United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Jacksonville, FL,
Employer
__________________________________________

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

Docket No. 13-211
Issued: June 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On November 5, 2012 appellant filed a timely appeal from a May 17, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration as it was untimely filed and did not establish clear evidence of error. As the last
merit decision, August 27, 2002, was issued more than one year prior to the filing of the appeal,1
the Board lacks jurisdiction to review the merits of this case pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and did not demonstrate clear evidence of error.
1

For final adverse decisions of OWCP issued prior to November 19, 2008, a claimant had up to one year to
appeal to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse decisions of OWCP issued on and after
November 19, 2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e)(3).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated November 19, 1999,
the Board reversed December 3 and August 14, 1997 decisions, denying appellant’s occupational
disease claim.3 It found that he had established that he sustained staphylococcus aureus and
dermatitis herpetiformis due to exposure to coliform-positive waste water in the course of his
federal employment. By decision dated August 27, 2002, the Board affirmed an OWCP decision
reducing appellant’s compensation to zero effective August 5, 2001 as he failed to cooperate
with vocational rehabilitation.4The facts and circumstances as set forth in the prior decisions are
hereby incorporated by reference.
OWCP subsequently expanded acceptance of appellant’s claim to include streptococcal
septicemia, contact dermatitis, sebaceous cyst, actinic keratosis and a post-traumatic wound
infection.
On February 16, 2011 appellant, through his senator, requested reconsideration. He
related that he sustained ischemic heart disease due to his post-traumatic wound infection and
that OWCP’s failure to approve prompt treatment worsened his condition. Appellant maintained
that he had shown “good faith effort” under section 8113(b) and disability under FECA. He
related that a June 7, 1996 decision by the Merit Systems Protection Board (MSPB) “offered
reinstatement/reemployment after medical and vocational rehabilitation” but that OWCP did not
assist him with “the means to aid the accomplishment of this settlement offering.” Appellant
indicated that he began vocational rehabilitation services with the State of Florida in 1996.
On February 16, 2011 appellant requested medical benefits for his ischemic heart disease.
In a report dated March 7, 2012, Dr. Rogena Johnson, Board-certified in family medicine,
related, “[Appellant] has a history of stapholococcal skin infection causing septicemia and
chronic recurring abscess formation that he developed as a direct result of exposure to this
bacteria while on the job many years ago. As a result of the septicemia he developed heart valve
damage, severe, leading to congestive heart failure….”5 She discussed his emergency heart
valve replacement and attributed the damage to his heart value to the original bacteria,
methicillin-resistant staphylococcus aureus (MRSA).
On May 1, 2012 appellant requested reconsideration. He maintained that he had
complied with vocational rehabilitation in 2002, as confirmed by Alice Burrows, a rehabilitation
counselor addressing his participation in a program at a state university. Appellant noted that he
3

Docket No. 98-1039 (issued November 19, 1999). On June 5, 1996 appellant, then a 42-year-old former
hydrological technician, filed an occupational disease claim alleging that he sustained staphylococcus aureus and
dermatitis herpetiformis due to factors of his federal employment.
4

Docket No. 02-976 (issued August 27, 2002).

5

In a report dated January 10, 2012, Dr. Johnson related that appellant had undergone “an aortic valve
replacement and tricuspid valve repair, which were severely damaged due to repeated septicemia and endocarditis,
for work[-]related exposure in [the] past and in urgent need of correction when he was hospitalized with sepsis and
pneumonia.”

2

had attended college through a program with the state of Florida from 1997 to 2005 but that
OWCP did not “respond favorably” to the state’s intervention. Hecited OWCP’s procedures
providing that a claimant who subsequently complies with vocational rehabilitation should have
his compensation reinstated. Appellant argued that on June 7, 1996 the MSPB instructed the
employing establishment to comply with reinstatement decision but OWCP did not assist him in
this effort. He further maintained that OWCP did not consider his post-traumatic stress disorder
as diagnosed in October 2004 by Dr. James D.D. Bradley, a clinical psychologist. Appellant
further asserted that OWCP should address “recommendations for medical rehabilitation” made
by Dr. Bharat K. Upadhyay, a Board-certified internist, and Dr. Johnson.6
Appellant resubmitted a letter dated February 6, 2002 from a vocational rehabilitation
counselor. The counselor informed the Florida Department of Education that he was a student at
a state university and had “demonstrated good effort in participating in the rehabilitation
program (1997-present).”
In another letter dated May 1, 2012, appellant related that he was enclosing his claim for
compensation and request for medical services and rehabilitation. On May 7, 2012 he requested
rehabilitation following his heart valve replacement.
In a report dated January 12, 2010, Dr. Upadhyay and Dr. Johnson related that they were
treating appellant for “inflammatory, chronic and debilitating cutaneous outbreaks of
streptococcal dermatitis.”7They found that he was disabled from employment. On May 1, 2012
Dr. Upadhyay diagnosed chronic post-traumatic wound infection, an aortocoronary bypass, a
heart value replacement and mitral valve disorder. In an accompanying state workers’
compensation form, he indicated that appellant’s condition was work related and that he “has
been disabled.”
By decision dated May 17, 2012, OWCP denied appellant’s request for reconsideration as
it was untimely filed and insufficient to establish clear evidence of error.
On appeal, appellant argues that he made a good faith effort to receive medical and
vocational rehabilitation, that his physical and emotional condition interrupted his rehabilitation
and reemployment, that he should still be in federal service and that he is qualified for a “loan or
grant discharge due to OWCP false certification or revocation of intent without proper
notice.”He discussed actions by the employing establishment taken in connection with his work
injury. Appellant related that OWCP did not comply with FECA and repeatedly denied his
“request for medical and vocational rehabilitation.” OWCP did not accept hepatitis B or
folliculitis as instructed by the Board or that he sustained PTSD due to his work injury as found
by Dr. Bradley Appellant asserted that he had to seek rehabilitation through the state because
OWCP denied his claim prior to the Board’s reversal. He participated in the early stages
6

In an October 14, 2003 psychological evaluation, Dr. Bradley evaluated appellant in connection with a state
rehabilitation program. He diagnosed recurrent mild major depressive disorder and an anxiety disorder not
otherwise specified.
7

In a report dated April 19, 2010, Dr. Johnson discussed her treatment of appellant for MRSA with recurrent skin
colonization. She opined that “his current cardiac condition is the direct result of his occupational exposure which
led to bacteremia and valve damage.”

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ofvocational testing in November 1996. Appellant lost his employment in February 1996 and
again received vocational rehabilitation through the State of Florida. He argued that OWCP
erred in referring him to a private rehabilitation counselor for retaliation services since he was
undergoing rehabilitation through the State of Florida. Appellant noted that an MSPB judge
found that he was entitled to compensation.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a) of FECA.8 As once such limitations, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of the
OWCP decision for which review is sought. OWCP will consider an untimely application only
if the application demonstrates clear evidence of error on the part of OWCP in its most recent
merit decision. The application must establish, on its face, that such decision was erroneous.9
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example,
proof of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized
medical report which, if submitted prior to the denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.10 To establish clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by OWCP. The evidence
must be positive, precise and explicit and must manifest on its face that it committed an error.11
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.12 Aright to reconsideration within one year
also accompanies any subsequent merit decision on the issues.13 As appellant’s February 16,
2011 and May 1, 2012 requests for reconsideration were submitted more than one year after the
last merit decision of record, issuedAugust 27, 2002, they were untimely. Consequently, he must
demonstrate clear evidence of error by OWCP in denying his claim for compensation.14

8

Supra note 2.

9

20 C.F.R. § 10.607.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (December 2003).

11

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
12

20 C.F.R. § 10.607(a).

13

Robert F. Stone, supra note 11.

14

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

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Appellant argued that he complied with a state rehabilitation program. He submitted a
2002 letter from a rehabilitation counselor regarding his participation in a state program.
Appellant maintained that this showed that he had complied with vocational rehabilitation. The
Board, however, previously determined that attending college under a state rehabilitation
program did not constitute good cause for failing to cooperate with OWCP’s rehabilitation
efforts. Absent further review of this issue by OWCP pursuant to section 8128, it is res
judicata.15
Appellant additionally argued that the MSPB instructed the employing establishment to
reinstate him but OWCP did not assist him obtaining reemployment. It is well established,
however, that decisions made by other federal agencies or government bodies are not dispositive
of issues raised under FECA. Decisions made by such tribunals are pursuant to different statues
which have varying standards for establishing disability and eligibility for benefits.16
Appellant cited OWCP’s procedures providing that a claimant who subsequently
cooperated with vocational rehabilitation is entitled to have his compensation reinstated. He did
not, however, point to any specific correspondence that he sent agreeing to participate in
vocational rehabilitation through OWCP or directly inform OWCP that he was now willing to
participate in an OWCP-sponsored program.
Appellant argued that OWCP failed to consider that he had post-traumatic stress disorder
as diagnosed in 2004. He did not, however, submit any evidence establishing that he was unable
to participate in vocational rehabilitation in 2001 due to PTSD. Consequently, appellant’s
argument does not show clear evidence of error by OWCP.
Appellant raised numerous arguments regarding expansion of his claim and approving
medical rehabilitation services.
He further generally asserted that he was currently
disabled.Appellant submitted medical evidence from Dr. Johnson and Dr. Upadhyay in support
of his contentions that his claim should be expanded and that he is disabled. The Board’s
jurisdiction, however, is limited to reviewing final decisions of OWCP.17 OWCP has not issued
a final decision onthe issue of claim expansion or disability. Thus, these issues are not before the
Board at this time.
On appeal, appellant asserts that he tried to obtain vocational rehabilitation but his
physical condition interrupted the rehabilitation process. He further explains that he initially
sought vocational rehabilitation through a state program because OWCP denied his claim.
Appellant indicates that he participated in vocational testing in 1996. As discussed, however, the
underlying issue is whether he complied with the early and necessary stages of vocational
rehabilitation as instructed by OWCP. The Board previously found that appellant’s participation
in a state program was not a good reason for failing to cooperate with OWCP’s rehabilitation

15

See Robert G. Burns, 57 ECAB 657 (2006); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

16

See Andrew Fullman, 57 ECAB 574 (2006); Dianna L. Smith, 56 ECAB 524 (2005).

17

20 C.F.R. § 501.2(c).

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efforts. As discussed, absent further review of this issue by OWCP pursuant to section 8128, it is
res judicata.18
Appellant maintains that OWCP denied his repeated requests for further medical and
vocational rehabilitation. He further argues that he is entitled to additional compensation such as
a grant or loan repayment. As discussed, OWCP has not issued a decision on these issues.
Appellant can clearly inform OWCP if he wishes to pursue vocational rehabilitation or request
either expansion of his claim or compensation for disability.
Appellant further argues that OWCP should have accepted hepatitis B and folliculitis
based on the Board’s decision. However, the Board, in its November 19, 1999 decision, did not
determine that he established hepatitis B or folliculitis but rather found staphylococcus aureaus
and dermatitis herpetiformia casually related to factors of his federal employment.
As the evidence submitted by appellant is insufficient to raise a substantial question as to
the correctness of the last merit decision, he has not established clear evidence of error.19
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and did not demonstrate clear evidence of error.

18

See supra note 12.

19

See Veletta C. Coleman, 48 ECAB 367 (1997).

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ORDER
IT IS HEREBY ORDERED THATthe May 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
DeSoto, MO, Employer
__________________________________________

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

Docket No. 15-1188
Issued: November 6, 2015

Case Submitted on the Record

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

JURISDICTION
On May 4, 2015 appellant filed a timely appeal from a November 7, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof to modify a June 9, 2008 loss of
wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
Appellant, a part-time rural carrier associate, was injured in a November 15, 1995 motor
vehicle accident. OWCP accepted the claim for closed sacrum/coccyx fracture, closed pubis
fracture, closed spleen hematoma, closed four rib fractures, closed lumbar vertebra fracture,
1

5 U.S.C. § 8101 et seq.

posthemorrhage anemia, forehead open wound, and foot/toe abrasion.
compensation for temporary total disability on December 31, 1995.

It began paying

By decision dated June 9, 2008, OWCP reduced appellant’s compensation effective
June 10, 2008 as the selected position of cashier/checker (retail trade) represented her wageearning capacity. It found the position was medically and vocationally suitable and reasonably
available in her commuting area. OWCP further found the physical requirements of this job
were within her medical restrictions of lifting up to 30 pounds limited to four hours a day and no
climbing and squatting, occasional twisting and bending/stooping, and change positions
sitting/standing.
This case has previously been before the Board.2 In a July 21, 2010 decision, the Board
found that appellant’s reconsideration request dated May 14, 2009 was a request for modification
of the June 9, 2008 wage-earning capacity determination. The Board remanded the case for
OWCP to adjudicate this issue.3 In a March 6, 2012 decision, the Board affirmed OWCP’s
June 15, 2011 decision finding that appellant had failed to meet her burden of proof to establish a
modification of the June 9, 2008 wage-earning capacity determination.4 The facts of the case
contained in the Board’s prior decisions are incorporated herein by reference.
Appellant again requested modification of the June 9, 2008 loss of wage-earning capacity
decision.
In a February 6, 2014 report, Dr. Paul Maynard, a Board-certified orthopedic surgeon,
noted the history of injury and that appellant had chronic anterior pelvic pain which she stated
had progressively worsened. He noted findings on examination of hip gait antalgic both sides,
full weight bearing no assistive devices, insignificant interval rotation of neither hip nor strength
well maintained. Dr. Maynard also reviewed x-rays which revealed bilateral end stage
osteoarthritis of the hips. The following assessments were provided: arthritis of hip; malunion;
and nonunion of fracture of the pelvis. Dr. Maynard indicated that appellant could proceed with
hip replacement to help with the pain. He further indicated that the malunion and nonunion of
fracture was an ongoing, progressively worsening degeneration. Dr. Maynard opined that this
would continue to worsen with time even if appellant proceeded with surgical treatment of her
hips. He recommended activities as tolerated. Dr. Maynard further opined that appellant was
not capable of working a full-time eight-hour shift given the degree of pathology.
On February 14, 2014 OWCP provided appellant the criteria for modification of a formal
loss of wage-earning capacity decision and provided an explanation as to the deficiencies in
Dr. Maynard’s February 6, 2014 report. It advised that Dr. Maynard’s report did not establish a

2

Docket No. 05-1315 (issued January 24, 2006). In a January 24, 2006 decision, the Board reversed OWCP’s
August 18, 2004 and February 22, 2005 decisions finding that OWCP had improperly reduced appellant’s
compensation to zero for refusal to participate in vocational rehabilitation.
3

Docket No. 10-99 (issued July 21, 2010).

4

Docket No. 11-1603 (issued March 6, 2012). The subject matter reviewed in the Board’s prior decision is res
judicata and is not subject to further consideration. See L.K., Docket No. 14-1722 (issued September 29, 2015).

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change in appellant’s functional ability due to continued residuals of her work-related condition.
Appellant was afforded 30 days to provide medical evidence to meet such criteria.
On March 13, 2014 OWCP received an undated handwritten statement from appellant, a
duplicate copy of Dr. Maynard’s February 6, 2014 report, and a February 11, 2014 note from
Dr. Maynard referring appellant to a physician at Saint Louis University Hospital for her pelvic
fracture malunion.
By decision dated May 8, 2014, OWCP denied modification of the June 9, 2008 loss of
wage-earning capacity determination.
On August 8, 2014 OWCP received appellant’s request for reconsideration of the May 8,
2014 decision. Evidence received in support of the reconsideration request included: one
compact disc of appellant’s spine films; a copy from a medical journal regarding scoliosis-spinal
deformity; her July 31, 2014 statement noting her disagreement with OWCP’s decision and her
explanation of the evidence submitted; a May 15, 2014 note regarding appellant’s appointment
with Dr. John A. Boudreau, a Board-certified orthopedic surgeon.
OWCP also received June 4 and 5, 2014 notes from Dr. Boudreau. Dr. Boudreau
reported that appellant had a history of pelvic right fracture sustained in 1995 that was treated
nonoperatively. Appellant’s injury occurred after a motor vehicle accident while she was on the
job (mail delivery) and was covered by workers’ compensation. Since then she developed a
malunion of her pelvic fracture and had not been able to return to work. Appellant ambulated
with a walker for safety issues because of left leg weakness and feelings of instability. Findings
on examination were provided and review of films showed malunited pelvis with superior
migration of left hemipelvis. Dr. Boudreau opined that appellant could continue activities as
tolerated; that she could not stand for eight hours, and could not return to her previous
occupation. In a June 5, 2014 patient status report, he opined that she was disabled due to her
pelvic fracture nonunion. Dr. Boudreau advised that appellant could not stand for an eight-hour
period and required a walker. A functional capacity evaluation for disability rating was
recommended.
By decision dated November 7, 2014, OWCP denied modification of its May 8, 2014
decision and the June 9, 2008 loss of wage-earning capacity determination.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.5 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6

5

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

6

Sharon C. Clement, 55 ECAB 552 (2004).

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Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
ANALYSIS
OWCP accepted that appellant sustained closed sacrum/coccyx fracture, closed pubis
fracture, closed spleen hematoma, closed four fibula fractures, closed lumbar vertebra fracture,
posthemorrhage anemia, forehead open would, and foot/toe abrasion as a result of a
November 15, 1995 motor vehicle accident. In a June 9, 2008 decision, it adjusted her
compensation to reflect its determination that she was capable of earning wages in the selected
position of cashier-checker (retail trade). The issue is whether appellant established that the
June 9, 2008 LWEC decision should be modified.
Appellant has not argued that she has been retrained or otherwise vocationally
rehabilitated. She argued that there has been a material change in the nature and extent of her
injury-related condition. The medical evidence of record establishes that appellant continues to
suffer residuals of the accepted work injury due to the nonunion or malunion fractures of her
pelvis. However, the medical evidence is insufficient to establish a material change or
worsening of the accepted condition(s), such that she could not perform the duties of the
constructed position. Dr. Maynard, in his February 6, 2014 report, provided an assessment of
end stage arthritis of hip and malunion and nonunion of fracture. He opined that appellant was
not capable of working a full-time eight-hour shift given the degree of pathology, that she needed
a hip replacement, and that the malunion and nonunion of fracture was an ongoing, progressively
worsening degeneration of her pelvic malunion, which would continue to worsen with time. The
Board notes that appellant’s arthritic hip condition has not been accepted by OWCP as causally
related to the 1995 employment injury. To meet her burden of proof, appellant must establish a
change in the work-related condition.9 Dr. Maynard’s statement is speculative in nature as he
does not explain, citing diagnostic findings or examination findings, that her accepted condition
had worsened. He merely states a conclusion.
Dr. Maynard’s opinion does not explain why the work restrictions he notes are due to the
accepted work-related conditions, and he does not explain how appellant’s functional ability due
to her accepted conditions changed. He provides no discussion of the LWEC position and
whether she could perform the duties of the cashier/checker position, which does not require
eight hours of standing.10 For these reasons, Dr. Maynard’s report is of limited probative value
and is insufficient to establish modification of the LWEC determination.
7

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375 (2000).

8

Id.

9

W.W., Docket No. 11-1248 (issued April 17, 2012).

10

Id.

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In his medical reports dated June 4 and 5, 2014, Dr. Boudreau noted that, after the
November 15, 1995 work injury, appellant developed malunion of the pelvic fracture. This
condition was considered when appellant was rated for a cashier/checker position in the June 9,
2008 LWEC decision. Dr. Boudreau also noted that appellant was walking with a cane and
required a walker, but he offered no explanation, supported by objective findings, that gait
assistance was required due to a material change or worsening of the accepted work conditions,
rather than her other nonwork-related conditions. Furthermore, he also did not explain how her
functional ability had changed such that she could not perform the duties of the cashier/checker
position. While Dr. Boudreau recommended that appellant undergo a functional capacity
evaluation, there is no indication that she underwent such an evaluation. For these reasons, his
reports are insufficient to modify OWCP’s wage-loss decision.
The other evidence of record is insufficient to support either the original loss of
wage-earning capacity decision was erroneous or that there had been a material change in the
nature and extent of appellant’s injury-related condition.
Appellant has failed to meet her burden of proof to establish a material change in the
nature and extent of her injury-related condition, that the original determination was in fact
erroneous, or that she was vocationally rehabilitated. She failed to establish that the June 9, 2008
loss of wage-earning capacity decision should be modified.
On appeal, appellant argues the current medical evidence of record supports that her
malunion pelvic condition had worsened and she is totally disabled. For the reasons noted, the
Board finds that she did not meet her burden of proof.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to modify the June 9,
2008 LWEC determination.

5

ORDER
IT IS HEREBY ORDERED THAT the November 7, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, BURLINGTON POST
OFFICE, Burlington, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0944
Issued: March 23, 2022

Case Submitted on the Record

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

On June 1, 2021 appellant filed a timely appeal from a January 13, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as 21-0944.
On February 4, 2016 appellant, then a 54-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injuries on January 20, 2016 when she fell down
steps while delivering mail. OWCP accepted the claim for contusion of right hip, contusion of left
hip, left side lumbago with sciatica, left hip trochanteric bursitis, and lumbar intervertebral disc
displacement. It authorized lumbar spinal decompression surgery, which occurred on
December 15, 2016. OWCP paid appellant wage-loss compensation intermittently on the
supplemental rolls and on the periodic rolls from May 28, 2016 until January 4, 2019.
In a report dated June 17, 2019, Dr. Mark Dumonski, a Board-certified orthopedic surgeon,
diagnosed left sacroiliac joint dysfunction and status post L3-4 decompression and fusion. He
opined that appellant had 30 percent permanent impairment of her back, which was based upon 25
percent permanent impairment for L3-4 fusion and 5 percent permanent impairment of the left
sacroiliac joint.
On September 3, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.

On September 18, 2019 OWCP referred appellant to Dr. Chason S. Hayes, a Boardcertified orthopedic surgeon, for a permanent impairment rating. In a report dated October 11,
2019, Dr. Hayes diagnosed lumbar radiculopathy. He found appellant was at maximum medical
improvement (MMI). Using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), he found that appellant had an eight
percent permanent impairment of the lumbar spine. In an addendum dated November 5, 2019,
Dr. Hayes noted that he had been requested to recalculate appellant’s permanent impairment based
upon her peripheral nerve impairment. He concluded that under this method, as appellant had no
motor or sensory deficits she had zero percent permanent impairment.
In a report dated December 10, 2019, Dr. Arthur Harris, a Board-certified orthopedic
surgeon serving as the district medical adviser (DMA), noted his disagreement with Dr. Hayes’
October 11, 2019 impairment rating for lumbar spine impairment as this permanent impairment
rating was not based on The Guides Newsletter Rating Spinal Nerve Extremity Impairment Using
the Sixth Edition (July/August 2009) (The Guides Newsletter) for rating spinal nerve impairments.
He explained that appellant did not have any neurologic deficit causing sensory or motor loss,
therefore she had a Class 0 placement using Table 2 of The Guides Newsletter resulting in zero
percent lower extremity permanent impairment, due to her lumbar radiculopathy.
By decision dated December 30, 2019, OWCP denied appellant’s claim for a schedule
award as the medical evidence of record was insufficient to support an impairment to a member or
function of the body.
In a report dated November 20, 2020, Dr. Dumonski diagnosed left sacroiliac joint
dysfunction. He explained that appellant’s 30 percent permanent impairment rating was based
upon her sacroiliac joint dysfunction, which caused pain to extend into her left leg.
On January 5, 2021 OWCP received appellant’s request for reconsideration of the
December 30, 2019 decision.
By decision dated January 13, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
The Board finds that OWCP did not make findings regarding the evidence appellant
submitted in support of the reconsideration request. 1 OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirement of FECA a nd its implementing
regulations.2 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
1
See R.C., Order Remanding Case, Docket No. 20-1671 (issued May 6, 2021); J.K., Order Remanding Case,
Docket No. 20-0556 (issued August 13, 2020); C.D., Order Remanding Case, Docket No. 20-0450 (issued August 13,
2020); T.B., Order Remanding Case, Docket No. 20-0426 (issued July 27, 2020).
2

See M.G., Docket No. 21-0893 (issued December 27, 2021); Order Remanding Case, W.D., Docket No. 20-0859
(issued November 20, 2020); Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); Order
Remanding Case, T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607(b).

2

a finding of fact and make an award for or against payment of compensation. 3 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and
facts and a statement of reasons. 4 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.5
In the January 13, 2021decision, OWCP did not reference or consider the November 20,
2020 medical report of Dr. Dumonski that appellant submitted in support of her request for
reconsideration. It failed to analyze this evidence. OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirements of FECA and its
implementing regulations. 6 Section 8124(a) of FECA provides that OWCP shall determine and
make a finding of fact and make an award for or against payment of compensation. 7 Its regulations
at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of
fact and a statement of reasons. 8 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it. 9
The Board will therefore set aside OWCP’s January 13, 2021 decision and remand the case
for an appropriate decision on appellant’s reconsideration request, which considers the evidence
submitted. Accordingly,

3

5 U.S.C. § 8124(a).

4

20 C.F.R. § 10.126.

5

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).
6

See C.G., supra note 2; T.P., supra note 2; see also 20 C.F.R. § 10.607(b).

7

5 U.S.C. § 8124(a).

8

20 C.F.R. § 10.126.

9

Supra note 5.

3

IT IS HEREBY ORDERED THAT the January 13, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 23, 2022
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, EVANSVILLE POST
OFFICE, Evansville, WI, Employer
__________________________________________

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

Docket No. 21-1077
Issued: March 16, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On July 6, 2021 appellant filed a timely appeal from a June 25, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 21
percent permanent impairment of her left upper extremity for which she previously received
schedule award compensation.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 25, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 25, 2012 appellant, then a 48-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she felt sharp pain in her upper left arm causally related
to factors of her federal employment including delivering mail and telephone books on May 22
and 23, 2013. OWCP initially accepted the claim for left rotator cuff strain. By decision dated
April 20, 2015, it expanded the acceptance of appellant’s claim to include other maladies of the
left shoulder region not elsewhere classified and calcifying tendinitis of left shoulder. OWCP paid
her wage-loss compensation on the supplemental rolls from February 18 through June 26, 2015.
Appellant retired effective April 30, 2015.
On July 7 and November 17, 2015 appellant filed claims for compensation (Form CA-7)
for a schedule award.
By decision dated June 13, 2016, OWCP granted appellant a schedule award for three
percent permanent impairment of the left upper extremity based upon the findings of appellant’s
attending physician, Dr. Peter Szachnowski, a rheumatologist, and the district medical adviser
(DMA). The period of the award was for 9.36 weeks and ran from February 24 through
April 29, 2016.
On July 5, 2016 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. By decision dated November 2, 2016, OWCP’s hearing
representative set aside the June 13, 2016 decision. The hearing representative found that OWCP’s
DMA failed to identify either the date of the report or the examination findings which he used to
calculate appellant’s permanent impairment, and date of maximum medical improvement (MMI).
By decision dated February 10, 2017, OWCP granted appellant a schedule award for an
additional two percent permanent impairment for a total of five percent left upper extremity
permanent impairment. The award was for 6.24 weeks and ran from April 30 to June 12, 2016.
On April 12, 2017 appellant requested reconsideration and submitted additional reports
from Dr. Szachnowski dated February 17 and April 3, 2017, which related appellant’s current
examination findings.
By decision dated July 11, 2017, OWCP denied appellant’s request for reconsideration of
the merits of the claim.
On August 7, 2017 appellant filed a timely appeal to the Board. By decision dated
August 3, 2018, the Board affirmed OWCP’s February 10, 2017 merit decision, finding that the
evidence of record was insufficient to establish that appellant had greater than five percent
permanent impairment of her left upper extremity for which she previously received a schedule
3

Docket No. 17-1732 (issued August 3, 2018).

2

award. The Board, however, set aside OWCP’s July 11, 2017 nonmerit decision, finding that the
additional reports from Dr. Szachnowski, dated February 17 and April 13, 2017, constituted
pertinent new and relevant evidence warranting further merit review. The case was remanded for
further proceedings to be followed by a de novo decision.4
By decision dated May 8, 2019, OWCP granted appellant a schedule award for “an
additional” 16 percent left upper extremity permanent impairment for a total of 21 percent
permanent impairment of the left upper extremity. The award was for 49.92 weeks and ran for the
period April 15, 2019 through March 29, 2020.
On October 8, 2020 appellant filed a Form CA-7 claiming an increased schedule award.
In an October 13, 2020 development letter, OWCP acknowledged receipt of appellant’s
claim for an increased schedule award, noting that additional medical evidence was required to
determine permanent impairment utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 It afforded her 30 days to
provide the requested information.
In a November 6, 2020 statement, appellant indicated that she visited Dr. Szachnowski for
injections in each shoulder to help alleviate the pain and to increase the mobility in her neck and
shoulder region. She also noted the symptomatology in her shoulders, which caused pain in the
shoulder/neck region.
OWCP received progress reports dated May 7, 2019 through December 18, 2020, wherein
from Dr. Szachnowski noted that appellant underwent subacromic injections for primary localized
osteoarthrosis, chronic tendinopathy, impingement phenomena and chronic rotator cuff
dysfunction in both shoulders. In the May 7, 2019 report, Dr. Szachnowski opined that appellant
was 30 percent “disabled.”
In a November 3, 2020 letter, Dr. Szachnowski indicated that appellant reached MMI in
January 2014 and was 30 percent “disabled” according to state workers’ compensation guidance.
He noted the rating was based on full internal and external rotation, full abduction, and 45 degrees
flexion because of pain and physical inability, i.e., motor abnormality.
On March 8, 2021 OWCP referred the record, including a statement of accepted facts
(SOAF), to Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving as a DMA. In a
March 19, 2021 report, Dr. Hammel indicated that the most recent clinical examination notes from
Dr. Szachnowski indicated that appellant had continued left shoulder pain. He noted that the
magnetic resonance imaging (MRI) scan of appellant’s left shoulder was normal and that prior
treatments included medication and activity modification. Dr. Hammel indicated that appellant
reached MMI on November 3, 2020. He indicated that a permanent impairment based on range of
motion (ROM) methodology could not be calculated as Dr. Szachnowski had not documented
formal examination findings and had not provided triplicate measurements. Under the diagnosis4

Id.

5

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

3

based impairment (DBI) methodology of the A.M.A., Guides, he opined that appellant had two
percent permanent left upper extremity impairment. Dr. Hammel assigned a class of diagnosis
(CDX) of 1, grade C with a default value of three percent for impingement syndrome, residual loss
under Table 15-5.6 He assigned grade modifier adjustments as follows: grade modifier for
functional history (GMFH) of 1 for continued pain; grade modifier for clinical studies (GMCS) of
0 for normal MRI; and found that grade modifier for physical examination (GMPE) was not
applicable as no formal examination was provided. Dr. Hammel explained that application of the
net adjustment formula resulted in a finding of -1 or grade B, which was equivalent to 2 percent
left upper extremity permanent impairment. He indicated that Dr. Szachnowski did not provide
calculations to support his impairment, which was rated under state workers’ compensation
guidance, in his November 3, 2020 report.7
By decision dated April 21, 2021, OWCP denied appellant’s claim for an increased
schedule award, finding that she was not entitled to greater than the 21 percent permanent
impairment of the left upper extremity previously awarded. It accorded the weight of the medical
evidence to its DMA’s report of March 19, 2021.
On June 15, 2021 appellant requested reconsideration.
In a letter of even date, she argued that she deserved additional compensation based on her
chronic shoulder pain, which affected her everyday routine and did not allow her to work.
Dr. Szachnowski’s progress notes dated December 18, 2020 and June 1, 2021 were
received. In the June 1, 2021 progress note, he reported that appellant essentially had chronically
torn rotator cuffs and was undergoing therapy/injections. Dr. Szachnowski indicated that both
shoulders have painful impingement phenomena, which were symptomatic with decreased ROM
on abduction.
In a June 1, 2021 letter, Dr. Szachnowski indicated that appellant has an incurable
condition consisting of rotator cuff tendinopathy with tears in rotator cuffs and inability to abduct
the shoulders above the left and right shoulder level. He indicated that she has reached MMI and
had committed to periodic injection of her shoulders, which would be life-long with no expectation
of change. Dr. Szachnowski indicated that appellant was previously granted a schedule award for
21 percent permanent impairment. He advised that appellant’s pain was a significant impairment,
which affected her activities of daily living and which permanently affected her ability to lift,
carry, elevate, lie on, and use her shoulders above her head.
By decision dated June 25, 2021, OWCP denied modification.

6

Under Table 15-5 a Class 1, grade C impingement syndrome with residual loss has a default value of three percent.

7

OWCP received duplicative medical evidence following the DMA’s report.

4

LEGAL PRECEDENT
The schedule award provisions of FECA,8 and its implementing federal regulation, 9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 10 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 11
A claimant may seek an increased schedule award if the evidence establishes that he or she
sustained an increased impairment causally related to an employment injury. 12 The medical
evidence must include a detailed description of the permanent impairment. 13
Regarding the application of ROM or DBI impairment methods in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)
***
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Chapter 3.700.2 and Exhibit 1 (January 2010).
12

See T.W., Docket No. 20-1547 (issued October 4, 2021).

13

See K.F., Docket No. 18-1517 (issued October 9, 2019).

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should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM, where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 15
ANALYSIS
The Board finds that appellant has not established greater than 21 percent permanent
impairment of the left upper extremity for which she previously received schedule award
compensation.
Preliminarily, the Board notes that findings made in its prior decision are res judicata
absent any further review by OWCP under section 8128 of FECA. 16 The Board, therefore, will
not review the evidence addressed in its prior appeal.
Following the Board’s August 3, 2018 decision, by decision dated May 8, 2019, OWCP
granted appellant a schedule award for an additional 16 percent left upper extremity permanent
impairment for a total of 21 percent permanent impairment of the left upper extremity. Appellant
subsequently filed a claim for an increased schedule award and submitted additional reports from
Dr. Szachnowski.
Dr. Szachnowski opined, in his May 7, 2019 report and November 3, 2020 letter, that
appellant was 30 percent “disabled.” In his November 3, 2020 letter, Dr. Szachnowski indicated
that appellant reached MMI in January 2014. Under state workers’ compensation guidance, he
opined appellant had 30 percent “disability” based on examination findings of full internal and
external rotation, full abduction and 45 degrees flexion because of pain and physical inability, i.e.,
motor abnormality. In its October 13, 2020 development letter, OWCP had advised appellant that
the evidence should support an increased permanent impairment under the sixth edition of the
A.M.A., Guides. Dr. Szachnowski, however, failed to provide an opinion on permanent
impairment based on the sixth edition A.M.A., Guides.17 Thus, Dr. Szachnowski’s impairment
14

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

15

Supra note 13.

16

M.S., Docket No. 20-0276 (issued September 15, 2021); G.W., Docket No. 19-1281 (issued December 4, 2019);
Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
17

M.A., Docket No. 19-1732 (issued September 9, 2020); L.C., Docket No. 19-0564 (issued September 16, 2019).

6

rating lacks probative value and is insufficient to establish appellant’s claim for an increased
schedule award.
OWCP routed Dr. Szachnowski’s reports and letter to its DMA, Dr. Hammel.18 In a
March 19, 2021 report, Dr. Hammel properly determined that appellant had two percent permanent
left upper extremity permanent impairment under the DBI rating methodology for impingement
syndrome, residual loss. Regarding appellant’s rating under the ROM methodology, Dr. Hammel
found that Dr. Szachnowski had not conducted a formal examination and had not provided
triplicate ROM measurements.
As there is no evidence establishing greater than 21 percent permanent impairment of the
left upper extremity, the Board finds that OWCP properly denied appellant’s claim for an increased
schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 16, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

18

Supra note 13 at Chapter 2.808.6(e) (March 2017); see also A.K., Docket No. 19-1927 (issued March 31, 2021);
K.S., Docket No. 20-1397 issued March 19, 2021); Tommy R. Martin, 56 ECAB 273 (2005).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CANANDAIGUA VETERANS
ADMINISTRATION MEDICAL CENTER,
Canandaigua, NY, Employer
__________________________________________

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Appearances:
James A. Meserve, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-761
Issued: November 1, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 22, 2012 appellant, through her attorney, filed a timely appeal of the
October 19, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a back injury in the
performance of duty on May 25, 2010, as alleged.
On appeal, counsel contends that the factual and medical evidence of record is sufficient
to establish that appellant sustained an employment-related back injury on May 25, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 28, 2010 appellant, then a 38-year-old practical nurse, filed a traumatic injury
claim alleging that on May 25, 2010 she experienced acute back pain with sciatica as a result of
helping a patient get into bed. She stopped work on May 28, 2010.
By letter dated June 14, 2010, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she submit factual and medical evidence,
including a rationalized medical opinion from an attending physician describing a history of
injury, all prior industrial and nonindustrial injuries to her back and providing a firm diagnosis,
findings, symptoms, test results, treatment, prognosis, period and extent of disability with an
explanation as to how the May 25, 2010 incident caused or aggravated her medical condition.
In a May 26, 2010 prescription note, Dr. Christopher D’Angelo, a Board-certified
internist, ordered physical therapy to treat appellant’s back pain.
In medical reports dated May 26 through July 12, 2010, Dr. Thomas W. Witmer, a
Board-certified internist, obtained a history that, after appellant lifted a patient weighing
approximately 500 pounds at work on May 25, 2010, she had pain in the left low back radiating
into the left buttock and down to the left leg and foot with numbness. It was aggravated by
changing positions or walking. Dr. Witmer listed physical examination findings and diagnosed
acute low back pain with some degree of sciatica and left lumbar radiculopathy. He advised that
the diagnosed conditions were caused by the history of injury. Dr. Witmer further advised that
appellant was temporarily totally disabled as of May 26, 2010. In a July 6, 2010 prescription, he
stated that she remained temporarily totally disabled. In a July 14, 2010 report, Dr. Witmer
again noted that appellant’s acute low back pain with some degree of sciatica was caused or
aggravated by the May 25, 2010 incident.
By letter dated July 2, 2010, the employing establishment controverted appellant’s claim,
contending that on May 25, 2010 she intentionally injured herself and refused assistance based
on accompanying witness statements from her coworkers. It noted that her prior claim for an
April 3, 2010 injury was denied by OWCP due to a lack of supportive medical documentation.2
The employing establishment contended that appellant received proper training regarding lifting
procedures and, thus, she acted negligently on the date of injury.
In a July 21, 2010 decision, OWCP denied appellant’s claim. It found that the evidence
was insufficient to establish that the May 25, 2010 incident occurred as alleged.
On August 10, 2010 appellant requested a review of the written record by an OWCP
hearing representative.
In a May 26, 2010 report, Dr. D’Angelo listed a history that on May 25, 2010 appellant
developed an onset of acute low back pain with radiation in the left leg after transferring a 500pound patient at work. He listed findings on physical examination and diagnosed acute onset of

2

Appellant filed a claim for a back injury she sustained on April 3, 2010 under OWCP File No. xxxxxx929.

2

low back pain with some degree of sciatica. Dr. D’Angelo advised that appellant was totally
disabled for work.
On August 9, 2010 Dr. David L. Hamilton, a Board-certified internist, reported that after
lifting a 497-pound patient at work on May 25, 2010 appellant developed left-sided low back
pain radiating down the left leg to the left foot. Appellant’s pain was aggravated by standing and
sitting too long. She could not lie on her back. Dr. Hamilton listed physical and neurological
examination findings and advised that appellant was totally disabled from performing her regular
work duties. He further advised that her injury was caused by the history of injury.
In a prescription dated September 2, 2010, Dr. Witmer advised that appellant remained
temporarily totally disabled. In reports dated September 14 and 17 and October 12, 2010, he
reiterated his opinion that her acute low back pain with some degree of sciatica and left lumbar
radiculopathy were caused or aggravated by the May 25, 2010 incident and she was disabled. In
a November 11, 2010 report, Dr. Witmer listed findings on physical examination and reviewed
the results of an October 21, 2010 lumbar magnetic resonance imaging (MRI) scan. He
reiterated his prior diagnosis of chronic low back pain with left lumbar radiculopathy and
advised that the diagnosed condition was “possibly” related to an annular tear of L4-5 as shown
on the recent lumbar MRI scan. In a January 10, 2011 report, Dr. Witmer listed physical
examination findings and reviewed the results of a January 6, 2011 computerized tomography
(CT) scan of the abdomen and pelvis. He diagnosed classical left sciatica and advised that the
condition was “probably” related to pressure neuropathy secondary to pressure on the left-sided
sciatic nerve that was related to the way appellant favored her right leg.
In an October 19, 2011 decision, OWCP’s hearing representative affirmed as modified
the July 21, 2010 decision, finding the evidence sufficient to establish that the May 25, 2010
incident occurred as alleged. The hearing representative found that the medical evidence failed
to establish that appellant sustained a back injury causally related to the accepted employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within applicable time limitation;
that an injury was sustained while 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 compensation claim
regardless of whether the claim is predicated on a traumatic injury of an occupational disease.5

3

5 U.S.C. §§ 8101-8193.

4

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

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 4.

3

In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.6
In order to meet her burden of proof to establish the fact that she sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that she actually
experienced the employment injury or exposure at the time, place and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
ANALYSIS
In an October 19, 2011 decision, OWCP accepted as factual that appellant was helping a
patient get into bed on May 25, 2010 while working as a practical nurse. The Board finds,
however, that the medical evidence of record is insufficient to establish that her back condition
was caused or aggravated by the May 25, 2010 employment incident.
Dr. Witmer’s reports dated May 26 through October 12, 2010 provided physical
examination findings and diagnoses of low back pain with some degree of sciatica and left
lumbar radiculopathy. He opined that the diagnosed conditions were caused by the accepted
May 25, 2010 employment incident. Dr. Witmer further opined that appellant was temporarily
totally disabled as of May 26, 2010. While he described his diagnoses and opined that her
ongoing pain and conditions were caused by the accepted employment incident, the Board finds
that he failed to provide a sufficiently rationalized medical opinion explaining how helping a
patient get into bed caused her diagnosed conditions and resultant disability. As noted, part of
appellant’s burden of proof includes the submission of medical evidence explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by her.11 Dr. Witmer’s reports did not explain how the accepted employment incident caused or
aggravated her diagnosed conditions and resulting in total disability. In a November 11, 2010
report, he advised that his diagnosis of chronic low back pain with left lumbar radiculopathy was
6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

7

Linda S. Jackson, 49 ECAB 486 (1998).

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Charles E. Evans, 48 ECAB 692 (1997).

11

See supra note 9.

4

“possibly” related to an annular tear of L4-5 as shown on the recent lumbar MRI scan. In a
January 10, 2011 report, Dr. Witmer reviewed the results of a January 6, 2011 CT scan of the
abdomen and pelvis. He diagnosed classical left sciatica and advised that the condition was
“probably” related to pressure neuropathy secondary to pressure on the left-sided sciatic nerve
that was related to the way appellant favored her right leg. In both reports, Dr. Witmer reiterated
his prior opinion that she was totally disabled. The Board finds, however, that he did not provide
a rationalized medical opinion on causal relationship in these reports. Dr. Witmer’s use of the
words possibly and probably is equivocal and speculative in addressing the cause of appellant’s
conditions and, thus, his opinions are of diminished probative value. Moreover, he did not
attribute the diagnosed conditions and resultant disability to the accepted May 25, 2010
employment incident. Similarly, Dr. Witmer’s prescriptions which advised that appellant
continued to be totally disabled did not provide a firm medical diagnosis or address the causal
relationship between the May 25, 2010 employment incident and any disabling condition.
Medical evidence that does not offer any opinion regarding the cause of an employee’s
conditions is of limited probative value on the issue of causal relationship.12 For the stated
reasons, the Board finds Dr. Witmer’s reports and prescriptions are insufficient to establish
appellant’s claim.
Dr. Hamilton’s report found that appellant’s low back pain was caused by the accepted
May 25, 2010 employment incident. He also found that she was totally disabled from
performing her regular work duties. The Board has consistently held that pain is a symptom, not
a compensable medical diagnosis,13 and a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is
unsupported by medical rationale.14 Dr. Hamilton did not explain how helping a patient get into
bed would cause or contribute to the claimed back condition and resultant disability. Lacking
this medical explanation, the Board finds that his report is insufficient to establish appellant’s
claim.15
Dr. D’Angelo’s report and prescription found that appellant had acute low back pain with
sciatica for which he ordered physical therapy. He also found that she was totally disabled for
work. However, Dr. D’Angelo did not provide an opinion addressing the causal relationship
between the diagnosed condition and resultant disability and the accepted employment
incident.16 The Board finds, therefore, that this evidence is insufficient to establish appellant’s
claim.

12

S.E., Docket No. 08-2214 (issued May 6, 2009); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200
(2004); Michael E. Smith, 50 ECAB 313 (1999).
13

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

14

T.M., Docket No. 08-0975 (issued February 6, 2009).

15

S.S., 59 ECAB 315, 322 (2008); George Randolph Taylor, 6 ECAB 986, 988 (1954).

16

See cases cited supra note 12.

5

The Board finds that there is insufficient rationalized probative medical evidence of
record to establish that appellant sustained a back injury causally related to the accepted May 25,
2010 employment incident. Appellant did not meet her burden of proof.
On appeal, counsel contended that appellant sustained a back injury causally related to
the May 25, 2010 employment incident. For the reasons stated, the Board finds that she did not
submit sufficiently rationalized probative medical evidence to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a back injury on
May 25, 2010, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the October 19, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carol Stream, IL, Employer
__________________________________________

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

Docket No. 14-1738
Issued: March 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 10, 2014 appellant filed a timely appeal from a June 27, 2014 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration as it was untimely filed and failed to establish clear evidence of error. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, and
because more than 180 days elapsed between the last relevant OWCP merit decision dated
June 23, 20112 to the filing of this appeal, the Board lacks jurisdiction to review the merits of this
case.3

1

5 U.S.C. § 8101 et seq.

2

OWCP’s June 23, 2011 decision is the last decision regarding appellant’s schedule award.

3

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 determined that appellant’s reconsideration request
was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On April 15, 2002 OWCP accepted that appellant, a flat sorting machine operator,
sustained effusion of bilateral lower leg joint, right chondromalacia patellae, tear of left medial
meniscus of knee, psychogenic pain, and bilateral multiple and unspecified open wound of leg
without complications as a result of her federal employment. Appellant underwent several
authorized arthroscopic procedures to both knees.
Dr. David Anderson, a Board-certified orthopedic surgeon, acting as an OWCP district
medical adviser, reviewed the record on January 11, 2003 and related that appellant had 23
percent permanent bilateral lower extremity impairments. He explained that pursuant to the
American Medical Association, Guides to the Evaluation of Permanent Impairment, fifth edition,
she had 12 percent bilateral lower extremity permanent impairment for weakness of knee
extension, and another 12 percent bilateral impairment for loss of knee flexion.4 Using the
Combined Values Chart of the A.M.A., Guides,5 Dr. Anderson explained that appellant had 23
percent bilateral permanent impairment of the lower extremities.
By decision dated May 12, 2003, OWCP granted appellant 23 percent permanent
impairment of the right lower extremity and 23 percent permanent impairment of the left lower
extremity.
Appellant requested an increased schedule award on March 18, 2005. OWCP denied her
request for an increased schedule award on June 7, 2005. On June 30, 2005 appellant requested
a hearing before the Branch of Hearings and Review. By decision dated February 8, 2006, an
OWCP hearing representative set aside OWCP’s June 7, 2005 decision which had denied an
increased award for impairment of appellant’s bilateral lower extremities as the medical
impairment evaluation lacked probative value. By decision dated June 15, 2006, OWCP denied
appellant’s claim for an increased schedule award.
On January 22 and February 22, 2007 appellant again requested schedule awards.
A district medical adviser, Dr. Benjamin P. Crane, a Board-certified orthopedic surgeon,
reviewed the case record on March 11, 2007 and related that appellant had a 20 percent bilateral
lower extremity impairment for two millimeters cartilage interval of the knee,6 as well as a 10
percent permanent impairment for two millimeters cartilage interval of the patellofemoral joint
bilaterally. He then stated that she had another 10 percent permanent bilateral lower extremity
4

A.M.A., Guides 532, Table 17-8.

5

Id. at 604.

6

Id. at 544, Table 17-31.

2

impairment for partial medial and lateral meniscectomies,7 and another 1 percent permanent
bilateral impairment for pain.8 Dr. Crane concluded that using the Combined Values Chart9
appellant had 36 percent bilateral lower extremity impairments.
By decision dated June 15, 2007, OWCP granted an additional 13 percent schedule award
for impairment to the right lower extremity and an additional 13 percent for impairment to the
left lower extremity. By decision dated August 29, 2008, it affirmed the June 15, 2007 decision.
Appellant thereafter underwent a left total knee replacement on February 24, 2009 and a
right total knee replacement on August 18, 2009.
On March 9, 2011 appellant requested an additional schedule award.
A district medical adviser, Dr. Neil Ghodadra, an orthopedic surgeon, reviewed the case
record on June 9, 2011. He related that the record substantiated that appellant had good results
after total knee replacement. Dr. Ghodadra concluded that her total knee arthroplasties would be
rated as 23 percent bilateral permanent lower extremity impairments. Appellant was therefore
not entitled to an additional schedule award.
By decision dated June 23, 2011, OWCP denied appellant’s claim for an increased
schedule award over the previously paid awards for 36 percent bilateral lower extremity
impairments.
On March 28, 2014 OWCP received a request for reconsideration of the June 23, 2011
decision. The request was postmarked March 25, 2014. In support of her request, appellant
submitted a March 24, 2014 letter indicating that she had seven surgeries on her knees, two of
which were total knee replacements. She stated that the fibromyalgia makes life almost
unbearable along with the new diagnosis of tendinitis in both knees. Appellant stated that the
plantar fasciitis required her to have orthotics for her shoes. She argued that reconsideration of
her schedule award should be considered for both knees as she had undergone total knee
replacements. Appellant submitted duplicative evidence already of record and a new medical
report.
In an April 24, 2014 report, Dr. Eugene Lopez, a Board-certified orthopedic surgeon,
noted appellant’s symptoms have worsened since the last visit. Appellant has severe sharp pains
in her left knee near the front of her knee cap and has swelling by the end of the day. Her right
knee was also painful, with the left knee worse. Examination findings were provided. These
findings included slight patellar tendon tenderness, full range of motion but pain with resisted
knee flexion. Full strength and intact neurovascular. An impression of bilateral patellar
tendinitis status post bilateral total knee replacement was provided.

7

Id. at 546, Table 17-33.

8

Id. at 482, Table 16-10; 552, Table 17-37.

9

Supra note 5.

3

By decision dated June 27, 2014, OWCP denied her reconsideration request, finding that
it was untimely filed and did not present clear evidence of error.
LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.10
The employee shall exercise this right through a request to the district office. The request, along
with the supporting statements and evidence, is called the application for reconsideration.11
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.12 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.13 OWCP, through
regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA.14 As one such limitation, 20 C.F.R. § 10.607 provides that an application
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.15 OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The
evidence must be positive, precise, and explicit and must manifest on its face that OWCP
committed an error.16
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.17 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.18 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.19 A determination of whether the claimant has

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.605.

12

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

13

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.
14

5 U.S.C. §§ 8101-8193.

15

20 C.F.R. § 10.607.

16

D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005).

17

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

18

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

19

Id.

4

established clear evidence of error entails a limited review of how the evidence submitted with
the reconsideration request bears on the evidence previously of record.20
ANALYSIS
When the underlying compensation claim is for a schedule award, an initial question is
whether the claimant has submitted an application for reconsideration or has requested an
increased schedule award. Even if appellant has requested reconsideration, if there is new and
relevant evidence with respect to an increased permanent impairment, then a claimant may be
entitled to a merit decision on the issue.21 When a claimant does not submit any relevant
evidence with respect to an increased schedule award, then OWCP may properly determine that
appellant has filed an application for reconsideration of a schedule award decision.22 In this
case, appellant did not submit any relevant evidence with respect to an increased permanent
impairment. Therefore, the Board finds that OWCP properly considered appellant’s submission
as an application for reconsideration.
The last OWCP decision on the merits of the schedule award issue was dated
June 23, 2011. Effective August 29, 2011, OWCP amended its procedures to reflect that an
application for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought23 as opposed to the use of the postmark to determine
timeliness.24 As OWCP’s June 23, 2011 decision was issued before OWCP amended its
procedures to determine timeliness, the use of the postmark is appropriate. In this case,
appellant’s reconsideration request was postmarked March 25, 2014. As this is more than one
year after the June 23, 2011 merit decision, it is an untimely reconsideration request.
As an untimely application for reconsideration, appellant must establish clear evidence of
error by OWCP to require her claim to be reopened for merit review. In this case, she did not
establish clear evidence of error. Appellant did not present any argument with respect to error by
OWCP. The evidence submitted with the application for reconsideration did not address the
degree of permanent impairment with respect to any scheduled member of the body as of
June 23, 2011.25 While Dr. Lopez noted a worsening of appellant’s symptoms and patellar
tendon tenderness, he did not discuss a permanent impairment with regard to her knees.26 The
20

K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010).

21

See Linda T. Brown, 51 ECAB 115 (1999).

22

See W.J., Docket No. 12-1746 (issued February 5, 2013), E.M., Docket No. 13-1255 (issued
December 3, 2013).
23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(e) (August 29, 2011).

24

Prior to August 29, 2011, OWCP regulations provided in pertinent part: An application for reconsideration
must be sent within one year of the date of OWCP’s decision for which review is sought. If submitted by mail, the
application will be deemed timely if postmarked by the employing esblishment within the time period allowed. Id.
at Chapter 2.1602.3(b)(1) (January 2004).
25

E.M., supra note 22.

26

Cf., J.M., Docket No. 12-1341 (issued December 12, 2012); T.M., Docket No. 11-1989 (issued
January 12, 2012).

5

remaining medical reports submitted were duplicative of reports previously of record and do not
show error with respect to the June 23, 2011 decision.
As noted above, the clear evidence of error standard requires that the evidence raise a
substantial question as to the correctness of OWCP’s decision and shift the weight in favor of
appellant. Appellant did not meet that standard in this case and OWCP properly denied merit
review.
On appeal, appellant stated that she underwent several knee surgeries and requires
medication for the pain. She contends the evidence supports additional impairment. The Board
notes that appellant may, as noted above, claim an increased schedule award based on relevant
evidence which supports an additional impairment that is not duplicative of a previous
impairment. For the reasons stated, appellant did not establish clear evidence of error and
OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and failed
to present clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Aiken, SC, Employer
__________________________________________

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

Docket No. 21-0010
Issued: September 30, 2021

Case Submitted on the Record

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

JURISDICTION
On October 2, 2020 appellant filed a timely appeal from an April 8, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees ’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUES
The issues are: (1) whether appellant received an overpayment of wage-loss compensation
in the amount of $6,525.40 for the period November 1, 2018 through February 1, 2020, for which
she was without fault, because she concurrently received FECA wage-loss compensation benefits
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 8, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

and Social Security Administration (SSA) age-related retirement benefits without appropriate
offset; (2) whether OWCP properly denied waiver of recovery of the overpayment; (3) whether
OWCP properly required recovery of the overpayment by deducting $200.00 from appellant ’s
continuing compensation payments every 28 days.
FACTUAL HISTORY
On September 3, 1991 appellant, then a 34-year-old part-time flexible carrier, sustained a
traumatic injury when delivering mail while in the performance of duty. 3 OWCP accepted the
claim for lumbar sprain and an exacerbation of degenerative disc disease. It subsequently
expanded its acceptance of the claim to include reflex sympathetic dystrophy (RSD) of the left leg.
OWCP paid appellant wage-loss compensation on the periodic rolls beginning June 16, 2002.
On January 15, 2020 SSA provided OWCP with a Federal Employees Retirement System
(FERS)/SSA dual benefit calculation form. 4 The form indicated that with FERS, appellant was
entitled to a monthly payment of $1,055.00 effective November 2018, $1,084.00 effective
December 2018, and $1,102.00 effective December 2019. Without FERS, she was entitled to a
monthly payment rate of $635.00 effective November 2018, $652.00 effective December 2018,
and $663.00 effective December 2019.
OWCP completed a FERS offset calculation form on February 3, 2020.5 It calculated the
amount that it should have offset from appellant’s wage-loss compensation from November 1,
2018 through February 1, 2020. OWCP found that effective November 1, 2018, the monthly offset
was $420.00, or $387.69 every 28 days; effective December 1, 2018, the monthly offset was
$432.00, or $398.77 every 28 days; and, effective December 1, 2019, the monthly offset was
$439.00 or $405.23 every 28 days. It divided the 28-day offset amount to find the daily amount,
which it multiplied by the number of days in each period from November 1, 2018 through
February 1, 2020 to find the amount that it had overpaid appellant for each period. OWCP added
the amounts for each period and determined that it should have offset a total of $6,525.40 from her
wage-loss compensation.
On February 11, 2020 OWCP notified appellant of its preliminary overpayment
determination that she had received an overpayment of compensation in the amount of $6,525.40
because it had failed to reduce her wage-loss compensation benefits for the period November 1,
2018 through May 25, 2019 by the portion of her SSA age-related retirement benefits that were
attributable to federal service. It further advised her of its preliminary determination that she was
without fault in the creation of the overpayment. OWCP provided appellant with an overpayment
action request form and an overpayment recovery questionnaire (Form OWCP-20). Additiona lly,
it notified her that, within 30 days of the date of the letter, she could request a telephone conference,
a final decision based on the written evidence, or a prerecoupment hearing.
3

The traumatic injury claim (Form CA-1) is not found in the case record.

4

The employing establishment indicated on an April 19, 2002 claim for compensation (Form CA-7) that appellant
was covered by FERS.
5

The form was certified on February 13, 2020.

2

On March 1, 2020 appellant completed an overpayment action request form contesting that
she had received an overpayment and requesting waiver of recovery of the overpayment. She
advised that she had been told that she could receive retirement benefits from SSA and FECA
benefits.
By decision dated April 8, 2020, OWCP finalized its preliminary overpayment
determination, finding that appellant had received a $6,525.40 overpayment of compensation from
November 1, 2018 through February 1, 2020 because she had concurrently received FECA wageloss compensation and SSA age-related retirement benefits without the appropriate offset. It
further determined that she was without fault in the creation of the overpayment, but denied waiver
of recovery of the overpayment, noting that appellant had not submitted information supporting
waiver of recovery. OWCP required recovery of the overpayment by deducting $200.00 every 28
days from his continuing compensation payments.
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 his or her duty. 6 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 7
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 8 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 9
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of wage-loss compensation in the
amount of $6,525.40 for the period November 1, 2018 through February 1, 2020, for which she
was without fault, because she concurrently received FECA wage-loss compensation benefits and
SSA age-related retirement benefits without appropriate offset.
OWCP paid appellant wage-loss compensation for total disability following her injury.
Appellant subsequently began receiving SSA age-related retirement benefits. As noted, a claimant
cannot receive FECA compensation for wage-loss and SSA age-related retirement benefits

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

9

FECA Bulletin No. 97-09 (February 3, 1997). See also N.B., Docket No. 18-0795 (issued January 4, 2019).

3

attributable to federal service for the same period.10 Accordingly, the Board finds that fact of
overpayment has been established. 11
To determine the amount of the overpayment, the portion of SSA age-related retirement
benefits attributable to federal service must be calculated. OWCP received documentation from
SSA with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. SSA provided the SSA rates with FERS and without FERS for
specific periods from November 1, 2018 through February 1, 2020. OWCP set forth its
calculations of the amount that should have been offset during the relevant period based on
information provided by SSA for the period November 1, 2018 through February 1, 2020.
The Board has reviewed OWCP’s calculation of dual benefits received by appellant for the
period November 1, 2018 through February 1, 2020 and finds that an overpayment of
compensation in the amount of $6,525.40 was created. 12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA13 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. Thus, a
finding that appellant was without fault does not automatically result in waiver of the overpayment.
OWCP must exercise its discretion to determine whether recovery of the overpayment would
defeat the purpose of FECA or would be against equity and good conscience. 14
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.15 An individual’s liquid assets
include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual
funds, and certificates of deposits. Nonliquid assets include, but are not limited to, the fair market
value of an owner’s equity in property such as a camper, boat, second home, furnishings/suppl ies,
10

Supra note 8. See A.C., Docket No. 18-1550 (issued February 21, 2019).

11

See S.H., Docket No. 20-1157 (issued December 23, 2020); K.H., Docket No. 18-0171 (issued August 2, 2018).

12

See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).

13

Supra note 1.

14

G.L., Docket No. 19-0297 (issued October 23, 2019).

15

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide that assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) and (3) (September 2018).

4

vehicle(s) above the two allowed per immediate family, retirement account balances (such as TSP
or 401(k)), jewelry, and artwork. 16
Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship 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 worse. 17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant not at fault in the creation of the overpayment, waiver must be
considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 18 Appellant,
however, has the responsibility to provide the appropriate financial information and documentation
to OWCP.19
In its preliminary overpayment determination, dated February 11, 2020, OWCP requested
that appellant provide a completed Form OWCP-20 and supporting financial information,
including copies of income tax returns, bank account statements, bills and cancelled checks, pay
slips, and any other records to support income and expenses. It advised her that it would deny
waiver of recovery of the overpayment if she failed to furnish the requested financial information
within 30 days. Appellant did not timely submit a completed Form OWCP-20 or the financial
information necessary for OWCP to determine if recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience.20
Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438
of OWCP’s regulations to determine her eligibility for waiver, the Board finds that OWCP
properly denied waiver of recovery of the overpayment. 21

16

Id. at Chapter 6.400.4b(3)(a), (b).

17

20 C.F.R. § 10.437(b)(1).

18

Id. at § 10.436.

19

Id. at § 10.438. See E.S., Docket No. 20-0919 (issued February 8, 2021).

20

J.C., Docket No. 20-1062 (issued January 4, 2021); E.M., Docket No. 19-0857 (issued December 31, 2019).

21

J.C., id.

5

LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. 22
Section 10.411 of OWCP’s regulations provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”23
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$200.00 from appellant’s continuing compensation payments every 28 days.
As discussed, appellant did not complete Form OWCP-20 or provide the necessary
financial information to support her income and expenses. The overpaid individual is responsible
for providing information about income, expenses, and assets as specified by OWCP. 24 When an
individual fails to provide requested financial information, OWCP should follow minimum
collection guidelines designed to collect the debt promptly and in full. 25 As appellant did not
submit the financial documentation to OWCP as requested, the Board finds that OWCP properly
directed recovery of the $6,525.40 overpayment of compensation at the rate of $200.00 every 28
days from her continuing compensation payments. 26
CONCLUSION
The Board finds that appellant received an overpayment of wage-loss compensation in the
amount of $6,525.40 for the period November 1, 2018 through February 1, 2020 for which she
was without fault, because she concurrently received FECA wage-loss compensation benefits and
SSA age-related retirement benefits without an appropriate offset. The Board further finds that
OWCP properly denied waiver of recovery of the overpayment and properly required recovery of

22

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

23

Id. at § 10.441(a).

24

20 C.F.R § 10.438.

25

E.M., supra note 20; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter
6.500.2 (September 2018).
26

See J.A., Docket No. 19-1946 (issued July 13, 2020); E.K., Docket No. 18-0587 (issued October 1, 2018).

6

the overpayment by deducting $200.00 from appellant’s continuing compensation payments every
28 days.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 30, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7