pattern or sciatic symptoms
with provocative testing. He reviewed a December 19, 2008 EMG test and concurred with
Dr. Barr that it did not evidence radiculopathy; he opined that the diagnostic test was consistent
with peripheral radiculopathy which was likely diabetic in origin.
Dr. Fries concluded that appellant was totally disabled from employment but that this was
due to his morbid obesity, untreated diabetes requiring insulin, untreated cardiac arrhythmia and
untreated probable congestive heart failure, not the 2008 injury or 2010 activities at work.
By decision dated July 16, 2013, OWCP denied appellant’s claim, finding that he failed
to submit sufficient medical evidence to establish that his low back condition was causally
related to his work duties. It found that Dr. Fries’ impartial opinion represented the weight of the
medical evidence.
On July 23, 2013 counsel requested an oral hearing, which was held on
November 8, 2013.
By decision dated January 15, 2014, an OWCP hearing representative affirmed the
July 16, 2013 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.4 These are the essential elements of each and every

3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.6
To establish causal relationship, a claimant must submit a physician’s report in which the
physician reviewed the employment factors identified as causing the claimed condition and,
taking these factors into consideration as well as findings upon examination, states whether the
employment injury caused or aggravated the diagnosed condition and presents medical rationale
in support of his opinion.7
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee the Secretary shall appoint a
third physician who shall make an examination.8 It is well-established that, when a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.9
ANALYSIS
On appeal, counsel argues that Dr. Fries’ impartial medical report was not sufficiently
rationalized and presented inaccurate conclusions regarding the work relatedness of appellant’s
claimed low back condition. He argues that Dr. Nahas provided diagnostic test results which
showed that appellant had bilateral neuropathies and that Dr. Fries was provided with misleading
questions concerning appellant’s work injury. Counsel contends that OWCP erred in asking
Dr. Fries if there was any aggravation of the prior lumbar condition as a result of the
October 14, 2010 work injury and that Dr. Fries wrongly refers to a 2010 work accident, when
the claim is based on an occupational condition, not traumatic injury. He further contends that
Dr. Fries’ opinion is not well reasoned because he did not significantly discuss the diagnostic
tests in the record or the work duties appellant performed from August to October 2010; he
specifically questions why Dr. Fries did not explain why EMG testing would show a diabetic
5

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

6

J.S., Docket No. 13-2022 (issued July 28, 2014).

7

J.M., 58 ECAB 303 (2007).

8

Regina T. Pellecchia, 53 ECAB 155 (2001).

9

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

5

neuropathy versus an entrapment neuropathy, which was revealed by the EMG testing. Counsel
further contends that Dr. Fries used speculative language and was confusing and contradictory in
stating that appellant had chronic low back pain, subjective left sciatica symptoms and a current
disability but no low back condition causally related to his claimed low back condition. He
therefore contends that Dr. Fries’ report is not well reasoned and did not merit the special weight
of a referee medical examiner.
In his June 29, 2013 report, Dr. Fries stated that, while appellant did have subjective pain
complaints consistent with left lower extremity radiculopathy, he did not have objective
examination findings to confirm lumbar spine pathology or disabling residuals of his work
incidents. He asserted that any aggravation, acceleration or precipitation of his lumbar condition
was based on subjective complaints. There was insufficient evidence to supporting a finding that
appellant’s work duties from August to October 2010 were the cause of his current low back
condition. Dr. Fries opined that there were no subjective physical findings such as sensory loss
in a dermatomal pattern or sciatic symptoms with provocative testing. He reviewed a
December 19, 2008 EMG test and concurred with Dr. Barr that they did not indicate
radiculopathy. Dr. Fries opined that these tests were consistent with peripheral radiculopathy,
which was likely diabetic in origin. He concluded that appellant was totally disabled from
employment but that this was attributable to morbid obesity, untreated diabetes, untreated cardiac
arrhythmia and untreated probable congestive heart failure, not his claimed low back condition.
OWCP relied on Dr. Fries’ opinion in its July 16, 2013 decision, finding that appellant’s claimed
low back condition was not causally related to his employment.
The Board finds that Dr. Fries’ impartial opinion negates a causal relationship between
appellant’s claimed condition and his employment. Counsel makes several assertions that
Dr. Fries’ findings are not accurate or well reasoned. The question of whether appellant
sustained a low back condition in the performance of duty is a medical one. Upon review,
Dr. Fries’ opinion is sufficiently probative, rationalized and based upon a proper factual
background. Therefore, OWCP properly accorded his opinion the special weight of an impartial
medical examiner.10 The Board therefore finds that Dr. Fries’ opinion constituted the weight of
medical opinion and supports the July 16, 2013 OWCP decision finding that appellant did not
sustain a low back condition in the performance of duty.
Appellant subsequently requested an oral hearing but did not submit any additional
medical evidence. Thus the Board will affirm OWCP’s hearing representative’s January 16,
2014 decision.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.11 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.

10

Gary R. Seiber, 46 ECAB 215 (1994).

11

See id.

6

Appellant has not met his burden of proof in establishing that his claimed lumbar back
condition was causally related to his employment. For this reason, he has not discharged his
burden of proof to establish his claim that this condition was sustained in the performance of
duty.
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 appellant has failed to meet his burden of proof to establish that his
claimed low back condition was sustained in the performance of duty.

7

ORDER
IT IS HEREBY ORDERED THAT the January 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
L.B., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Wilmington, DE, Employer
)
___________________________________________ )
Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1336
Issued: February 18, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 27, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated April 16, 2009. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
more than a five percent permanent impairment of her right upper extremity.
FACTUAL HISTORY
On April 14, 2006 appellant, then a 45-year-old clerk, filed an occupational disease claim
alleging that she injured her right arm, wrist and shoulder while casing mail. The Office
accepted her claim for sprain of right shoulder and upper arm.1 It also accepted specified
disorder of bursae and brachial neuritis or radiculitis on the right. Appellant received appropriate
compensation benefits.
1

The Office also accepted a May 25, 2008 claim for recurrence.

On March 6, 2007 appellant’s treating physician, Dr. Elliot H. Leitman, a Board-certified
orthopedic surgeon, performed an authorized right shoulder arthroscopy with subacromial
decompression.2
On January 8, 2009 appellant claimed a schedule award and submitted a November 20,
2008 report from Dr. David Weiss, an osteopath, who advised that he utilized the fifth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) to rate impairment. Dr. Weiss advised that appellant had reached maximum medical
improvement and was doing normal work duty. Appellant continued to experience right
shoulder pain and stiffness which was constant in nature and increased with changes in weather.
Dr. Weiss also noted that appellant’s activities of daily living were restricted. He examined
appellant’s right shoulder and noted well-healed portal arthroscopy scars, with focal
acromioclavicular point tenderness. Regarding range of motion, Dr. Weiss noted that it was
restricted with forward elevation, abductions and crossover adduction. He advised that internal
rotation was abnormal to the sacrum and that circumduction produced crepitus within the
acromioclavicular joint. Dr. Weiss explained that the drop test revealed a rotator cuff lag.
Regarding the right elbow, he noted findings which included tenderness over the lateral
epicondyle and lateral extensor mechanism, with positive wrist hyperextension. Under manual
muscle strength testing, Dr. Weiss determined that appellant had a grade of 4/5 for the
supraspinatus musculature. He noted that, for range of motion, Figure 16-40, appellant had an
impairment of three percent for right shoulder flexion.3 Dr. Weiss referred to Figure 16-43 and
determined that right shoulder abduction was two percent impairment.4 He also referred to Table
16-27 and advised that appellant had impairment of 10 percent for right shoulder resection
arthroplasty.5 Dr. Weiss also stated that appellant had three percent impairment for pain
pursuant to Figure 18-1.6 He opined that the total right upper extremity impairment was 18
percent.
In a March 14, 2009 report, the Office medical adviser reviewed appellant’s history and
the medical evidence. He noted that Dr. Weiss recommended 10 percent impairment for
resection arthroplasty under Table 16-27; however, this rating was applicable only when the
patient underwent a resection of the right distal clavicle.7 The medical adviser explained that the
surgical report did not establish that appellant underwent a resection of the distal clavicle, rather
she underwent a shaving of the rotator cuff and subacromial decompression. Therefore,
2

Dr. Leitman indicated that, on diagnostic arthroscopy, there were no chondral changes and that minor fraying of
the superior labrum was debrided with an arthroscopic shaver. A small partial-thickness rotator cuff tear was
debrided and the rotator cuff otherwise had an intact footprint. Arthroscopic examination of the subacromial space
revealed extensive bursitis and a bursectomy was completed. Soft tissue was also removed down the surface of
acromion and an acromioplasty was performed with excess bony fragments and bursa removed.
3

A.M.A., Guides 476.

4

Id. at 477.

5

Id. at 506.

6

Id. at 574.

7

Id. at 506.

2

appellant did not have 10 percent impairment due to the surgery. Although Dr. Weiss rated pain
impairment of three percent, the rating provided did not meet the criteria outlined in the A.M.A.,
Guides.8 For loss of range of motion, Figure 16-40, right shoulder flexion/forward elevation was
140 degrees, three percent impairment;9 and under Figure 16-43, 140 degrees of abduction was
two percent impairment.10 He concluded that appellant had five percent impairment for lost
range of motion. The medical adviser noted that appellant reached maximum medical
improvement on November 20, 2008.
By decision dated April 16, 2009, the Office granted appellant a schedule award for five
percent permanent impairment of her right upper extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act11 and its
implementing regulations12 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.13
Section 18.3b of the fifth edition of the A.M.A., Guides provides that pain-related
impairment should not be used if the condition can be adequately rated under another section of
the A.M.A., Guides. Office procedures provide that, if the conventional impairment adequately
encompasses the burden produced by pain, the formal impairment rating is determined by the
appropriate section of the A.M.A., Guides. However, an impairment rating can, in some
situations, be increased by up to three percent if pain increases the burden of the employee’s
condition.14
ANALYSIS
Dr. Weiss found that appellant had 18 percent impairment of the right arm. The Board
notes that his report is insufficient to establish more than the five percent impairment. Dr. Weiss
referred to Table 16-27 to find that a right shoulder resection arthroplasty represented 10 percent
8

Id. at 570, Figure 18.3a: When This Chapter Should Be Used To Evaluate Pain-Related Impairment.

9

Id. at 476.

10

Id. at 477.

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

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

14

Richard B. Myles, 54 ECAB 379 (2003).

3

impairment of the upper extremity.15 The Office medical adviser, however, reviewed the
surgical report and determined that a resection of the distal clavicle had not been performed. As
the medical record does not establish that appellant underwent a resection arthroplasty, she is not
entitled to an impairment rating under Table 16-27 of the A.M.A., Guides.
Dr. Weiss rated impairment of three percent for pain under Figure 18-1. The fifth edition
of the A.M.A., Guides allows for an impairment percentage to be increased by up to three
percent for pain under Chapter 18, if an individual appears to have a pain-related impairment that
has increased the burden on his or her condition slightly.16 A formal pain assessment, however,
must be performed in accordance with Chapter 18.17 Otherwise medical examiners are advised
not to use Chapter 18 for any condition that can be adequately related under the other chapters of
the A.M.A., Guides. Dr. Weiss did not explain the basis for rating pain under Chapter 18.18 The
Office medical adviser found that the additional impairment of three percent for pain was not
supported. The medical evidence does not establish that appellant is entitled to an award due to
pain under Chapter 18.
For the right shoulder, Dr. Weiss and the Office medical adviser were in agreement that
appellant has five percent impairment for loss of range of motion to the right upper extremity.
Under Figure 16-40,19 appellant had flexion of 140 degrees which represents three percent
impairment. Under Figure 16-43,20 abduction of 140 degrees is a two percent impairment.
Adduction of 55 degrees does not represent any impairment to the shoulder. The Office medical
adviser also referred to Figure 16-4621 and explained that external rotation of 90 degrees did not
represent impairment. He added the flexion and abduction to total five percent for decreased
range of motion of the right shoulder. The Board notes there is no other medical evidence of
record, based upon a correct application of the A.M.A., Guides, to establish more than five
percent permanent impairment of the right arm.
On appeal, appellant’s representative contends that the impairment rating by Dr. Weiss
represents the weight of medical opinion. As noted, however, the evidence does not support
greater impairment. The Board notes that appellant may submit relevant medical evidence to the
Office in support of a request for an additional schedule award.

15

A.M.A., Guides 506.

16

T.H., 58 ECAB 334 (2007).

17

A.M.A., Guides 573.

18

Id. at 573.

19

Id. at 476.

20

Id. at 477.

21

Id. at 479.

4

CONCLUSION
The Board finds that appellant has no more than a five percent impairment of her right
upper extremity for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 16, 2009 is affirmed.
Issued: February 18, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, FREDERICK N.
WEATHERS POST OFFICE, St. Louis, MO,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0311
Issued: July 8, 2020

Case Submitted on the Record

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

JURISDICTION
On November 22, 2019 appellant, through counsel, filed a timely appeal from a
November 5, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $45,057.81, for which he was without fault,
because he received schedule award compensation for which he was not entitled; (2) whether it
properly denied appellant’s request for waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $500.00 from appellant’s
continuing compensation payments every 28 days.
FACTUAL HISTORY
On September 26, 2014 appellant, then a 54-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed a degenerative left knee condition as a result
of his repetitive federal employment duties, specifically walking on concrete and up and down
stairs in cold weather.3 He indicated that he first became aware of his condition and realized that
it resulted from his federal employment on February 14, 2014. Appellant stopped work on
August 16, 2014. OWCP accepted his claim for left knee medial osteoarthritis. It paid wage-loss
compensation on the supplemental rolls until September 23, 2014 when appellant returned to fulltime modified duty.
On July 23, 2015 appellant filed a claim for a schedule award (Form CA-7). By decision
dated March 15, 2016, OWCP granted him a schedule award for 20 percent permanent impairment
of the left lower extremity (left leg). The schedule award ran for 57.6 weeks from August 12, 2015
to September 18, 2016.4
On October 31, 2016 appellant underwent authorized left knee unicondylar arthroplasty.
OWCP paid wage-loss compensation and placed him on the periodic rolls, effective
December 11, 2016. On February 9, 2016 appellant returned to part-time modified duty.
On May 15, 2017 appellant filed a Form CA-7 for an increased schedule award.
Appellant submitted a June 6, 2017 report from Dr. Neil Allen, a Board-certified
neurologist and internist, who noted that appellant’s claim was accepted for left knee degenerative
osteoarthritis. Dr. Allen reviewed appellant’s employment and medical history and provided
examination findings. He utilized Table 16-3 on page 511 of the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 Dr.
3
Appellant subsequently filed a traumatic injury claim (Form CA-1) on October 3, 2017 alleging that on that date
he cut his chin and hurt his leg when he tripped between two trucks while in the performance of duty. He did not stop
work. OWCP accepted appellant’s claim for left leg contusion and head laceration. That case, OWCP File No.
xxxxxx721, was administratively combined with the current claim, OWCP File No. xxxxxx321, with the latter serving
as the master file.
4

The schedule award was based on the February 22, 2016 report of OWCP’s district medical adviser (DMA),
Dr. Arnold T. Berman, a Board-certified orthopedic surgeon, who opined that appellant had 20 percent left lower
extremity permanent impairment based on his diagnosis of left knee osteoarthritis.
5

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

2

Allen indicated that appellant had reached maximum medical improvement (MMI) and using the
diagnosis-based impairment (DBI) rating method, appellant was a class 3, default 37 percent
(grade C), for status post tibial osteotomy, poor result. He explained that there was no DBI
classification for a unicondylar arthroplasty “so tibial osteotomy was chosen as it most closely
resembles a unicondylar arthroplasty.” Dr. Allen assigned a grade modifier for functional history
(GMFH) of 2 because of appellant’s antalgic gait and lower limb questionnaire score of 55. He
reported that he did not consider grade modifiers for physical examination (GMPE) or clinical
studies (GMCS) as he considered them in his class of diagnosis (CDX) placement. After applying
the net adjustment formula, ((2-3) + (0) + (0) = -1), Dr. Allen determined that appellant had a net
adjustment score of -1, which resulted in 34 percent (grade B) permanent impairment for his left
lower extremity (LLE).
On February 28, 2018 appellant voluntarily retired from federal employment.
OWCP referred appellant’s claim, along with a statement of accepted facts (SOAF) and
Dr. Allen’s June 6, 2017 report to a DMA, Dr. Arthur S. Harris, a Board-certified orthopedic
surgeon. In an April 20, 2018 report, the DMA indicated that he had reviewed the SOAF and
concurred with Dr. Allen’s finding that appellant had 34 percent left lower extremity permanent
impairment. He utilized Table 16-3, on page 511, of the sixth edition of the A.M.A., Guides and
noted diagnoses of status post left knee medial unicondylar arthroplasty and status post left knee
excision and debridement of hematoma with polyethylene exchange. The DMA reported “the
claimant has 34 percent lower extremity impairment for having a fair result following unicondylar
knee arthroplasty with documented motion deficits (CDX 3B/GM).” He noted that the date of
MMI was June 6, 2017.
By decision dated September 18, 2018, OWCP granted appellant a schedule award for 34
percent permanent impairment of the LLE (left leg). The award ran for 97.92 weeks from June 6,
2017 to April 22, 2019.
In an April 23, 2019 letter, OWCP requested that the DMA address appellant’s prior
schedule award of 20 percent LLE permanent impairment and provide an addendum report
clarifying whether his April 20, 2018 impairment rating report included the prior percentage
awarded. In a May 1, 2019 report, the DMA clarified that, since appellant was previously awarded
20 percent permanent impairment for his LLE, he was entitled to an increase of 14 percent
permanent impairment for a total of 34 percent LLE permanent impairment.
In a June 10, 2019 notice, OWCP advised appellant of its preliminary determination that
he received a $45,057.81 overpayment of compensation because he received schedule award
compensation for 34 percent permanent impairment of the left lower extremity, but was only
entitled to receive schedule award compensation for 14 percent permanent impairment. In the
overpayment calculation memorandum, it explained that he received a total of $76,698.29 in
schedule award compensation, but that subtracting $31,540.47 for his appropriate entitlement to
schedule award compensation for 14 percent permanent impairment yielded a $45,047.81
overpayment. OWCP also made a preliminary determination that appellant was not at fault in the
creation of the overpayment. It advised him that he could submit evidence challenging the fact or
amount of the overpayment, or request waiver of recovery of the overpayment. OWCP informed
appellant that he could submit additional evidence in writing or at a prerecoupment hearing, but

3

that a prerecoupment hearing must be requested within 30 days of the date of the written notice of
overpayment. It requested that he complete and return an overpayment recovery questionnaire
(Form OWCP-20) within 30 days even if he was not requesting waiver of the overpayment.
On June 18, 2019 appellant, through counsel, requested a telephonic prerecoupment
hearing with a representative of OWCP’s Branch of Hearings and Review regarding the possibility
of waiver of recovery of the overpayment. He also submitted a completed Form OWCP-20.
On October 2, 2019 a telephonic prerecoupment hearing was held.
By decision dated November 5, 2019, an OWCP hearing representative finalized the
June 10, 2019 preliminary overpayment determination. She found that appellant received a
$45,057.81 overpayment of compensation, for which he was without fault, because he received
schedule award compensation for an additional 34 percent permanent impairment of the left lower
extremity, but was only entitled to receive schedule award compensation for an additional 14
percent permanent impairment of the left lower extremity as he had a previously received a
schedule award for 20 percent of the LLE. The hearing representative denied his request for waiver
of recovery of the overpayment since his monthly income exceeded his monthly expenses by more
than $50.00. She indicated that repayment in the monthly amount of $500.00 was reasonable and
would allow for timely collection of the debt.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.6 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.7
If a claimant receives a schedule award and the medical evidence does not support the
degree of permanent impairment awarded, an overpayment may be created.8 OWCP’s procedures
provide that claims for an increased schedule award based on the same edition of the A.M.A.,
Guides are subject to overpayment.9 If a claimant requests an increased schedule award due to a
belief that his or her medical condition has deteriorated since the original award has been issued,
and additional development is undertaken to address this claim for an increased schedule award, a
new schedule award decision should be issued that addresses and substantiates the newly

6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

J.C., Docket No. 09-1526 (issued June 1, 2010); Michael Reed, Docket No. 04-0734 (issued October 5, 2004).

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.9(e) (February 2013).

4

determined impairment rating. If a lesser degree of impairment than previously awarded is
substantiated, an overpayment thereafter is appropriate.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not establish that an overpayment of compensation had
been created; therefore, this case must be reversed.
OWCP had previously granted appellant a schedule award for 20 percent LLE permanent
impairment based on his accepted condition of left knee osteoarthritis. On May 15, 2017 appellant
filed a claim for an increased schedule award and submitted medical evidence. After development
of the evidence, OWCP granted him a schedule award for an additional 34 percent LLE permanent
impairment. In an April 23, 2019 letter, it requested that the DMA clarify whether the 34 percent
LLE permanent impairment included the prior percentage that was awarded. In a May 1, 2019
supplemental report, the DMA simply explained that, since appellant was previously awarded 20
percent LLE permanent impairment, he was only entitled to an increase of 14 percent LLE
permanent impairment. By decision dated November 5, 2019, an OWCP hearing representative
finalized the June 10, 2019 preliminary overpayment decision and determined that appellant
received a $45,057.81 overpayment of compensation, for which he was without fault, because he
received schedule award compensation for 34 percent LLE permanent impairment, but was only
entitled to an increase of 14 percent LLE permanent impairment.
The Board finds that OWCP failed to adequately support its determination that appellant
received a $45,057.81 overpayment of compensation because he received schedule award
compensation for 34 percent permanent impairment of his LLE when he was only entitled to an
additional 14 percent permanent impairment. The Federal (FECA) Procedure Manual Chapter
2.808.9(e) provides that, before addressing the issue of whether an overpayment is appropriate, the
schedule award issue must be resolved. Before the amount of overpayment can be determined,
the evidence must clearly establish the degree of permanent impairment.
The Board has previously held that simply comparing the prior percentage of permanent
impairment awarded to the current impairment for the same member is not always sufficient to
deny an increased schedule award claim. The issue is not whether the current permanent
impairment rating is greater than the prior impairment ratings, but whether it duplicates in whole
or in part the prior impairment rating.11
OWCP failed to take into account that the LLE ratings were not based on the same accepted
conditions. Therefore, the underlying schedule award issue remains unresolved. As OWCP has
not properly resolved the underlying issue of appellant’s entitlement to a schedule award, the
Board finds that the overpayment issue cannot be addressed until the schedule award issue is

10

Id.

11

P.M. Docket No. 18-1215 (issued June 18, 2020); Richard Saldibar, 51 ECAB 585 (2000).

5

properly resolved.12 In light of the Board’s disposition of the first issue, the issues of waiver of
recovery of overpayment and repayment are rendered moot.
CONCLUSION
The Board finds that, as fact of overpayment has not been established, the November 5,
2019 must be reversed.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2019 decision of the Office of
Workers’ Compensation Programs decision is reversed.
Issued: July 8, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

Id.

6


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

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

Docket No. 17-1470
Issued: December 15, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 26, 2017 appellant, through counsel, filed a timely appeal from a May 3, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established more than 10 percent permanent
impairment of the left upper extremity, for which she previously received a schedule award.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before October 20, 2009 appellant, then a 38-year-old letter
carrier, sustained a shoulder and upper arm sprain due to repetitive trauma from carrying a mail
satchel on her left shoulder.
Appellant was first followed by Dr. Gahear F. Hamlor, an attending family practitioner,
who diagnosed a left shoulder sprain and noted a history left carpal tunnel syndrome3 on
February 19, 2010. In a March 4, 2010 report, Dr. Hamlor attributed appellant’s symptoms to
carrying a mail satchel on her left shoulder.4 Appellant remained off work.5 OWCP paid
appellant wage-loss compensation for total disability beginning February 27, 2010. Apart from a
very brief return to work in early May 2010, appellant remained off work. OWCP paid wageloss compensation through October 22, 2011. Appellant remained under medical treatment.
Dr. Michael Kyles, an attending Board-certified orthopedic surgeon, treated appellant
beginning March 2010 for left shoulder impingement. A steroid injection was ineffective in
relieving appellant’s symptoms. In an October 1, 2010 report, Dr. Kyles noted that appellant
obtained significant relief of her shoulder symptoms with trigger point injections administered by
a neurologist.
In a February 7, 2011 report, Dr. William C. Andrews, Jr., an attending Board-certified
orthopedic surgeon, administered a left subacromial injection. Appellant participated in physical
therapy in August to November 2011. Dr. Andrews provided periodic progress notes through
December 2011.6
Appellant returned to full-time modified duty on December 20, 2011. She stopped work
on January 17, 2012 due to increased left arm pain, and resumed work on January 25, 2012.
Appellant worked part-time modified duty in February and early March 2012. OWCP issued
appropriate compensation for work absences.
On July 13, 2012 Dr. Andrews administered a steroid injection to address left
epicondylitis. August 15, 2012 EMG/NCV studies showed moderate median nerve neuropathy
at the wrist without active denervation.

3

June 26, 2008 and August 12, 2010 electromyography/nerve conduction velocity (EMG/NCV) testing
demonstrated bilateral carpal tunnel syndrome.
4

A magnetic resonance imaging (MRI) scan of the left shoulder performed on March 11, 2010 demonstrated
probable mild impingement.
5

Appellant participated in physical therapy in March and April 2010.

6

To assess the nature and extent of appellant’s left shoulder condition, on April 27, 2011, appellant obtained a
second opinion from Dr. J. Wayne Keeling, a Board-certified orthopedic surgeon. Dr. Keeling opined that appellant
remained totally disabled for work due to significant left rhomboid and upper trapezius pain, caused by work factors.
A June 23, 2011 functional capacity evaluation obtained by OWCP demonstrated appellant’s capacity to perform
full-time light-duty work.

2

Appellant resumed part-time modified work on May 21, 2012. OWCP paid appellant
wage-loss compensation for the remaining hours.
In a July 5, 2012 report, Dr. Andrews diagnosed left subacromial bursitis. He opined in
September 12, 2012 and March 11, 2013 reports that appellant had occupationally-related left
carpal tunnel syndrome, and required a left carpal tunnel release and excision of the left distal
clavicle.
Appellant stopped work on December 14, 2013. She filed a claim for recurrence of
disability (Form CA-2a) on January 24, 2014. Appellant remained off work. Dr. Andrews
provided a February 14, 2014 report, explaining that the left shoulder condition worsened the
carpal tunnel syndrome, which in turn aggravated subacromial bursitis. He continued to hold
appellant off work.
In a May 1, 2014 decision, OWCP denied appellant’s claim for a recurrence of disability
commencing December 14, 2013, finding that the medical evidence of record was insufficient to
support a worsening of the accepted shoulder sprain. On May 9, 2014 counsel requested a
telephone hearing before a representative of OWCP’s Branch of Hearings and Review.7
On August 5, 2014 Dr. Andrews performed an open left distal clavicle excision and left
carpal tunnel release. He removed one centimeter of “very significantly arthritic” bone from the
distal end of the left clavicle. Appellant underwent physical therapy through November 2014
and Dr. Andrews provided progress notes. In a January 7, 2015 note, Dr. Andrews opined that
appellant had not attained maximum medical improvement.
OWCP paid appellant wage-loss compensation from December 31, 2014 through
August 6, 2015.
By decision dated March 2, 2015, an OWCP hearing representative affirmed OWCP’s
May 1, 2014 decision, finding that the medical evidence of record did not establish a significant
worsening of the accepted left shoulder sprain on or about December 14, 2013, when she had
stopped work.
In a May 1, 2015 report, Dr. Andrews ordered a repeat MRI scan of the left shoulder to
ascertain the cause of appellant’s increasing pain and immobility. He found that she attained
maximum medical improvement as of July 17, 2015.
On September 12, 2015 appellant claimed a schedule award (Form CA-7).
In a September 28, 2015 letter, OWCP notified appellant of the additional evidence
needed to establish her claim, including a report from her attending physician supporting that she
had attained maximum medical improvement, the diagnosis on which the permanent impairment
is based, a detailed description of the permanent impairment, and an impairment rating
calculated according to the sixth edition of the American Medical Association, Guides to the

7

A telephone hearing was held on December 11, 2014.

3

Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides).8 Appellant was afforded 30
days to submit such evidence.
By decision dated October 29, 2015, OWCP denied appellant’s schedule award claim,
finding that the medical evidence of record did not establish ratable permanent impairment of a
scheduled member of the body.
On November 4, 2015 counsel requested a telephone hearing before a representative of
OWCP’s Branch of Hearings and Review. Appellant submitted new medical evidence.
Dr. Joshua B. Macht, an attending Board-certified internist, provided an October 15,
2015 report reviewing appellant’s history of injury and treatment. He opined that appellant had
attained maximum medical improvement on or before December 31, 2014. On examination,
Dr. Macht found slight weakness of the left shoulder, mild pain with resisted motion, a positive
Tinel’s sign, and tenderness to palpation of the ventral side of the left wrist. He observed the
following range of left shoulder motion: 120 degrees flexion; 45 degrees extension; 130 degrees
abduction; 40 degrees adduction; 50 degrees external rotation; “normal” internal rotation.
Dr. Macht noted that each range of motion (ROM) measurement was obtained after at least three
trials to ensure accuracy. He obtained grip strength measurements at 34 kilograms on the right
and 18 kg on the left. Dr. Macht diagnosed status-post left distal clavicle resection, and status
post left carpal tunnel release. Referring to Table 15-5 of the A.M.A., Guides,9 he assessed a
grade 1 diagnosis-based impairment (DBI) rating Class of Diagnosis (CDX) of the left shoulder
for acromioclavicular joint injury or disease with open distal clavicle resection. Dr. Macht found
a grade 4 modifier for Functional History (GMFH) due to a QuickDASH score of 86, which he
disregarded as it was more than two grades higher than the CDX. He found nine percent
permanent impairment of the left arm according to Table 15-34 due to limited motion, equaling a
grade 1 modifier for Physical Examination (GMPE). There was no applicable modifier for
Clinical Studies (GMCS) as they were “used to define her impairment class.”
Regarding the left wrist, Dr. Macht found a grade 1 CDX for carpal tunnel syndrome, a
GMCS of 1, a GMFH of 3, and a GMPE of 3. Applying the net adjustment formula of (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX), or (3-1) + (3-1) + (1-1), he calculated a grade modifier
of 2, equaling percent impairment of the left arm. Dr. Macht concluded that appellant had 10
percent permanent impairment of the left upper extremity due to her left shoulder injury, and an
additional 5 percent permanent impairment due to left carpal tunnel syndrome. He combined
these values to find a total of 15 percent permanent impairment of the left arm.
By decision dated May 13, 2016, an OWCP hearing representative remanded the case to
OWCP for additional development regarding whether appellant had a ratable impairment of the
left upper extremity.

8

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

Table 15-5, page 401-05 of the sixth edition of the A.M.A., Guides is titled “Shoulder Region Grid: Upper
Extremity Impairments.”
9

4

An OWCP medical adviser reviewed the medical evidence of record and an updated
statement of accepted facts on January 8, 2016. He opined that the accepted work factors
resulted in 10 percent permanent impairment to the left arm due to the left shoulder condition
based on the distal clavicle resection according to Table 15-5. The medical adviser asserted that
OWCP should disregard Dr. Macht’s finding of additional impairment of the left arm due to
restricted left shoulder motion, as ROM was used primarily as a factor in calculating GMPE.
By decision dated June 2, 2016, OWCP issued appellant a schedule award for 10 percent
permanent impairment of the left upper extremity. The period of the award, equivalent to 31.20
weeks of compensation, ran from December 31, 2014 to August 6, 2015.
Appellant separated from the employing establishment, effective June 27, 2016.
On September 8, 2016 OWCP administratively combined appellant’s claims, File Nos.
xxxxxx076 and xxxxxx789, with File No. xxxxxx076 serving as the master file.
In a June 13, 2016 letter, appellant requested a hearing before a representative of
OWCP’s Branch of Hearings and Review. At the hearing, held February 16, 2017, counsel
asserted that Dr. Macht’s reports established 15 percent permanent impairment of the left upper
extremity. He also contended that the case should be remanded to OWCP to address whether
appellant’s condition should be assessed using the DBI or the ROM method.
Appellant provided periodic treatment notes from Dr. Andrews dated from July 19, 2016
to January 23, 2017. Dr. Andrews did not address the issue of permanent impairment in these
reports.
By decision dated May 3, 2017, OWCP’s hearing representative affirmed OWCP’s
June 2, 2016 decision, finding that OWCP’s medical adviser properly applied the appropriate
portions of the A.M.A., Guides in finding 10 percent permanent impairment of the left upper
extremity. She further found that there was no probative medical evidence of record establishing
a greater percentage of permanent impairment.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA Program with the Director of OWCP. 10 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.11 FECA, however, does not
specify the manner by which the percentage loss of a member, function or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its
10

See 20 C.F.R. §§ 1.1-1.4.

For a complete loss of use of an arm, an employee shall receive 312 week’s compensation. 5 U.S.C.
§ 8107(c)(1).
11

5

implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.12
The sixth edition of the A.M.A., Guides was first printed in 2008. Within month of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarification and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as erratum/supplement to the first printing
of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).13 The Board has approved the use of OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.14
ANALYSIS
The issue on appeal is whether appellant sustained greater than 10 percent permanent
impairment of the left upper extremity, for which she previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.15
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.16 In T.H., the Board concluded that OWCP physicians
were at odds over the proper methodology for rating upper extremity impairment, having
observed attending physicians, evaluating physicians, second opinion physicians, impartial
medical examiners, and district medical advisers use both DBI and ROM methodologies
interchangeably without any consistent basis. Furthermore, the Board observed that physicians
interchangeably cited to language in the first printing or the second printing when justifying use
of either ROM or DBI methodology. Because OWCP’s own physicians were inconsistent in the

12

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

13

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 Award and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
14

Isidoro Rivera, 12 ECAB 348 (1961).

15

T.H., Docket No. 14-0943 (issued November 25, 2016).

16

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

6

application of the A.M.A., Guides, the Board found that OWCP could no longer ensure
consistent results and equal justice under the law for all claimants.17
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the May 3, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied uniformly,
and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for an upper extremity schedule award.18
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 3, 2017 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: December 15, 2017
Washington, DC

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

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

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

17

Supra note 14.

18

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
FEDERAL JUDICIARY, U.S. DISTRICT
COURT -- EAST NY, Brooklyn, NY, Employer
__________________________________________

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

Docket No. 17-0407
Issued: May 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 5, 20161 appellant filed a timely appeal from a June 9, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between the last merit decision dated January 5, 2015 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from June 9, 2016, the date of OWCP’s last decision, is
December 6, 2016. Since using December 19, 2016, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is December 5, 2016, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the
decision. 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
the request was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 27, 2014 appellant, then a 51-year-old career law clerk, filed a traumatic
injury claim (Form CA-1) alleging that on February 10, 2014 she tripped and broke her right
hand wrist bone. She stopped work on February 10, 2014 and returned to work on
February 18, 2014. By decision dated April 23, 2014, OWCP accepted the claim for right wrist
fracture.
On November 21, 2014 appellant filed a claim for a schedule award (Form CA-7).
By letter dated December 2, 2014, OWCP requested that appellant submit a report from
her attending physician addressing her work-related condition, the date of maximum medical
improvement (MMI), objective findings, subjective complaints, and an impairment rating
rendered according to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009) (A.M.A., Guides).4 Appellant was afforded 30 days to
provide the requested information. She did not respond.
By decision dated January 5, 2015, OWCP denied appellant’s claim for a schedule award
as the evidence was insufficient to establish that she sustained permanent impairment of a
scheduled member or function of the body.
By letter dated January 8, 2015, received January 26, 2015, appellant informed OWCP
that she was requesting an extension of time to submit a report from her physician in support of
her claim as she was unable to obtain an appointment with her physician until January 6, 2015.
In a January 6, 2015 medical report, Dr. Brian Mehling, a Board-certified orthopedic
surgeon, reported that appellant sustained a right wrist fracture in February 2014. He provided
examination findings and noted his review of diagnostic testing. Dr. Mehling opined that
appellant had reached MMI on January 6, 2015. He noted significant decreased range of motion
in all planes of the right wrist as well as supination and pronation. Dr. Mehling further found
decreased strength, atrophy, and ankyloses of the right wrist with subjective complaints of pain
and discomfort. He concluded that appellant had 50 percent permanent impairment of her right
wrist.
By letter dated February 9, 2016, appellant reported that she had requested
reconsideration of her claim in February 2015, but had not heard back from OWCP.
By letter dated March 7, 2016, appellant reported that she had not received any updates
on her schedule award claim. She summarized telephone calls and letters previously sent to
OWCP regarding the status of her claim, as well as reconsideration requests which she had
4

A.M.A., Guides (2009).

2

timely submitted. Appellant provided attachments documenting the prior letters and telephone
calls made to OWCP.
By decision dated June 9, 2016, OWCP denied appellant’s reconsideration request as it
was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
OWCP regulations provide that to be entitled to a merit review of an OWCP decision, an
application for reconsideration must be received by it within one year of the date of OWCP’s
decision for which review is sought.5
OWCP, however, may not deny an application for review solely because the application
was untimely filed. It may consider an untimely application for reconsideration if the evidence
or argument contained in the reconsideration request demonstrates clear evidence of error on the
part of OWCP.6 In this regard, OWCP will conduct a limited review of how the newly submitted
evidence bears on the prior evidence of record.7 Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error.8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must
manifest on its face that OWCP committed an error.9 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.10 The evidence submitted
must not only be of sufficient probative value to create a conflicting medical opinion or establish
a clear procedural error, but must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of
OWCP’s decision.11
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.12

5

20 C.F.R. § 10.607.

6

See id. at § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

Nelson T. Thompson, 43 ECAB 919 (1992).

8

Jimmy L. Day, 48 ECAB 652 (1997).

9

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

10

Leona N. Travis, 43 ECAB 227, 240 (1991).

11

Annie L. Billingsley, 50 ECAB 210 (1998).

12

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

3

ANALYSIS
The Board finds that this case is not in posture for decision because OWCP erroneously
adjudicated appellant’s request for reconsideration under the clear evidence of error standard.
When appellant initially filed her claim for a schedule award she did not submit any
medical evidence in support of a schedule award. By letter dated January 8, 2015, appellant
provided new evidence in the form of an impairment rating from her treating physician with
regard to her schedule award claim. Dr. Mehling’s January 6, 2015 medical report provided
findings on physical examination and review of diagnostic testing. He reported that appellant
had reached MMI and was entitled to an award for 50 percent permanent impairment of the right
wrist.
In its June 9, 2016 decision, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It found that
her reconsideration request was received on March 18, 2016. The Board notes that appellant
submitted new evidence from Dr. Mehling addressing impairment as of January 26, 2015, the
date her January 8, 2015 letter was received. The Board has held that a claimant may request a
schedule award or increased schedule award at any time based on evidence of new exposure or
medical evidence showing the progression of an employment-related condition resulting in
permanent impairment or increased impairment.13 Dr. Mehling opined that appellant had
reached MMI and provided an impairment rating for the right wrist.
As in the case Paul R. Reedy, the June 9, 2016 decision treated appellant’s claim as a
request for reconsideration. The Board finds, however, that she was not seeking reconsideration
of the previous schedule award determination. Rather, appellant submitted new evidence
showing increased impairment of the right upper extremity.14 OWCP’s procedures provide that
if a claimant is seeking an increased schedule award due to increased impairment and/or
additional exposure, but not contesting the decision or prior award, this should not be treated as a
reconsideration request and OWCP should develop the issue of entitlement to an additional
award.15
The Board thus finds that OWCP improperly denied appellant’s request for
reconsideration under the clear evidence of error standard and failed to issue an appropriate
decision regarding appellant’s claim for an increased schedule award.16 On remand OWCP
should review and develop the medical evidence and issue a de novo decision regarding
appellant’s claim for a schedule award.

13

Id.

14

J.F., Docket No. 13-112 (issued November 6, 2013).

15

The Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)
(February 2016).
16

E.T., Docket No. 13-1691 (issued September 25, 2013).

4

CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the June 9, 2016 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision of the Board.
Issued: May 24, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 16-0619
Issued: June 14, 2016

Case Submitted on the Record

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

JURISDICTION
On February 15, 2016 appellant, through counsel, filed a timely appeal from a
February 1, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
The most recent merit decision was that of the Board dated January 27, 2015. A decision of the
Board is final upon the expiration of 30 days from the date of the decision. 20 C.F.R. § 501.6(d).
OWCP has not issued a merit decision since the Board’s January 27, 2015 merit decision. As the
February 1, 2016 decision is the only decision issued within 180 days of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On November 16, 2009 appellant, then a
47-year-old carpenter, sustained lower back, right shoulder, right leg, and left hand injuries when
he slipped on water and fell down stairs that day. OWCP accepted the claim on July 6, 2010 for
contusion of left hand, sprain of left hand, left shoulder and upper arm sprain acromioclavicular,
contusion of right hip and thigh, right knee and leg sprain, neck sprain, and lumbar sprain.
Appellant stopped work on November 16, 2009 and received wage-loss compensation through
July 14, 2011. He began receiving medical treatment on December 2, 2010 from Dr. Gerald
Dworkin, Board-certified in physical medicine and rehabilitation.
In an October 29, 2013 decision, the Board affirmed OWCP’s January 7, 2013 merit
decision finding that appellant failed to establish that he was disabled for the period July 15 to
November 30, 2011 due to his November 16, 2009 employment injury.2 The Board found that
the opinion of Dr. Andrew J. Gelman, a Board-certified orthopedic surgeon, was entitled to
special weight as the impartial medical examiner which established that appellant was not
entitled to disability compensation from July 15 to November 30, 2011 because his
November 16, 2009 employment injuries had resolved.
On May 1, 2014 appellant, through counsel, requested reconsideration of the October 29,
2013 decision and submitted an April 24, 2014 medical report from Dr. Dworkin in support of
appellant’s claim.
By decision dated July 29, 2014, OWCP affirmed the October 29, 2013 decision, finding
that appellant failed to establish that he was disabled due to his November 16, 2009 employment
injury for the period July 15 to November 30, 2011.
On August 19, 2014 appellant again requested an appeal before the Board. By decision
dated January 27, 2015, the Board affirmed OWCP’s July 29, 2014 decision finding that
appellant failed to establish that he was disabled due to his November 16, 2009 employment
injuries for the period July 15 to November 30, 2011.3 The findings and facts as set forth in the
prior Board decisions are incorporated herein by reference.
Following the Board’s January 27, 2015 merit decision appellant, through counsel,
requested reconsideration. Appellant’s request for reconsideration was dated and received by
OWCP on January 26, 2016. Counsel submitted a January 25, 2016 medical report from
Dr. Dworkin in support of appellant’s request for reconsideration.
In his January 25, 2016 report, Dr. Dworkin reported that the L5-S1 disc herniation was
post-traumatic in nature with significant narrowing of appellant’s bilateral, lateral recess region
of the spine, causing him significant back pain with sitting, standing, and walking. As a result,
2

Docket No. 13-737 (issued October 29, 2013).

3

Docket No. 14-1822 (issued January 27, 2015). Absent further merit review of the issue by OWCP, the issue is
res judicata and is not subject to further review. See C.M., Docket No. 15-471 (issued April 27, 2015); Clinton E.
Anthony, Jr., 49 ECAB 476 (1998).

2

appellant was incapable of working and unable to return to work. Dr. Dworkin explained that
due to the severe nature of back, buttock, and leg pain, he ordered physical therapy treatment for
appellant from July 15 to November 30, 2011. He diagnosed traumatic low back pain with
persistent and recurrent right greater than left sciatica secondary to traumatic disc herniation at
L4-5 and L5-S1 as seen on a magnetic resonance imaging (MRI) scan, and associated
radiculopathies including L5-S1 radiculopathy as seen on electromyography (EMG) studies.
Dr. Dworkin opined with a reasonable degree of medical certainty that appellant’s listed
diagnoses were a result of the November 16, 2009 work-related fall.
Dr. Dworkin further opined that appellant continued to have severe back and leg pain and
was unable to work between July 15 and November 11, 2011 while he was attending physical
therapy. He stated that appellant’s inability to work was secondary to the work-related injury,
including back pain with severe sciatica and traumatic disc herniation at L4-5 and L5-S1,
complicated by bilateral L5-S1 radiculopathy. Dr. Dworkin noted that appellant was followed
closely and had not had sufficient rehabilitation to return to employment prior to his discharge
from therapy on November 30, 2011. He opined that returning to work would have been
hazardous and would lead to a high likelihood of recurrent and severe back and leg pain, as well
as the possible need for surgical intervention.
Dr. Dworkin noted that there was
miscommunication from his prior note which indicated that he had released appellant to full duty
on July 15, 2011. He stated that this was a clerical error and should have read as scheduled for
continued aggressive therapy on July 15, 2011.
By decision dated February 1, 2016, OWCP denied appellant’s request for
reconsideration, finding that he neither raised substantive legal questions nor included new and
relevant evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
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 Section 10.608(b) of OWCP regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.5
ANALYSIS
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.

4

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

5

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

3

The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In his application for reconsideration, counsel for appellant did not show that OWCP erroneously
applied or interpreted a specific point of law. He did not advance a new and relevant legal
argument. Counsel for appellant argued that Dr. Dworkin’s January 25, 2016 report established
appellant’s claim for disability compensation. The underlying issue in this case was whether
appellant was experiencing any residuals or disability of the November 16, 2009 employment
injury for the period July 15 to November 30, 2011. That is a medical issue which must be
addressed by relevant medical evidence.6 Appellant, however, failed to submit pertinent new
and relevant medical evidence in support of his claim.
The only medical evidence submitted was Dr. Dworkin’s January 25, 2016 report. The
Board notes that the report is identical in every way to his previously submitted April 24, 2014
report which was considered by the Board in its January 27, 2015 decision.7 The only difference
from the prior report is that the date of the report was changed to January 25, 2016. As the
medical report repeats evidence already in the case record, it is duplicative, and does not
constitute relevant and pertinent new evidence. Material which is duplicative of that already
contained in the case record does not constitute a basis for reopening a case.8 A claimant may
obtain a merit review of an OWCP decision by submitting pertinent new and relevant evidence.
In this case, appellant failed to submit any pertinent new and relevant evidence addressing
continued disability.9
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
present relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.10
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

6

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

7

Supra note 4.

8

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

9

M.H., Docket No. 13-2051 (issued February 21, 2014).

10

P.H., Docket No. 15-1383 (issued October 5, 2015).

4

ORDER
IT IS HEREBY ORDERED THAT the February 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 14, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, ROBINS AIR FORCE
BASE, GA, Employer
__________________________________________

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

Docket No. 11-1676
Issued: February 6, 2012

Case Submitted on the Record

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

JURISDICTION
On July 12, 2011 appellant filed a timely appeal from the June 24, 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 merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $2,402.41 overpayment of
compensation; and (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on December 22, 2009 appellant, then a 42-year-old medical
technologist, sustained an aggravation of cervical spondylosis without myelopathy, aggravation
of brachial neuritis or radiculitis and right carpal tunnel syndrome due to a fall at work.
Appellant received compensation for periods of total disability and underwent right carpal tunnel
release surgery on February 22, 2011 which was authorized by OWCP. She returned to full-time
work for the employing establishment on April 17, 2011.
In a May 11, 2011 notice, OWCP advised appellant of its preliminary determination that
she received a $2,402.41 overpayment of compensation because she was paid compensation for
temporary total disability through May 7, 2011 but returned to full-time work for the employing
establishment on April 17, 2011.2 It made a preliminary determination that she was not at fault
in the creation of the overpayment.3 OWCP advised appellant that she could submit evidence
challenging the fact, amount and request waiver of the overpayment. It informed appellant that
she could submit additional evidence in writing or at prerecoupment hearing but that a
prerecoupment hearing must be requested within 30 days of the date of the written notice of
overpayment. OWCP requested that she complete and return an enclosed financial information
questionnaire (Form OWCP-20) within 30 days even if she was not requesting waiver of the
overpayment.
Appellant completed a Form OWCP-20 on May 31, 2011 and requested waiver of the
overpayment.4 She advised that she had $8,259.00 in monthly income comprised of $6,959.00 in
social security benefits and $1,300.00 in other benefits. Appellant reported $8,379.34 in monthly
expenses comprised of $1,722.34 for her house mortgage, $800.00 for food, $250.00 for
clothing, $2,200.00 for utilities, $2,200.00 for “other expenses,” $572.00 for a payment to the
Central Georgia Regional Credit Union (for a $5,175.00 debt), and $635.00 for a payment
towards a Discover loan (in the amount of $9,471.00).5 She listed $800.00 in assets comprised
of amounts in checking and savings accounts and stocks and bonds. Appellant also submitted
numerous financial documents, including statements from her bank accounts between January

2

OWCP provided a calculation showing that appellant received $3,462.00 in compensation for the period
April 10 to May 7, 2011 which equaled $3,184.30 after deductions for medical insurance and dental/vision
coverage. This figure was adjusted to account for the fact that April 10 to 16, 2011 was not part of the overpayment
period, leaving a total overpayment of $2,402.41. The record contains payment documents supporting these
calculations.
3

OWCP indicated that the monies creating the overpayment were directly deposited into appellant’s bank
account and that she did not have an opportunity to return the monies prior to this deposit.
4

Appellant requested that a decision be made on the written evidence of record.

5

Appellant indicated that she was supporting two daughters, 20 and 25 years old and two granddaughters under 3
years old.

2

and May 2011 which included her notations indicating the expenses covered by a number of the
checks she wrote.6
On July 17, 2011 an OWCP claims examiner made an unsuccessful attempt to contact
appellant by telephone to set up a conference to discuss some of the items on her Form
OWCP-20. He left a telephone message for appellant on June 21, 2011, stating that a decision
would be made on the existing record if she did not call back. The record does not indicate that
appellant responded to the message.
In a June 24, 2011 decision, OWCP determined that appellant received a $2,402.41
overpayment of compensation. It found that she was not at fault in the creation of the
overpayment but that the overpayment was not subject to waiver.7 OWCP discussed the
submitted financial information and documentation and found that it did not support a finding
that appellant needed substantially all of her current monthly income to meet current monthly
ordinary and necessary living expenses (i.e., she did not show that monthly expenses exceeded
monthly income by $50.00 or more).8
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of her duty.9 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”10
Section 8116(a) of FECA provides that while an employee is receiving compensation or
if she has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not

6

These documents reveal that, on the average for the several months prior to June 2011, appellant had monthly
expenses of about $50.00 for water, $50.00 for heating gas, $300.00 for electricity, $200.00 for cell telephone
service, and $150.00 for combined home telephone, cable and internet services. Appellant also had monthly
automobile expenses of about $300.00 for an automobile purchase loan, $400.00 for gasoline and $100.00 for
insurance.
7

OWCP directed that appellant repay the overpayment by forwarding a $150.00 payment every month to OWCP.
As recovery from continuing compensation benefits under FECA is not involved in this case, the Board has no
jurisdiction over the amount OWCP determined that appellant should repay each month. Levon H. Knight, 40
ECAB 658, 665 (1989).
8

OWCP discussed its unsuccessful attempts to have appellant provide additional clarification of her expenses.

9

5 U.S.C. § 8102(a).

10

Id. at § 8129(a).

3

receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.11
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $2,402.41 overpayment of compensation. In
the present case, appellant received disability compensation through May 7, 2011 despite the fact
that she returned to full-time work for the employing establishment on April 17, 2011 and was
not entitled to disability compensation after that date. The record contains evidence which
shows that appellant received $2,402.41 in compensation for the period April 18 to May 7, 2011
to which she was not entitled. Therefore, OWCP properly determined that appellant received a
$2,402.41 overpayment.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.12 These statutory
guidelines are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”13 If OWCP finds a claimant to
be without fault in the matter of an overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of her
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.14 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes her position for the

11

Id. at § 8116(a).

12

See Robert Atchison, 41 ECAB 83, 87 (1989).

13

5 U.S.C. § 8129(b).

14

20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio
Martinez, 55 ECAB 245 (2004). OWCP procedure provides that assets must not exceed a resource base of
$4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6(a) (October 2004).

4

worse.15 To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.16
ANALYSIS -- ISSUE 2
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown both that she needs substantially all of her current income to
meet ordinary and necessary living expenses and that her assets do not exceed the allowable
resource base. She reported that she had had $8,259.00 in monthly income and $8,379.34 in
monthly expenses. The Board finds, however, that OWCP properly determined that appellant
did not submit sufficient evidence to support the claimed monthly expenses. For example,
appellant reported $2,200.00 in monthly expenses for utilities, but she submitted documentation
showing that each month she paid about $50.00 for water, $50.00 for heating gas, $300.00 for
electricity, $200.00 for cell telephone service, and $150.00 for combined home telephone, cable
and internet services. Even if the expenses for multiple telephones, cable and internet were
allowed, these expenses would total below the claimed $2,200.00 figure. Appellant listed “other
expenses” of $2,200.00 and provided documentation for monthly expenses of about $800.00 in
this category that were related to automobile expenses. Although she documented other monthly
expenses which would fall under the “other expenses” category, she did not provide sufficient
documentation to establish that the total amount for these expenses as $2,200.00.17 Given
appellant’s failure to document her claimed monthly expenses, the record reflects that her
monthly income well exceeds her monthly expenses.18
As appellant’s current income exceeds her current ordinary and necessary living expenses
by more than $50.00 she has not shown that she needs substantially all of her current income to
meet current ordinary and necessary living expenses.19 Because she has not met the first prong
of the two-prong test of whether recovery of the overpayment would defeat the purpose of
FECA, it is not necessary for OWCP to consider the second prong of the test, i.e., whether
appellant’s assets do not exceed the allowable resource base.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she
would experience severe financial hardship in attempting to repay the debt or that she

15

20 C.F.R. § 10.437(a), (b).

16

Id. at § 10.437(b)(1).

17

Appellant reported monthly expenses of $572.00 for a payment to the Central Georgia Regional Credit Union
(for a $5,175.00 debt) and $635.00 for a payment towards a Discover loan (in the amount of $9,471.00). She did not
submit documentation showing that she was required to pay these amounts each month.
18

The Board notes that OWCP attempted to gain additional information about appellant’s financial situation, but
that appellant did not respond to OWCP.
19

See supra note 14 and accompanying text.

5

relinquished a valuable right or changed her position for the worse in reliance on the payment
which created the overpayment.20
On appeal, appellant alleged that she submitted sufficient financial information and
documentation to show that she would suffer financial hardship if required to repay the
overpayment. However, for the reasons explained above, she did not fully document her claimed
monthly expenses.
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, she has failed to show that
OWCP abused its discretion by refusing to waive the overpayment.
CONCLUSION
The Board finds that appellant received a $2,402.41 overpayment of compensation. The
Board further finds that OWCP did not abuse its discretion by refusing to waive recovery of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the June 24, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

20

See William J. Murphy, 41 ECAB 569, 571-72 (1989).

6