United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, SANTA CLARA
P&DC, Santa Clara, CA, Employer
__________________________________________

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

Docket No. 08-2114
Issued: April 21, 2009

Case Submitted on the Record

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

JURISDICTION
On July 28, 2008 appellant filed a timely appeal from a June 23, 2008 merit decision of
the Office of Workers’ Compensation Programs denying modification of a February 25, 2008
merit decision that denied his traumatic injury claim. Pursuant to 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 he sustained an inguinal hernia in the
performance of duty on December 26, 2007.
FACTUAL HISTORY
On January 17, 2008 appellant, a 39-year-old mail handler, filed a traumatic injury claim
(Form CA-1) for a inguinal hernia. He alleges that the injury occurred on December 26, 2007
while he was pushing a wire cage. By letter dated January 22, 2008, the employing
establishment controverted appellant’s claim.

Appellant submitted no medical evidence in support of his claim and by letter dated
January 22, 2008, the Office informed him that the evidence submitted in support of his claim
was insufficient. The Office requested that he submit substantive medical evidence to support
his claim.
Responding to the Office’s letter, appellant submitted, in a letter dated February 4, 2008,
a series of responses to questions regarding his injury claim. The employing establishment, in a
February 13, 2008 letter, controverted the claim.
Appellant submitted a medical report concerning an appointment at Kaiser Permanente
on January 18, 2008. The report prescribed three days of disability from work. Appellant also
submitted a January 31, 2008 medical report from Kaiser Permanente asserting that he could
return to work without restrictions on July 5, 2008. Neither of these reports bore a physician’s
signature.
A January 23, 2008 unsigned medical report from Kaiser Permanente released appellant
from work for 14 days commencing January 25, 2008 for surgery to repair his hernia. The
author of this report asserted that appellant will require two weeks to recover from the procedure.
In a December 29, 2007 medical report from Dr. Teny Haroutunian, Board-certified in
family medicine, diagnosed appellant with inguinal hernia. In a subsequent medical note, he
stated that appellant may return to work on December 29, 2007 but only if modified work is
available. Further, Dr. Haroutunian noted that if modified work is unavailable appellant was not
able to return to duty.
Appellant also submitted a hand-written note with an illegible signature. The author of
the note reported that appellant told him he was experiencing pain in his pelvic area.
By letter dated February 25, 2008, the Office denied appellant’s traumatic injury claim as
the medical evidence did not demonstrate that the claimed medical condition was related to the
established work-related event. Additionally, by letter dated February 25, 2008, the Office
denied appellant’s claim for continuation of pay.
In an April 10, 2008 medical note, Dr. Jimmie Kung, a Board-certified physiatrist,
proffers a diagnosis of right inguinal hernia S/P right hernia repair with good result. He reported
that appellant no longer felt groin pain and that he may return to work without restriction.
Dr. Kung also concluded that appellant’s injury occurred at work while pushing a wire cage.
On May 6, 2008 appellant requested reconsideration. By decision dated June 23, 2008,
the Office denied modification of its prior decision because the evidence of record was
insufficient to establish that he sustained an injury causally related to his December 26, 2007
injury.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.5
Rationalized medical opinion evidence is medical evidence which includes a physician(s)
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.7

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

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

4

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

5

Id.

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

3

ANALYSIS
Appellant has submitted insufficient medical evidence to establish that his medical
condition was caused or aggravated by his federal employment. He has the burden of
establishing by reliable, probative and substantive evidence that the occurrence of a disabling
condition for which he seeks compensation was causally related to his employment injury. As
part of such burden of proof, rationalized medical evidence showing causal relationship must be
submitted.8 As noted above, to establish a causal relationship, a claimant must submit a
physician’s report in which the physician reviews the employment factors identified as causing
the claimed condition and, taking these factors into consideration as well as findings upon
examination, explain whether the employment injury caused or aggravated the diagnosed
condition and presents a medical rational in support of his or her opinion.9
The medical reports from Kaiser Permanente and Dr. Haroutunian are of little probative
value as they do not report findings upon examination, a rationalized medical opinion concerning
the causal relationship between appellant’s injury and his federal employment or bear a
physician’s signature.10 Medical reports that do not contain a rationale on causation are
generally insufficient to meet an employee’s burden of proof.11 As these reports merely
document periods when appellant was excused from work for surgery, they are of little probative
value.
The only piece of evidence in the record that connects appellant’s diagnosed inguinal
hernia to his federal duties is Dr. Kung’s April 10, 2005 medical report. While Dr. Kung did
conclude that appellant’s injury occurred at work while he was pushing a wire cage, he never
identified what “pushing a wire cage” entailed and how physiologically this activity would have
caused the inguinal hernia. The medical report does not address how the specific duties
appellant performed as a fiscal quality specialist caused or aggravated his diagnosed condition.
Dr. Kung did not demonstrate that he understood the physical requirements of appellant’s job
and thus, his opinion is of diminished probative value.12
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the
physician’s opinion, with medical reasons on the cause of his condition. Appellant failed to
8

Henry L. Kent, 34 ECAB 361 (1982).

9

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); J.M., 58 ECAB ___ (Docket No. 06-2094, issued
January 30, 2007).
10

An unsigned medical report with no adequate indication that it was completed by a physician is not considered
probative medical evidence. See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).
11

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (stating that medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship).
12

See James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because
the history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987)
(addressing factors that bear on the probative value of medical opinions).

4

submit appropriate medical documentation in response to the Office’s request. As there is no
probative rationalized medical evidence addressing how his alleged injury was caused or
aggravated by his employment, he has not met his burden of proof in establishing that he
sustained an injury in the performance of duty causally related to factors of his federal
employment.
CONCLUSION
The Board finds that the Office properly concluded that appellant had not established that
he sustained an injury in the performance of duty on December 26, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 23, 2008 is affirmed.
Issued: April 21, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 13-1589
Issued: December 5, 2013

Case Submitted on the Record

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

JURISDICTION
On June 26, 2013 appellant, through her attorney, filed a timely appeal from a May 15,
2013 Office of Workers’ Compensation Programs’ (OWCP) decision which denied her claim for
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was totally
disabled beginning November 24, 2010 causally related to her accepted employment condition.
FACTUAL HISTORY
This is the third appeal in the present case. In an order dated March 12, 2012, the Board
set aside an OWCP decision dated June 9, 2011 as it failed to review medical reports received
prior to the June 3, 2011 decision. The case was remanded for OWCP to consider all the
1

5 U.S.C. §§ 8101-8193.

evidence submitted at the time of the decision.2 In a February 6, 2013 decision, the Board
affirmed an OWCP decision dated June 20, 2012. The Board found that appellant failed to
establish that her disability for the period beginning November 24, 2010 was causally related to
her accepted right wrist injury. The facts and circumstances of the case up to that point are set
forth in the Board’s prior decision and incorporated herein by reference.3
In a February 16, 2013 decision, OWCP expanded appellant’s claim to include impaction
syndrome of the right wrist.
On February 26, 2013 appellant requested reconsideration based on the additional
accepted condition. She sought treatment from Dr. Daniel A. Capen, a Board-certified
orthopedic surgeon, from February 15 to April 5, 2013, for right wrist pain over the distal aspect
of the ulna. Dr. Capen noted tenderness to palpation over the distal aspect of the right wrist, a
well-healed incision site with limited range of motion of the wrist and diminished grip strength.
He diagnosed internal derangement of the right wrist, status post right wrist surgery, ulnar
impaction syndrome and status post right wrist surgery on December 18, 2012. Dr. Capen noted
that appellant underwent a debridement of the triangular fibrocartilage and osteotomy of the
distal ulna and advised that she could return to work on April 8, 2013.
Appellant was treated by Dr. Andre M.V. Chaves, a Board-certified orthopedic surgeon,
for right wrist pain and a triangular fibrocartilage tear. In a July 3, 2012 report, Dr. Chaves noted
that she had a work-related injury when she was forcefully removing someone from the
employing establishment and twisted her right wrist. He diagnosed ulnar impaction syndrome,
status post arthroscopic procedure and repair of the radiocarpal ligament. On December 18,
2012 Dr. Chaves performed an authorized debridement of triangular fibrocartilage and
osteotomy of the distal ulna of the right wrist and diagnosed status post repair of the triangular
fibrocartilage with persistent pain and impingement syndrome.4 In reports dated December 24,
2012 to February 12, 2013, he noted appellant’s complaints of right wrist pain and diagnosed
status post debridement of triangular fibrocartilage. Dr. Chaves opined that she was totally
disabled. In a March 26, 2013 report, he noted appellant’s complaint of right wrist pain and
diagnosed status post debridement of triangular fibrocartilage. In a work status note of
March 26, 2013, Dr. Chaves advised that she could return to full duties with restrictions on
April 8, 2013. In a May 7, 2013 duty status report, he diagnosed status post debridement of
triangular fibrocartilage and advised that appellant could return to work full time modified duty.
Appellant also submitted physical therapy notes.
On April 8, 2013 appellant was offered a full-time position as a postal police officer
subject to restrictions. She accepted the position and returned to work.
2

Docket No. 11-1621 (issued March 12, 2012). On January 23, 2008 appellant, a police officer, injured her right
wrist while lifting an unruly child. OWCP accepted the claim for sprain of the right wrist, sprain of the right wrist
radiocarpal, late effects of the sprain/strain of the right wrist without tendon injury and tear of the triangular
fibrocartilage. It authorized right wrist surgery that was performed on June 9, 2008. Appellant returned to limited
duty and had intermittent disability.
3

Docket No. 12-1546 (issued February 6, 2013).

4

OWCP paid appellant appropriate wage-loss compensation beginning December 18, 2012.

2

In a decision dated May 15, 2013, OWCP denied appellant’s claim for compensation for
total disability for the period beginning November 24, 2010.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.5 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.6 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.7 To meet this burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.8
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he or she was disabled for work as a result of the accepted employment
injury.9
ANALYSIS
OWCP accepted appellant’s claim for sprain of the right wrist, sprain of the right wrist
radiocarpal, late effects of the sprain/strain of the right wrist without tendon injury and tear of the
triangular fibrocartilage. It authorized right wrist surgery which was performed on June 9, 2008.
Appellant stopped work on November 23, 2010 and returned to a limited-duty job on
December 1, 2010. She worked at limited duty until January 27, 2011, when she stopped work.
On June 24, 2011 appellant returned to a limited-duty position and stopped work in
December 2012. On December 18, 2012 she underwent an authorized debridement of triangular
fibrocartilage and osteotomy of the distal ulna of the right wrist. Appellant returned to work full
time modified duty on April 8, 2013.
The Board finds that the medical evidence is insufficient to establish that she was
disabled beginning November 24, 2010 caused or aggravated by her accepted right wrist
conditions.10
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

C.S., Docket No. 08-2218 (issued August 7, 2009).

9

Sandra D. Pruitt, 57 ECAB 126 (2005).

10

Although OWCP denied that appellant had total disability beginning November 24, 2010, it paid her wage-loss
compensation for intermittent hours of wage loss incidental to her medical appointments. It also paid her

3

Appellant submitted treatment notes from Dr. Capen from February 15 to April 5, 2013,
who noted positive findings upon examination and diagnosed internal derangement of the right
wrist, status post right wrist surgery, ulnar impaction syndrome and status post right wrist
surgery on December 18, 2012. Dr. Capen noted that appellant underwent a debridement of the
triangular fibrocartilage and osteotomy of the distal ulna and advised that she could return to
work on April 8, 2013. However, his reports are insufficient to establish her claim as he did not
provide a history of injury11 or specifically address the cause of her claimed disability beginning
November 24, 2010.12 Therefore, Dr. Capen’s reports are insufficient to meet appellant’s burden
of proof.
On July 3, 2012 Dr. Chaves noted that appellant sustained a work-related injury when she
was forcefully removing someone from the employing establishment and twisted her right wrist.
He diagnosed ulnar impaction syndrome and performed repair of the radiocarpal ligament on
December 18, 2012. In reports dated December 24, 2012 to February 12, 2013, Dr. Chaves
noted appellant’s complaints of pain in the right wrist and diagnosed status post debridement of
triangular fibrocartilage. While Dr. Chaves opined that appellant was totally disabled from
work, he did not specifically address her disability beginning November 24, 2010 which
occurred prior to her December 18, 2012 surgery. Dr. Chaves’ subsequent reports addressed
appellant’s current status but did not address the nature or periods of disability beginning
November 24, 2010, prior to her December 18, 2012 surgery. He did not explain how any period
of disability between November 24, 2010 and December 18, 2012 was employment related. As
noted, part of appellant’s burden of proof includes submitting rationalized medical evidence
which supports a causal relationship between the disabling condition and the accepted injury.13
Therefore Dr. Chaves’ reports are insufficient to meet her burden of proof.
Appellant also submitted physical therapy notes. The Board has held that treatment notes
signed by a physical therapist are not considered medical evidence as these providers are not a
physician under FECA.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
compensation for total disability after her December 18, 2012 surgery. These payments are not at issue in the
present appeal.
11

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
12

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
13

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
14

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by State law).

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CONCLUSION
The Board finds that appellant has failed to establish that her disability for the period
beginning November 24, 2010 is causally related to the accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 15, 2013 is affirmed.
Issued: December 5, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sewell, NJ, Employer
__________________________________________
Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-1356
Issued: October 4, 2017

Case Submitted on the Record

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

On June 9, 2017 appellant, through counsel, filed a timely appeal from an April 17, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). In the April 17, 217
decision, an OWCP hearing representative affirmed a November 8, 2016 decision that denied
appellant’s occupational disease claim.
On March 7, 2016 appellant, a 41-year-old rural carrier associate, filed an occupational
disease claim (Form CA-2) alleging that employment duties caused bilateral carpal tunnel
syndrome. She also noted having two additional claims for injuries on June 5, 2013 and
October 13, 2014, adjudicated by OWCP under File Nos. xxxxxx536 and xxxxxx404. The
employing establishment noted on the claim form that appellant last worked on

1

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

October 13, 2014.2 Appellant submitted medical reports from Dr. Scott M. Fried, a Boardcertified osteopath specializing in orthopedic surgery, dated January 13, 2016. These consisted
of neuromusculoskeletal ultrasounds of the left brachial plexus, the left radial nerve and forearm
extensor musculature, and the left median nerve and carpal tunnel. All were interpreted as
positive. Dr. Fried noted appellant’s cervical spine and bilateral shoulder pain complaints and
his review of the ultrasound studies, indicating they were consistent with her complaints and
injuries. He reported findings and diagnosed concussion, low back pain, cervical strain and
sprain, status post a June 5, 2013 motor vehicle accident, left shoulder capsulitis, posterior
occipital neuralgia, bilateral median neuropathy, and bilateral brachial plexopathy/cervical
radiculopathy. In an August 16, 2016 report that referenced File No. xxxxxx536,3 Dr. Fried
advised that appellant’s symptoms continued.
In the November 8, 2016 decision, OWCP denied the claim, finding that the medical
evidence was insufficient to establish causal relationship. Counsel requested a hearing with
OWCP’s Branch of Hearings and Review which was held on March 1, 2017. In an October 10,
2016 report, Dr. Fried reviewed appellant’s treatment and maintained that her repetitive activities
at the employing establishment aggravated and exacerbated her underlying traumatic injury that
occurred in the June 5, 2013 motor vehicle accident. He indicated that objective testing was
consistent with bilateral carpal tunnel syndrome. In the April 17, 2017 decision, an OWCP
hearing representative referenced medical evidence found in File No. xxxxxx404. He affirmed
the November 8, 2016 decision, finding that appellant had failed to submit sufficient medical
evidence to establish that the diagnosed carpal tunnel syndrome was causally related to her
federal employment duties.
The Board finds that the case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), 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. Decisions on claims are based on the written
record, which may include forms, reports, letters, and other evidence of various types such as
photographs, videotapes or drawings.4 Evidence may not be incorporated by reference, nor may
evidence from another claimant’s case file be used.5 Evidence contained in another of the
claimant’s case files may be used, but a copy of that evidence should be placed into the case file

2

The instant case was adjudicated by OWCP under File No. xxxxxx273. In a July 20, 2017 decision, the Board
remanded File No. xxxxxx404 to OWCP to obtain a second opinion evaluation regarding appellant’s claim that
work factors caused cervical strain and sprain, bilateral brachial plexopathy/cervical radiculopathy, back sprain,
lumbar radiculopathy, bilateral posterior occipital neuralgia and facial radiation, long thoracic neuritis with scapula
winging on the right, cervical and lumbar radiculitis, low back pain, concussion and post-concussion syndrome, and
adhesive capsulitis of the left shoulder. The July 20, 2017 decision indicated that, under File No. xxxxxx536,
OWCP accepted that a June 5, 2013 motor vehicle accident caused a sprain of neck, sprain of lumbar region,
cervical radiculitis, and lumbar radiculitis. J.B., Docket No. 16-0661 (issued July 20, 2017).
3

Supra note 2.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
5

Id.

2

being adjudicated.6 All evidence that forms the basis of a decision must be in that claimant’s
case record.7
The hearing representative’s April 17, 2017 decision referenced evidence associated with
appellant’s prior claim, File No. xxxxxx404. He specifically referenced a July 16, 2014
electrodiagnostic study, indicating that it failed to establish carpal tunnel syndrome, and a
September 28, 2015 report from Dr. Fried. The hearing representative relied on these reports,
indicating that Dr. Fried offered no explanation for certain discrepancies. Neither of these
reports is in the case record of File No. xxxxxx273, on appeal in this case. As the hearing
representative relied on this medical evidence, found in File No. xxxxxx404, in denying
appellant’s claim, he neglected to include the referenced evidence into the current case record,
File No. xxxxxx273. Due to this oversight, the Board is not in a position to make an informed
decision regarding appellant’s claim for employment-related carpal tunnel syndrome.8
Since the record lacks sufficient evidence for the Board to render an informed decision,
the case shall be remanded to OWCP for further development. As noted, all evidence that forms
the basis of a decision must be included in the case record.9 After OWCP has developed the
record consistent with the above-noted directive, it shall issue a de novo decision regarding
appellant’s claim for bilateral carpal tunnel syndrome.

6

Id.

7

Id.

8

See L.W., Docket No. 17-0526 (issued May 12, 2017).

9

Supra note 4.

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IT IS HEREBY ORDERED THAT the April 17, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: October 4, 2017
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.F., Appellant
and
U.S. POSTAL SERVICE, LA SIERRA POST
OFFICE, Riverside, CA, Employer
__________________________________________

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

Docket No. 19-1630
Issued: April 7, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 29, 2019 appellant, through counsel, filed a timely appeal from a June 27, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence to OWCP following the June 27, 2019 decision.
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.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $22,124.51 for the period January 28, 2003 through May 26, 2018 because life insurance
premiums were improperly deducted; (2) whether OWCP properly denied waiver of recovery of
the overpayment; and (3) whether it properly required recovery of the overpayment by deducting
$300.00 from appellant’s continuing compensation payments.
FACTUAL HISTORY
On November 26, 2001 appellant, then a 54-year-old modified rehabilitation distribution
clerk, filed an occupational disease claim (Form CA-2) alleging that on November 19, 2001, he
developed low back pain and muscle spasms radiating down both legs as a result of his federal
employment. He stopped work on November 21, 2001. On January 9, 2002 OWCP accepted the
claim for a lumbar sprain under OWCP File No. xxxxxx083.4 It paid appellant wage-loss benefits
on the supplemental roll as of May 18, 2002 and on the periodic roll as of June 13 2004.
In a letter dated September 28, 2004, the Office of Personnel Management (OPM) advised
appellant that OWCP had indicated that he had elected OWCP disability benefits as of
May 18, 2002. It explained that appellant’s Federal Employees Retirement System (FERS)
annuity was suspended effective June 1, 2004 and the administration of his health and life
insurance was transferred to OWCP effective June 1, 2004.
On May 4, 2018 OPM advised OWCP that as a compensationer appellant was eligible to
continue Federal Employees’ Group Life Insurance (FEGLI). It requested that OWCP deduct for
Code Y5: Basic -- no reduction, option B-5X no reduction, and option C-5X no reduction. OPM
further advised that appellant’s postretirement election was no reduction and the commencement
date for the postretirement deductions was January 28, 2003. It indicated that OWCP should
continue the option B and option C premiums as appellant had elected to keep the option B and C
coverage past the age of 65.
In a January 25, 2018 letter to appellant, OWCP advised that all FEGLI optional life
insurance (OLI )premium deductions should automatically stop when a claimant reaches age 65
unless an election is made to continue OLI coverage beyond this age. The letter informed him that
“due to computer error, OWCP has deducted OLI premiums past your 65th birthday without having
an OLI post-65 election documented to your case file. Consequently, your OLI premium
deductions stopped after your last birthday. OWCP does not have authorization to reinstate these
deductions without having documentation from OPM instructing us to do so.” Appellant was then
requested to inform OPM of his post-65 OLI election. He selected the option to continue his
current OLI at no reduction and signed the form on February 7, 2018.
OWCP compensation payment history records indicate that from May 18, 2002 until
May 4, 2013 no postretirement basic life insurance (PRBLI) premiums were deducted. However

4

OWCP File No. xxxxxx083 is the master file for three combined claims. On November 22, 1991 OWCP accepted
appellant’s claim for a lumbosacral strain under File No. xxxxxx901. On August 9, 1989 it accepted his claim for a
right knee strain, right ankle strain, right shoulder sprain, and low back sprain under claim No. xxxxxx479.

2

from May 5, 2013 until May 26, 2018 deductions were made. OLI deductions were generally
made from June 13, 2004 until July 22, 2017.
In a preliminary overpayment determination dated October 30, 2018, OWCP advised
appellant that he had received an overpayment of compensation in the amount of $22,124.51 from
January 28, 2003 through May 26, 2018 because incorrect deductions for OLI and PRBLI
premiums were made from his continuing compensation benefits. It explained that on May 4,
2018 OPM confirmed that he made a retroactive election for OLI and PRBLI, and that the
deductions were effective January 28, 2003. OWCP explained that appellant’s compensation
payments were not adjusted until May 27, 2018, and incorrect deductions were made for his OLI
and PRBLI premiums for the period January 28, 2003 through May 26, 2018. It provided an
overpayment memorandum which calculated the overpayment amounts from January 28, 2003 to
May 27, 2018. It further determined that appellant was not at fault in the creation of the
overpayment because it had incorrectly deducted the insurance premiums and it was not shown
that he had actual knowledge of the calculation error. Appellant was informed that, if he believed
the overpayment should be waived, he should complete an overpayment recovery questionnaire
(Form OWCP-20) and submit detailed supporting financial documentation within 30 days.
On November 6, 2018 appellant requested a telephonic prerecoupment hearing before a
representative of the Branch of Hearings and Review. During the March 11, 2019 hearing
appellant’s counsel argued that OWCP should prove that it paid appellant’s insurance premiums
to OPM during the time period in question before an overpayment could be declared. He noted
that appellant received $4,000.00 per month for a service-related disability from the Department
of Veterans Affairs and that he had other assets, to include $100,000.00 his checking account.
Appellant provided a completed Form OWCP-20. He indicated that he had monthly
income of $2,820.00 from OWCP, $847.80 related to his wife’s Social Security benefits, and
$4,000.00 related to other benefits, totaling $7,667.80. Appellant noted monthly expenses of
$1,500.00 for food, $800.00 for clothing, $1,000.00 for utilities, and $900.00 for other expenses,
totaling $4,200.00. He did not list his assets.
By decision dated June 27, 2019, an OWCP hearing representative determined that
appellant received an overpayment of compensation in the amount of $22,124.51 for the period
January 28, 2003 through May 26, 2018, because his life insurance premiums were incorrectly
deducted. The hearing representative found that appellant was not at fault in the creation of the
overpayment, but that waiver of recovery was denied as appellant’s assets exceeded the allowable
resource base. OWCP directed that $300.00 be withheld from appellant’s continuing
compensation payments every 28 days in order to recover the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the OLI options.5 The coverage for BLI is effective unless

5

5 U.S.C. § 8702(a).

3

waived6 and premiums for BLI and OLI coverage are withheld from the employee’s pay.7 Upon
retirement or upon separation from the employing establishment or being placed on FECA periodic
compensation rolls, an employee may choose to continue BLI and OLI coverage, in which case
the schedule of deductions made will be used to withhold premiums from his or her annuity or
compensation payments. 8 BLI coverage shall be continued without cost to an employee who
retired or began receiving compensation on or before December 31, 1989;9 however, the employee
is responsible for payment of premiums for OLI coverage which is accomplished by authorizing
withholdings from his compensation.10
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance: option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).11 Each employee must elect or waive option A, option B, and option C
coverage, in a manner designated by OPM, within 60 days after becoming eligible unless, during
earlier employment, he or she filed an election or waiver that remains in effect. 12 An employee
who does not file a life insurance election with his or her employing office, in a manner designated
by OPM, specifically electing a type of optional insurance, is considered to have waived it and
does not have that type of optional insurance coverage.13
When an underwithholding of life insurance premiums occurs, the entire amount is deemed
an overpayment of compensation, because OWCP must pay the full premium to OPM upon
discovery of the error. 14

6

Id. at § 8702(b).

7

Id. at § 8707.

8

Id. at § 8706.

9

Id. at § 8707(b)(2).

10

Id. at § 8706(b)(3)(B). See B.B., Docket No. 17-1733 (issued March 26, 2018); S.B., Docket No. 16-1795 (issued
March 2, 2017).
11

See C.A., Docket No. 18-1284 (issued April 15, 2019); James J. Conway, Docket No. 04-2047 (issued
May 20, 2005).
12

5 C.F.R. § 870.504(a)(1).

13

Id. at § 870.504(b).

14

5 U.S.C. § 8707(d); see also B.B. and S.B., supra note 10.

4

ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $22,124.51 for the period January 28, 2003 through
May 26, 2018.
OWCP found that an overpayment of compensation in the amount of $22,124.51 was
created for the period January 28, 2003 through May 26, 2018 because it incorrectly deducted
premiums for OLI and PRBLI. It found that on May 4, 2018 OPM had advised appellant that he
was eligible to continue his FEGLI insurance. OWCP also found that appellant had elected OLI
and PRBLI retroactive to January 28, 2003 by signing an OWCP letter dated January 25, 2018 on
February 7, 2018. The Board finds however that the January 25, 2018 letter to appellant advised
him that OWCP had deducted OLI premiums past his 65th birthday, without having an OLI post65 election on file. Appellant was then asked to complete a post-65 OLI election to continue his
deductions. He selected the OLI election and advised, “I want to continue my current OLI at no
reduction.” The letter form appellant signed on February 7, 2018 did not specifically advise or
request that he wished to elect OLI or PRBLI benefits retroactive to January 28, 2003. The current
record does not include any other FEGLI election form signed by appellant indicating his life
insurance elections as of January 28, 2003.
The record also includes computer printouts showing that no deductions had been made
for PRBLI from May 18, 2002 until May 4, 2013, but from May 5, 2013 until May 26, 2018
deductions were made. OLI deductions were generally made from June 13, 2004 until
July 22, 2017. Also OWCP’s January 25, 2018 letter indicated that OLI deductions had been made
until appellant’s 65th birthday.
The Board finds that OWCP failed to adequately support its determination that appellant
received an overpayment of compensation for the period January 28, 2003 through May 26, 2018.
While the record substantiates that appellant elected that his OLI be continued on February 7,
2018, the record does not contain evidence that appellant signed a document electing OLI or
PRBLI coverage as of January 28, 2003. The Board has previously found that OWCP must
document whether and when a claimant elected life insurance coverage after separation from
federal service or retirement. 15 OWCP has not factually established appellant’s life insurance
election which was in effect on January 28, 2003. Furthermore, the record indicates that some
deductions were inexplicably made. OWCP has therefore not met its burden of proof to establish
that appellant received an overpayment of compensation from January 28, 2003 through
May 26, 2018.16

15

R.F., Docket No. 18-0739 (issued January 2, 2019); D.T., Docket No. 17-0901 (issued January 29, 2018); Glen B.
Cox, 42 ECAB 703 (1991).
16

In light of the Board’s disposition of the overpayment, the remaining issues are rendered moot.

5

CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $22,124.51 for the period January 28, 2003 through
May 26, 2018.
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: April 7, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Janice B. Askin, Judge
Employees’ Compensation Appeals Board
Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
TUSCALOOSA VETERANS HOSPITAL,
Tuscaloosa, AL, Employer
__________________________________________

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

Docket No. 12-946
Issued: January 29, 2013

Case Submitted on the Record

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

JURISDICTION
On March 22, 2012 appellant filed a timely appeal of a January 25, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying her traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a traumatic injury on June 2, 2010 in the performance of duty.
FACTUAL HISTORY
Appellant, then a 49-year-old nurse, filed a traumatic injury claim alleging that she
bruised her knees and was “shaken up” in the performance of duty when she slipped and fell on
the bottom two steps of stairwell B-38 at the employing establishment on June 2, 2010. Her
1

5 U.S.C. § 8101 et seq.

claim form was dated December 20, 2010. Appellant’s supervisor noted receiving notice of the
injury on December 14, 2011 and that no lost time or medical expenses were incurred.
In a letter dated December 16, 2011, OWCP requested that appellant provide additional
factual and medical evidence in support of her claimed employment injury. It allowed her 30
days for a response.
In a narrative statement dated December 28, 2011, appellant stated that she fell down
stairs at work on June 2, 2010 and was treated at the employing establishment health unit. She
was performing her regular duties at the time of the incident and developed back pain. Appellant
stated that she had weakness of the extensor halluces longus and tibialis anterior with positive
straight leg raising. She stated that she planned to undergo surgery.
In a December 12, 2011 note, Dr. Rick McKenzie, a Board-certified neurosurgeon, stated
that appellant fell in June at work striking her knees, buttocks and back. He compared a
magnetic resonance imaging (MRI) scan with a previous computerized tomography scan
obtained in March. Dr. McKenzie noted some minor disc bulging with left-sided impingement at
L4-5 on the right, subarticular stenosis and crowding of the descending L5 nerve root. He stated
that appellant’s fall could have caused the neural impingement and recommended left L4-5
lateral recess decompression.
By decision dated January 25, 2012, OWCP denied appellant’s claim on the grounds that
the factual element of her claim had not been established. It determined that the evidence was
not sufficient to establish that the June 2, 2010 incident occurred as alleged. OWCP also stated
that appellant had not submitted any medical evidence in support of her claim.
LEGAL PRECEDENT
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and members or functions of the body affected.”2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
In order to determine whether an employee actually sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.3 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.

2

20 C.F.R. § 10.5(ee).

3

Elaine Pendleton, 40 ECAB 1143 (1989).

2

An employee has the burden of establishing the occurrence of an injury at the time, place
and in the manner alleged, by a preponderance of the reliable, probative and substantial
evidence. An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his subsequent course of
action. An employee has not met his or her burden of proof of establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury and failure to
obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established. An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.4
The employee must also submit sufficient evidence, generally only in the form a medical
evidence, to establish that the employment incident caused a personal injury.5
ANALYSIS
Appellant alleged that she fell down the bottom two steps of a stairway at the employing
establishment on June 2, 2010. She delayed filing a claim until December 20, 2010. She
submitted a narrative statement and a treatment note dated December 21, 2011 from
Dr. McKenzie in support of her claim. Dr. McKenzie obtained a history that appellant fell at
work “in June,” but did not identify the year, or describe the nature of the fall. He noted that
appellant struck her knees, buttocks and back. Dr. McKenzie did not provide any history of the
year and a half from the June 2, 2010 alleged incident to his report in December 2011.
The Board finds that the factual evidence is insufficient to establish that the employment
incident occurred as alleged, i.e., that appellant fell down the bottom two steps of stairwell B-38
on June 2, 2010 as alleged. Appellant provided notification of her injury some six months after
the fact, a late notification of injury. She did not lose time from work or seek immediate medical
attention. There are no witness statements or indication that she provided the employing
establishment with notification of her fall until December 2011, lack of confirmation of injury.
The record indicates that appellant continued to work without apparent difficulty following the
alleged injury and failed to obtain medical treatment until December 20, 2011 a period of one
and half years. Appellant has not offered any explanation for these factual deficiencies in her
claim. As noted above, such defects in the factual evidence are sufficient to cast doubt on
whether the employment incident occurred as alleged.
Appellant has failed to establish fact of injury: she did not submit sufficient evidence to
establish that she actually experienced an employment incident at the time, place and in the
manner alleged.6
4

D.B., 58 ECAB 464, 466-67 (2007).

5

J.Z., 58 ECAB 529 (2007).

6

V.H., Docket No. 12-1621 (issued December 21, 2012).

3

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 an employment incident on June 2,
2010 as alleged; thus, fact of injury is not established.
ORDER
IT IS HEREBY ORDERED THAT the January 25, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 29, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


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

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

Docket No. 19-0318
Issued: November 12, 2019

Case Submitted on the Record

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

JURISDICTION
On November 26, 2018 appellant, through counsel, filed a timely appeal from an
October 30, 2018 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
ISSUE
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $882.71 for the period November 27, 2017 through
January 5, 2018 for which she was not at fault; and (2) whether OWCP properly denied waiver of
recovery of the overpayment.
1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the October 30, 2018 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
On October 4, 2017 appellant, then a 53-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on September 19, 2017 she sustained a left elbow contusion, and left
hand, bilateral knee, and right ankle injuries when she fell as she stepped out of her vehicle while
in the performance of duty. OWCP accepted the claim for contusions of the left elbow, left hand,
right knee, right middle finger, and ligament sprain of the right ankle.
In a leave analysis report dated December 8, 2017, appellant claimed eight hours of leave
without pay on November 27, 28, and 29, 2017. She then claimed 8 hours of sick leave on
December 1, 2, 4, 5, and 6, 2017, and 6.52 hours of sick leave and 1.48 hours of annual leave on
December 7, 2017.
In a leave analysis report dated December 22, 2017, appellant claimed eight hours of leave
without pay for each of the following days: December 11 through 16, and December 19
through 22, 2017.
In a leave analysis report dated January 5, 2018, received by OWCP on January 18, 2018,
appellant claimed 8 hours of leave without pay for each of the following days: December 23,
December 26 through 30, 2017, January 1, 2018, and January 3, through January 5, 2018.
On January 18, 2018 appellant submitted a claim for compensation (Form CA-7) for leave
without pay for the period November 27, 2017 through January 5, 2018.
A supplemental rolls payment report dated January 26, 2018 indicates that appellant
received $4,562.72 in compensation from OWCP for the period November 27, 2017 through
January 5, 2018, for a total of 40 days of compensation.
In a letter dated February 8, 2018, the employing establishment indicated that appellant
received compensation for paid leave on November 25, 2017 and from December 1 through 7,
2017, and also received compensation from OWCP for temporary total disability (TTD) for
November 27, 2017 through January 5, 2018. It questioned whether appellant had received dual
compensation for these dates. The employing establishment also informed OWCP that appellant’s
rate of pay, effective October 6, 2017, was $61,201.00 annually.
On August 22, 2018 OWCP advised appellant of its preliminary determination that she had
received an $882.71 overpayment of compensation because she received TTD compensation for
the period November 27, 2017 through January 5, 2018, and also used sick and annual leave during
that same period. It explained that she had received $5,044.03 in gross compensation during the
40-day period in question, which included 7 days of gross wage-loss compensation in the amount
of $882.71 during the period December 1 through 8, 2017. OWCP further found that appellant
was without fault in the creation of the overpayment, advised her that she could request waiver of
recovery of the overpayment, and provided an overpayment recovery questionnaire (Form OWCP20) for her completion. It afforded her 30 days to respond and submit supporting financial
documentation.
On September 11, 2018 OWCP received appellant’s completed Form OWCP-20.
Appellant indicated a total monthly income of $3,934.00 and total monthly expenses of $4,679.28,
and reported assets of $20.00 in her checking account. She further argued that she would suffer
2

severe financial hardship in trying to repay the debt, and requested waiver of recovery of the
overpayment.
By decision dated October 30, 2018, OWCP finalized the overpayment determination,
finding that an overpayment of compensation in the amount of $882.71 had been created for the
period November 27, 2017 through January 5, 2018. Specifically, it indicated that appellant
received dual compensation for both sick and annual leave, and TTD, for the period December 1
through 7, 2017. OWCP found that she was not at fault in the creation of the overpayment, but
the evidence received was insufficient to require waiver of recovery because appellant was
receiving income from multiple sources including TTD compensation payments, and income
earned by her spouse. It directed appellant to forward payment for the full amount of $882.71
within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA3 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.5
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.6 The Board has determined that if an employee receives sick leave from the employing
establishment at the same time she is being paid compensation, this will cause an overpayment.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received FECA wage-loss compensation on dates in
December 2017 during which she had already been paid sick leave by the employing
establishment. Therefore fact of overpayment is established.
The Board further finds, however, that this case is not in posture for decision with regard
to the period and amount of overpayment. The evidence of record reflects that leave analysis
records pertaining to the relevant time period document that appellant received 48 hours of sick
leave for 6 days during the period December 1 through 7, 2017, and also received TTD
compensation for those dates. However, the employing establishment has indicated that appellant
3

Supra note 1.

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8116(a).

7

T.R., Docket No. 15-1374 (issued September 16, 2016).

3

received 56 hours of sick and annual leave for seven days during this time period. OWCP
calculated the amount of the overpayment based upon appellant’s receipt of 56 hours of sick and
annual leave compensation during this time period. This discrepancy was not resolved prior to
calculation of the amount of the overpayment.
Furthermore, the Board notes that OWCP calculated the amount of overpayment based
upon gross compensation. An overpayment of compensation based upon dual receipt of sick leave
and FECA benefits is based upon net, rather than gross compensation.8
This case therefore must be remanded for OWCP to determine whether appellant received
six or seven days of pay for leave during the period November 27, 2017 through January 5, 2018.
OWCP should thereafter recalculate the amount of the overpayment of compensation based upon
the net wage-loss compensation it paid during this time period. After such further development as
necessary, OWCP shall issue a de novo decision.9

8
9

Id.
In light of the disposition of Issue 1, the issue of waiver of recovery of overpayment, Issue 2, is moot.

4

CONCLUSION
The Board finds that appellant received an overpayment of compensation, but that the case
is not in posture for decision regarding the period and amount of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the October 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: November 12, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, SOUTH OAK CLIFF
STATION, Dallas, TX, Employer
__________________________________________

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

Docket No. 07-1564
Issued: December 11, 2007

Case Submitted on the Record

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

JURISDICTION
On May 22, 2007 appellant filed a timely appeal from the February 13, 2007 decision of
the Office of Workers’ Compensation Programs denying further merit review of his claim. The
most recent merit decision in this case is dated February 21, 2006. Because appellant filed his
appeal more than a year after this merit decision, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board does not have jurisdiction over the merits of this case. The only decision properly
before the Board is the nonmerit decision denying reconsideration of the merits.
ISSUE
The issue is whether the Office properly denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128.
FACTUAL HISTORY
On August 27, 1999 appellant, then a 38-year-old letter carrier, sprained his right hip
while stepping out of his postal vehicle and walking up steps. The Office accepted his traumatic
injury claim for right hip sprain and updated it to include aggravation of right hip osteoarthritis.

The Office authorized a right hip replacement, which was conducted on March 22, 2001. On
November 13, 2001 appellant was granted a schedule award for 50 percent impairment of his
lower right extremity.
On August 25, 2004 appellant filed a claim for wage-loss compensation, Form CA-7, for
leave without pay taken from July 12 to August 25, 2004. On August 24, 2004 Dr. Richard
Buch, who performed appellant’s right hip replacement surgery in 2001, stated that appellant
was totally disabled from May 11 through August 24, 2004. He did not provide a date at which
time appellant could return to work. Appellant later filed claims for compensation for leave
without pay taken from September 6 to 17 and November 12 to December 11, 2004.
The Office requested that appellant provide additional medical evidence establishing his
disability for the claimed periods. Dr. Buch provided his treatment notes from 2004. On
August 24, 2004 he stated that it was likely that appellant’s left hip and right knee problems,
which were causing a significant amount of pain, were precipitated by his accepted right hip
injury. On November 24, 2004 Dr. Buch stated that appellant’s right knee pain was partially
caused by his left hip problem, which could be related to an earlier injury or the injury of the
right hip.
By decision dated September 8, 2005, the Office denied appellant’s claim for
compensation. The Office found that the medical evidence was insufficient to establish that
appellant’s disability was caused by his August 27, 1999 employment injury.
On November 18, 2005 appellant requested reconsideration and filed a claim for leave
without pay taken from December 12, 2004 to November 18, 2005. In a report dated
November 1, 2005, Dr. Ronnie Shade, an orthopedic surgeon, opined that appellant had a left hip
condition, which was a consequential injury of his accepted right hip injury. On November 8,
2005 Dr. Buch stated that appellant’s right and left hips were both causing him pain. He opined
that the left hip injury was a consequential injury of his right hip condition because appellant
began to change the way he walked after his first hip injury and had not experienced any
functional problems with the left hip prior to that point. Dr. Buch opined that appellant was
disabled from work because there were likely few jobs that he could perform with two injured
hips.
By decision dated February 21, 2006 the Office denied modification of its September 8,
2005 decision. The Office found that none of the new medical reports dealt with the claimed
period of disability from July 12 to December 11, 2004. The Office did not address the claim for
compensation from December 12, 2004 to November 18, 2005.
On September 7, 2006 Dr. Shade stated that appellant’s current symptoms included
progressive pain, joint stiffness and muscle spasms in both hips. He opined that appellant’s left
hip condition was a consequential injury of his accepted right hip condition. Dr. Shade also
provided treatment notes from March and November 2006.
On November 6, 2006 appellant made a telephone call to the Office to verify the status of
his claims. The Office advised that his claims for compensation had been denied and that he

2

needed to use his appeal rights if he wanted to challenge these decisions.1 On December 11,
2006 appellant requested reconsideration on a form provided by the Office. He submitted no
letter or documentation with his reconsideration request form.
By decision dated February 13, 2007, the Office denied appellant’s request for
reconsideration of the merits of his claim because he did not state the grounds for his
reconsideration request or submit new and relevant arguments or evidence.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act, the Office has the
discretion to reopen a case for review on the merits.2 Section 10.606(b)(2) of Title 20 of the
Code of Federal Regulations provides that the application for reconsideration, including all
supporting documents, must set forth arguments and contain evidence that: (1) shows that the
Office erroneously applied or interpreted a specific point of law; (2) advances a relevant legal
argument not previously considered by the Office; or (3) constitutes relevant and pertinent new
evidence not previously considered by the Office.3 Section 10.608(b) provides that, when an
application for reconsideration does not meet at least one of the three requirements enumerated
under section 10.606(b)(2), the Office will deny the application for reconsideration without
reopening the case for a review on the merits.4
When reviewing an Office decision denying merit review, the function of the Board is to
determine whether the Office properly applied the standards set forth at section 10.606(b)(2) to
the claimant’s application for reconsideration and any evidence submitted in support thereof.5
ANALYSIS
The Board finds that appellant met none of the regulatory requirements for a review of
the merits of the Office’s February 21, 2006 decision. On December 11, 2006 appellant
requested reconsideration but failed to state the grounds for his request or submit any new
evidence. The Board notes that the record contained new medical evidence from Dr. Shade, an
orthopedic surgeon; however, this evidence is not relevant to the underlying issue in this case as
it does not reference the periods of disability addressed in the Office’s February 21, 2006
decision. As there was no relevant and pertinent new evidence for the Office to consider,
appellant was not entitled to review under the third section of 10.606(b)(2).6
1

The Board notes that the Office has not adjudicated the claim for compensation that appellant submitted on
November 18, 2005 for the period December 12, 2004 to November 18, 2005. This issue is not before the Board in
the present appeal. See 20 C.F.R. § 501.2(c).
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b).

5

Leslie M. Mahin, 55 ECAB 311 (2004).

6

20 C.F.R. § 10.606(b)(2)(iii).

3

The Board notes that appellant did not raise new arguments or present evidence that the
Office erroneously applied or interpreted a specific point of law. Appellant also did not advance
any relevant legal arguments not previously considered by the Office. He is thus not entitled to
further review on the merits of his case under the first two subsections of section 10.606(b)(2).7
Because appellant did not meet any of the statutory requirements for a review of the
merits of his claim, the Office properly denied his December 11, 2006 request for
reconsideration of the merits of his claim.
CONCLUSION
The Board finds that the Office properly denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 13, 2007 is affirmed.
Issued: December 11, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7

Id. at § 10.606(b)(2)(i) and (ii).

4


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

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

Docket No. 13-1844
Issued: February 4, 2014

Case Submitted on the Record

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

JURISDICTION
On August 5, 2013 appellant, through his attorney, filed a timely appeal from a May 14,
2013 schedule award decision of the Office of Workers’ Compensation Programs’ (OWCP)
hearing representative. 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 schedule award issue of this
case.
ISSUE
The issue is whether appellant has more than 20 percent impairment of the left arm for
which he received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. OWCP accepted that on May 10, 1992
appellant, then a 41-year-old mail processing equipment mechanic, sustained a laceration of the
1

5 U.S.C. § 8101 et seq.

left index and middle fingers and left carpal tunnel syndrome in the performance of duty. He
stopped work intermittently and returned to limited duty on June 27, 1992. Appellant underwent
surgery of the left index and middle fingers. On November 19, 1992 he requested a schedule
award. OWCP granted a schedule award for four percent permanent impairment of the left upper
extremity.
On June 20, 2002 appellant, through counsel, requested an increased schedule award.
In a July 13, 2001 report, Dr. David Weiss, a Board-certified osteopath, advised that
appellant had a 70 percent impairment of the left upper extremity under the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). In a January 19, 2005 report, OWCP’s medical adviser reviewed the medical record.
He opined that appellant had 18 percent impairment of the left upper extremity according to the
fifth edition of the A.M.A., Guides.
OWCP determined that a conflict in medical opinion arose between Dr. Weiss and
OWCP’s medical adviser regarding the extent of appellant’s impairment. It referred appellant to
Dr. Paul Foddai, a Board-certified orthopedic surgeon, for an impartial medical examination. In
a February 14, 2006 report, Dr. Foddai conducted an examination and determined that appellant
had 17.75 percent impairment of the left upper extremity. He reported that appellant reached
maximum medical improvement on December 1, 2004. On October 5, 2006 the medical adviser
reviewed Dr. Foddai’s report and agreed with his opinion and impairment rating.
In an August 9, 2007 decision, OWCP granted a schedule award for 18 percent
impairment of the left upper extremity. Appellant disagreed and requested a hearing through his
attorney, which was held on December 12, 2007. By decision dated March 5, 2008, OWCP’s
hearing representative affirmed the August 9, 2007 schedule award.
In an April 3, 2009 decision,2 the Board set aside OWCP’s August 9, 2007 and March 5,
2008 decisions and remanded the case for further development. It found that Dr. Foddai, the
impartial medical examiner, was improperly selected as he had previously examined appellant.
Therefore, Dr. Foddai’s opinion did not carry special weight.
Following the Board’s remand, OWCP referred appellant to Dr. Stanley Soren, a Boardcertified orthopedic surgeon, to conduct an impartial medical examination. In an October 6,
2009 report, Dr. Soren provided findings on examination and found that appellant had 19 percent
impairment of the left arm under the sixth edition of the A.M.A., Guides. On March 21, 2010
OWCP’s medical adviser reviewed Dr. Soren’s report and agreed with his impairment rating.
In an April 6, 2010 decision, OWCP granted appellant a schedule award for an additional
one percent impairment of the left upper extremity.
Appellant, through his attorney, requested an oral hearing. On July 20, 2010 he changed
his request to a review of the written record. By decision dated October 5, 2010, OWCP’s
hearing representative affirmed the April 6, 2010 schedule award decision.
2

Docket No. 08-1776 (issued April 3, 2009).

2

In a January 12, 2012 decision,3 the Board set aside the October 5, 2010 schedule award
decision finding that OWCP did not meet its obligation to establish that the impartial medical
examiner was properly selected. It remanded the case for selection of another impartial medical
specialist and further development regarding appellant’s entitlement to a schedule award.
On March 26, 2012 OWCP referred appellant, together with the case record and
statement of accepted facts, to Dr. Ernest Tolentino, a Board-certified orthopedic surgeon, for an
impartial medical examination to resolve the conflict in medical opinion.
In an April 30, 2012 memorandum, the claims examiner stated that Dr. Tolentino called
OWCP, but the claims examiner did not speak to him.
By letter dated May 3, 2012, OWCP advised Dr. Tolentino to conduct a referee
examination in order to resolve a conflict between appellant’s treating physician, Dr. Weiss, and
the medical adviser. It also informed him of the requirements for him to remain impartial during
the examination process.
In a May 2, 2012 report, Dr. Tolentino reviewed an accurate history of the May 10, 1992
employment injury and appellant’s records, including the statement of accepted facts.
Examination of appellant’s left upper extremity revealed a normal contour except at the palmar
aspect of the left hand where there was atrophy of the distal aspect of the left second and third
fingers and thenar eminence. Dr. Tolentino observed healed surgical scars at the index and
middle fingers and a healed laceration along the ulnar aspect of the left middle finger. He also
noted hypersensitivity to touch and weakness of pinch and grasp. Examination of the left wrist
was normal with full range of dorsiflexion, palmar flexion and radial and ulnar deviations.
Tinel’s sign at the left wrist was positive. Range of motion of the left index finger revealed full
extension of the metacarpophalangeal (MP), proximal interphalangeal (PIP) and distal
interphalangeal (DIP) joints. Flexion of the MP and PIP joints was to 90 degrees and the DIP
joint was to 15 degrees. Range of motion of the left middle finger revealed flexion of the MP
and PIP joints to 90 degrees and of the DIP joint to 15 degrees. Dr. Tolentino stated that
appellant reached maximum medical improvement.
According to the sixth edition of the A.M.A., Guides, Table 15-31 on page 470, for finger
range of motion, appellant had 25 and 27 percent digit impairment for the left second and third
fingers. Utilizing Table 15-12 on page 421, Dr. Tolentino stated that appellant had 5 percent
digit impairment for each for a total of 10 percent upper extremity impairment. He also
referenced Table 15-17 on page 427 and Table 15-11 on page 420 to determine that 10 percent
digit loss equaled 2 percent loss of the hand, which equaled 4 percent loss of the hand for two
digits. Regarding appellant’s accepted carpal tunnel syndrome, Dr. Tolentino referenced Table
15-23 on page 449 and determined that appellant had eight percent left upper extremity
impairment. He concluded that appellant had a total of 22 percent total impairment of the left
upper extremity.
In a May 29, 2012 report, Dr. Henry Magliato, a Board-certified orthopedic surgeon and
OWCP medical adviser, reviewed the medical record. He concurred with Dr. Tolentino’s
3

Docket No. 11-605 (issued January 12, 2012).

3

opinion that appellant had 10 percent impairment for his two digits, 8 percent impairment for left
carpal tunnel syndrome and 4 percent impairment for digital nerve involvement. Dr. Magliato
determined, however, that Dr. Tolentino did not utilize the Combined Values Chart on page 604.
He explained that Dr. Tolentino combined the percentages of 10, 8 and 4 to total 22 percent, but
according to the Combined Values Chart on page 604 appellant had a total of 20 percent
permanent impairment of the left upper extremity.
In a letter dated June 27, 2012, OWCP requested clarification from Dr. Tolentino
concerning his calculations under the A.M.A., Guides and whether he agreed with the medical
adviser’s reference to use the Combined Values Chart on page 604.
In a July 13, 2012 report, Dr. Tolentino stated that, upon review of his calculation, it was
evident that he did not use the Combined Values Chart and that the medical adviser was correct.
Under the Combined Values Chart, he concluded that appellant had 20 percent impairment of the
left upper extremity.
On October 26, 2012 OWCP granted appellant a schedule award for 20 percent
impairment of the left arm as a result of the accepted May 10, 1992 employment injuries.
By letter dated November 15, 2012, counsel requested a telephone hearing. By letter
dated March 21, 2013, he requested that the scheduled telephone hearing be changed to an
examination of the record.
In a decision dated May 14, 2013, OWCP’s hearing representative affirmed the
October 26, 2012 decision as modified. He affirmed the 20 percent impairment rating but
determined that appellant was entitled to compensation at the augmented rate of 75 percent rather
than the statuary rate of 66 2/3 percent.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule
losses.5
Under the six edition, the evaluator identifies the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History

4

5 U.S.C. §§ 8101-8193.

5

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

4

(GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).6 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
When there exists opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.8
ANALYSIS
OWCP accepted appellant’s claim for a laceration of the left index and middle fingers
and left carpal tunnel syndrome. Appellant filed a claim for a schedule award. In a July 31,
2001 report, Dr. Weiss, appellant’s treating physician, opined that appellant had 70 percent
impairment of the left upper extremity. In a January 19, 2005 report, OWCP’s medical adviser
determined that appellant had 18 percent impairment of the left upper extremity. OWCP found
that a conflict in medical opinion arose between appellant’s treating physician and the medical
adviser. It referred appellant to an impartial medical examiner to resolve the conflict in medical
opinion. The Board finds that OWCP properly determined that a conflict in medical opinion
existed between appellant’s treating physician and OWCP’s referral physician.
In a May 2, 2012 report, Dr. Tolentino, the impartial medical examiner, reviewed
appellant’s records, including the statement of accepted facts and provided findings on
examination. He determined that, according to the sixth edition of the A.M.A., Guides, Table
15-31 on page 470 for finger range of motion, appellant had 25 and 27 percent digit impairment
for the left second and third fingers. Utilizing Table 15-12 on page 421, Dr. Tolentino stated that
appellant had 5 percent digit impairment for each for a total of 10 percent upper extremity
impairment. He also referenced Table 15-17 on page 427 and Table 15-11 on page 420 to
determine that 10 percent digit loss equaled 2 percent loss of the hand, which equaled 4 percent
loss for two digits. Regarding appellant’s accepted carpal tunnel syndrome, Dr. Tolentino
referenced Table 15-23 on page 449 and determined that appellant had eight percent left upper
extremity impairment. He concluded that appellant had a 22 percent total impairment of the left
upper extremity and had reached maximum medical improvement. In a July 13, 2012
supplemental report, Dr. Tolentino reported that he should have used the Combined Values Chart
on page 604 and determined that according to that chart appellant had a total of 20 percent
impairment of the left upper extremity.
The Board finds that Dr. Tolentino was properly selected as the impartial medical
specialist to resolve the issue of extent and degree of any employment-related impairment.
Dr. Tolentino’s opinion constitutes the special weight of the medical evidence. He reviewed the
medical record and provided findings on examination.
Dr. Tolentino provided a
well-rationalized opinion and calculation under the sixth edition of the A.M.A., Guides and
6

A.M.A., Guides 405-419.

7

Id. at 521.

8

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

determined that appellant had a total of 20 percent impairment of the left upper extremity. His
opinion is entitled to special weight and represents the weight of the medical evidence.
The Board finds that Dr. Magliato, OWCP’s medical adviser, properly reviewed the
record on May 29, 2012 and determined that appellant had 20 percent impairment of the left
upper extremity in accordance with the sixth edition of the A.M.A., Guides.
On appeal, counsel alleges that OWCP made two mistakes relative to the referee medical
examination. He stated that it was clear from Dr. Tolentino’s May 2, 2012 impartial medical
report that he had contact with the district office. Counsel contended that Dr. Tolentino’s
opinion should be disregarded and the case referred to a new referee examiner. If found proper,
he contends that Dr. Tolentino’s report was not well reasoned and did not comply with the sixth
edition of the A.M.A., Guides. The Board notes that, although Dr. Tolentino’s office contacted
the district office by telephone on April 30, 2012, the record reveals that the claims examiner did
not speak to Dr. Tolentino. OWCP responded to Dr. Tolentino by letter dated May 3, 2012 in
accordance with OWCP procedures. Accordingly, the Board finds that Dr. Tolentino did not
have any improper contact with OWCP such that his opinion is tainted.
Appellant did not submit sufficient medical evidence to establish that he sustained greater
than 20 permanent impairment of the left upper extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant is not entitled to greater than 20 percent impairment of the
left upper extremity, for which he received a schedule award.

6

ORDER
IT IS HEREBY ORDERED THAT the May 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7