United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, DISTRIBUTION &
PROCESSING CENTER, Atlanta, GA, Employer
__________________________________________

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Appearances:
Jennifer Raymond, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1056
Issued: April 4, 2016

Case Submitted on the Record

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

JURISDICTION
On April 6, 2015 appellant, through counsel, filed a timely appeal of a January 30, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her claim should
be expanded to accept a consequential condition of aggravation of preexisting bipolar disorder
type II.
FACTUAL HISTORY
On May 17, 2011 appellant, then a 44-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on May 9, 2011 she injured the sole of her heel/foot due to
pushing heavy containers. OWCP accepted the claim for aggravation of left tibialis and
1

5 U.S.C. § 8101 et seq.

aggravation of left tendon injury. By letter dated July 14, 2011, it placed appellant on the
periodic rolls for temporary total disability, effective June 29, 2011. OWCP authorized foot
tendon revision (kidner procedure) which occurred on August 12, 2011.2
On August 6, 2013 counsel requested that OWCP expand acceptance of appellant’s claim
to include a consequential condition of aggravation of preexisting bipolar disorder type II.
Appellant submitted a July 19, 2013 report prepared by Dr. Todd M. Antin, a Board-certified
psychiatrist. In this report, Dr. Antin provided medical, psychiatric, and employment injury
histories. He related a family history of bipolar and major depressive disorder, as well as a
history of post-partum depression since the birth of appellant’s first child in 1984. Appellant’s
mood swings were noted, and that during a manic episode she had spent over $30,000, leading to
bankruptcy. Dr. Antin noted that appellant’s anxiety and depression impeded her ability to
concentrate and that she was a danger to others when in a manic phase. He reported that, as a
result of her May 9, 2011 employment injury, resulting surgery and inability to work, appellant
had become deeply depressed and gained excessive weight, which has caused high cholesterol
and hypertension and contributed to her anxiety and depressive mood. Dr. Antin opined that
appellant’s 2011 employment injury exacerbated her mood symptoms and caused increased
feelings of worthlessness, irritability, anger, and hostility. He concluded that appellant’s
preexisting bipolar disorder type II had been aggravated by the 2011 employment injury.
Dr. Antin, in an August 22, 2013 report, provided a medical history of appellant’s mental
illness, which he opined had been aggravated by difficult school and work experiences. He
reported that appellant sustained a left ankle injury in 2009 which caused swelling and
significant pain, and rendered her totally disabled for over a year. In 2011 appellant returned to a
modified job and sustained an employment-related ruptured left-sided Achilles tendon which
required reparative surgery. As a result of this injury, she sustained a deep depression, excessive
weight gain, high cholesterol, and hypertension. Dr. Antin concluded that these medical
conditions all contributed to her anxiety and depression. According to Dr. Antin, appellant
sustained significant mental decompensation as a result of her employment injury-related stress.
He noted that appellant reported mood swings and that she experienced situational panic attacks
and severe anxiety. The panic attacks occured when appellant was forced to interact with
people. Dr. Antin opined that the May 9, 2011 employment-related Achilles injury exacerbated
her preexisting bipolar II disorder and that the resulting symptoms rendered her disabled from
work.
By decision dated October 2, 2013, OWCP denied appellant’s claim for a consequential
injury. It found Dr. Antin failed to provide a rationalized opinion explaining how appellant’s
bipolar disorder type II was caused or aggravated by the accepted May 9, 2011 employment
injury.
On October 28, 2013 appellant requested a review of the written record by an OWCP
hearing representative.

2

The record reflects that appellant had another prior accepted claim in 1997 under OWCP file number xxxxx961.
This claim was accepted for post-traumatic stress disorder after appellant’s employing establishment was robbed at
gunpoint. Appellant was not diagnosed with bipolar disorder at that time. She was released to return to full duty on
July 29, 1998.

2

By decision dated March 20, 2014, the OWCP hearing representative affirmed the
October 2, 2013 decision denying appellant’s request for expansion of her claim to include a
consequential emotional condition.
By letter dated and received on November 14, 2014, appellant’s counsel requested
reconsideration of the March 20, 2014 hearing representative’s decision.
Subsequent to her reconsideration request, appellant submitted an October 27, 2014
report by Dr. Antin. Dr. Antin provided a history of his treatment and noted the medical records
he reviewed going back to 1997, which he opined revealed significant findings of preexising
mental illness and bipolar disorder type II. He noted that in 1995 appellant sustained posttraumatic stress disorder (PTSD) due to having a gun pointed at her head during a workplace
robbery, which the doctor asserted “demonstrated a classic association beween sufferers of
bipolar disorder and PTSD.” Next, Dr. Antin reported that appellant sustained “a marked
deterioration of stability following” the May 9, 2011 employment injury. He opined that the
2011 Achilles tendon rupture caused physical incapacitation which resulted in her hypertension,
weight gain, and high cholesterol. These conditions all aggravated her preexisting bipolar
condition as evident by her behavior and mood deterioration, separation and divorce from her
husband, and increased impulsive behavior. Dr. Antin opined that appellant’s preexisting bipolar
condition had been aggravated by the 2011 employment injury which rendered her totally
disabled.
By decision dated January 30, 2015, OWCP denied modification of the prior decision. It
found that the reports from Dr. Antin were not based upon an accurate history and were not
sufficiently rationalized to establish that appellant sustained a consequential injury.
LEGAL PRECEDENT
The general rule regarding consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury. With respect to consequential injuries, the Board has stated that, where an injury
is sustained as a consequence of an impairment residual to an employment injury, the new or
second injury, even though nonemployment related, is deemed, because of the chain of causation
to arise out of and in the course of employment and is compensable.3
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, she must present rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relationship. The opinion must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship of the diagnosed condition and the specific employment factors or employment
injury.4
3

See S.S., 59 ECAB 315 (2008); Debra L. Dillworth, 57 ECAB 516 (2006).

4

S.H., Docket No. 15-0316 (issued June 8, 2015); Charles W. Downey, 54 ECAB 421 (2003).

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ANALYSIS
OWCP accepted appellant’s claim for aggravation of left tibialis and aggravation of left
tendon injury and authorized foot tendon revision surgery (kidner procedure). By letter dated
July 14, 2011, it placed appellant on the periodic rolls for temporary total disability effective
June 29, 2011.5 Appellant alleges that her preexisting bipolar condition was aggravated by her
May 9, 2011 employment injury and should be accepted as a consequential injury. The Board
finds that appellant has failed to establish that she sustained a consequential emotional condition
from her accepted May 9, 2011 employment injury.
The medical evidence relevant to appellant’s claim includes reports dated July 19, 2013
and October 27, 2014 from Dr. Antin who noted a medical history of bipolar disease, depression
and post-traumatic stress disorder. Dr. Antin opined that the May 2011 employment injury,
resulting surgery, and inability to work caused appellant to become deeply depressed which
caused excessive weight gain, high cholesterol, and hypertension. These conditions according to
Dr. Antin all contributed to her anxiety and depressive mood and aggravated her preexisting
bipolar disorder type II. Dr. Antin noted that the 2011 employment injury exacerbated
appellant’s mood symptoms and caused increased feelings of worthlessness, irritability, anger,
and hostility. While Dr. Antin opined that appellant’s bipolar condition had been aggravated by
the May 2011 employment injury, he has not provided sufficient explanation for this conclusion.
There is no medical explanation as to how appellant’s bipolar disorder was a natural
consequence of the accepted aggravation left tibialis, aggravation left tendon injury, and foot
tendon revision surgery (kidner procedure).6 While Dr. Antin related that the accepted lower
extremity conditions caused depression, which then caused excessive weight gain, high
cholesterol, and hypertension, he has not substantiated his opinion with objective findings.7 He
noted appellant’s own allegations in this regard, but has not shown that his opinion regarding
weight gain, high cholesterol, or hypertension was based upon established medical findings.8
Given appellant’s long history of preexisting depression and bipolar disorder, Dr. Antin
has also not explained findings that substantiate that appellant’s mental disorders in fact
worsened. He notes that her mood symptoms were aggravated by the employment injuries but
provided no rationale as to how he arrived at his opinion. Dr. Antin merely attributes these
symptoms and conditions to appellant’s accepted injury with no supporting objective
documentation or rationale. Medical reports consisting solely of conclusory statements without
supporting rationale are of little probative value.9 In view of the lack of rationale provided by
Dr. Antin on the issue of causal relationship, the Board finds that his opinion fails to establish
5

By decision dated February 14, 2014, OWCP issued a loss of wage-earning capacity decision which reduced
appellant’s wage-loss compensation based on her ability to earn wages in the constructed position of customer
complaint clerk.
6

Supra note 3.

7

See E.B., Docket No. 12-0682 (issued November 8, 2012); see also Samuel S. Corrado, 15 ECAB 324 (1963).

8

Id.

9

See T.M., Docket No. 08-975, (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006);
William C. Thomas, 45 ECAB 591 (1994) (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).

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that appellant’s claim should be expanded to include the condition of aggravation of her
preexisting bipolar disorder type II.
It is appellant’s burden to establish a consequential condition. Appellant failed to provide
the necessary evidence to support her claim, and thus has failed to meet her burden of proof.
On appeal counsel argues that medical evidence, represented by Dr. Antin’s various
reports, is sufficient to establish acceptance of appellant’s bipolar condition or that it is at least
sufficient to warrant further development of the evidence. As discussed above, Dr. Antin
provided conclusory opinions which are insufficient to establish a consequential injury.
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 not met her burden of proof to establish that a
consequential condition of aggravation of preexisting bipolar disorder type II.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 30, 2015 is affirmed.
Issued: April 4, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MANCHESTER VA MEDICAL CENTER,
Manchester, NH, Employer
__________________________________________

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

Docket No. 20-0730
Issued: October 27, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 13, 2020 appellant filed a timely appeal from a December 20, 2019 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 20, 2019 decision, appellant submitted 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted October 2, 2019 employment incident.
FACTUAL HISTORY
On October 21, 2019 appellant, then a 20-year-old licensed nursing assistant, filed a
traumatic injury claim (Form CA-1) alleging that on October 2, 2019 she injured her back when
she was transferring a veteran from a wheelchair to his bed and he lost his footing, jerking her
along with him, while in the performance of duty. She stopped work on October 17, 2019.
In an October 2, 2019 e-mail, appellant provided details of the incident that occurred during
her evening shift that day. She indicated that when proceeding to help him stand up from under
his arm and he lost his footing, went towards the bed and jerked her along with him. Afterwards,
appellant noted that her back pain had progressively become more irritated throughout the night.
In a medical report and a report of employee’s emergency treatment dated October 4, 2019,
Lisa Savage, a registered nurse, evaluated appellant for lower back pain and stiffness related to the
alleged October 2, 2019 employment incident in which she was attempting to transfer a patient
from his wheelchair to his bed. She assessed a lower back muscle strain and recommended limitedduty work restrictions.
In an October 18, 2019 e-mail, C.P., a supervisor, recalled that on October 17, 2019 she
reprimanded/cautioned appellant two times during the same shift about performing Hoyer transfers
of patients by herself. In an October 21, 2019 statement and an undated statement, A.S. and R.G.,
nursing assistants, explained that on October 17, 2019 they were asked by C.P. if they had assisted
appellant in the transfer of a patient because she had indicated they had. They responded that they
did not provide assistance in transferring the patient.
In an October 25, 2019 letter, the employing establishment controverted appellant’s claim,
asserting that her injury was caused by her own willful misconduct.
In an October 28, 2019 report of contact, an unidentifiable registered nurse with the
employing establishment recounted that it had received an October 18, 2019 letter from appellant’s
provider holding her off work due to an alleged employment-related injury. The registered nurse
indicated that on that same day statements were provided regarding an incident occurring on
October 17, 2019 where appellant repeatedly transferred a patient against medical orders.
Appellant was subsequently reprimanded and a discussion was held with her on October 21, 2019.
It was further noted that she returned to the office on October 25, 2019 to receive a duty status
report (Form CA-17).
Appellant also submitted medical notes dated from October 18 to 31, 2019 from Drs. Amy
Martel and Hillary Alvarez, Board-certified in family medicine, and Liza Ferris, a registered nurse,
requesting that she remain out of work through November 4, 2019 pending evaluation by physical
therapy.

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In an October 31, 2019 physical therapy evaluation, Maria Chorzewski, a physical
therapist, evaluated appellant for right lower back pain related to an October 2, 2019 employment
incident in which she was transferring a patient from his wheelchair when he fell to the side.
A November 4, 2019 Form CA-17 with an illegible signature diagnosed muscle spasms
and low back pain due to the alleged October 2, 2019 employment incident in which appellant was
transferring a patient and suggested that she return to work on November 11, 2019.
In a November 5, 2019 letter, M.D., a workers’ compensation specialist, controverted
appellant’s traumatic injury claim, asserting that she committed willful misconduct. He explained
that appellant utilized unsafe patient handling practices on October 2, 2019 and also on October 17,
2019 when she returned from limited duty. Appellant was counseled on multiple occasions, but
still chose to transfer patients on her own. She was written up and reprimanded for her actions on
October 21, 2019.
In development letters dated November 5 and 12, 2019, OWCP informed appellant that her
claim initially appeared to be a minor injury that resulted in minimal or no lost time from work
and that continuation of pay was not controverted by the employing establishment, and thus,
limited expenses had therefore been authorized. However, a formal decision was now required.
OWCP provided a factual questionnaire inquiring about the circumstances surrounding her
claimed injury for appellant’s completion and requested that she submit a narrative medical report
from her physician, which contained a detailed description of findings and diagnoses, explaining
how the reported incident caused or aggravated her medical condition. It afforded appellant 30
days to respond.
Appellant submitted competency assessment checklists dated July 17 and August 31, 2019
with illegible signatures demonstrating a satisfactory level of lifting competency for multiple
performance criteria.
In an October 18, 2019 medical report, Dr. Martel recounted the alleged October 2, 2019
employment incident in which appellant injured her lower back while transferring a patient from
his wheelchair to his bed and diagnosed low back pain. She recommended that appellant remain
out of work through October 24, 2019 and referred her to physical therapy.
In an October 18, 2019 workers’ compensation form, Nurse Ferris diagnosed a right lumbar
muscle strain and opined that appellant’s injury occurred when she tweaked her right lower back
while transferring a patient. In clinical notes of even date, she suggested that appellant remain out
of work and prescribed medication to treat her injury.
In a November 4, 2019 medical report, Dr. Martel recounted the development of
appellant’s lower back pain as it related to the alleged October 2, 2019 employment incident.
Appellant informed her that she tried to go back to work part time, but the employing establishment
was having difficulty accommodating her schedule. On evaluation Dr. Martel diagnosed back
pain. In a workers’ compensation form of even date, she diagnosed a right lumbar muscle strain.
In a November 21, 2019 medical note, Dr. Martel requested that appellant continue to
remain off work through November 27, 2019 at which time she would be evaluated by orthopedics.

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In a November 27, 2019 Form CA-17 and workers’ compensation medical form, Dr. Levy
Clifford, a Board-certified orthopedic surgeon, diagnosed a lumbar contusion due to the alleged
October 2, 2019 employment incident in which appellant injured her back transferring a patient.
He opined that she could return to limited-duty work with restrictions.
In a November 29, 2019 rehabilitation services reevaluation report, Joshua Clark, a
physical therapist, provided his assessment of appellant’s progression through physical therapy to
treat her low back pain.
By decision dated December 20, 2019, OWCP denied appellant’s traumatic injury claim.
It accepted that the October 2, 2019 employment incident occurred, as alleged, but denied the
claim, finding that the evidence of record was insufficient to establish a valid medical diagnosis in
connection with the accepted employment incident. Therefore, appellant had not met the
requirements to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty, as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be

3

Supra note 2.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q)

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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 incident.8
ANALYSIS
The Board finds this case is not in posture for decision.
Dr. Martel, in her November 4, 2019 medical report and workers’ compensation form,
discussed appellant’s history of low back pain related to the accepted October 2, 2019 employment
incident in which she injured her back transferring a patient from his bed to his wheelchair. On
evaluation she diagnosed back pain and a right lumbar muscle strain. Additionally, in his
November 27, 2019 Form CA-17 and workers’ compensation medical form, Dr. Levy diagnosed
a lumbar contusion due to the accepted October 2, 2019 employment incident. Therefore, the
Board finds that the evidence of record establishes diagnosed medical conditions. OWCP has not
reviewed the medical evidence of record regarding the issue of whether the established diagnoses
are causally related to the accepted October 2, 2019 employment incident.
As the medical evidence of record establishes a diagnosed medical condition, the case must
be remanded for consideration of the medical evidence with regard to the issue of causal
relationship. Following such further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a diagnosed medical
condition. The Board further finds, however, that the case is not in posture for decision as to
whether her diagnosed condition is causally related to the accepted October 2, 2019 employment
incident.

8

J.L., Docket No. 18-1804 (issued April 12, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the December 20, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 27, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.P., Appellant
and
DEPARTMENT OF AGRICULTURE,
AGRICULTURAL MARKETING SERVICE,
Dumas, AR, Employer
__________________________________________

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

Docket No. 10-417
Issued: June 16, 2010

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 December 2, 2009 appellant filed a timely appeal from a November 2, 2009 merit
decision of the Office of Workers’ Compensation Programs regarding an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office properly found that an overpayment of $24,798.01
occurred from July 9, 2007 to March 14, 2009; and (2) whether the Office properly denied
waiver of the overpayment.
FACTUAL HISTORY
On September 23, 2005 appellant, then a 68-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that she injured her right arm when she fell in the performance of duty on

September 20, 2005. The Office accepted the claim for a fracture of the right upper humerus.
Appellant returned to work.1
On November 20, 2006 appellant filed a claim for compensation (Form CA-7), checking
the box for a schedule award. In a December 18, 2006 report, an Office medical adviser found
that appellant had a 15 percent right arm permanent impairment. The date of maximum medical
improvement was August 15, 2006.
On April 6, 2007 the Office issued a schedule award payment for $8,629.38 covering the
period August 15, 2006 to March 17, 2007. A July 6, 2007 payment of $4,612.00 was issued for
the period March 18 to July 6, 2007. Commencing August 4, 2007, the Office issued
compensation payments every 28 days through March 14, 2009.
On March 6, 2009 the Office issued a schedule award decision for a 15 percent right arm
permanent impairment. The period of the award was 46.80 weeks, from August 15, 2006 to
July 8, 2007.
By letter dated March 6, 2009, the Office notified appellant of a preliminary
determination that an overpayment of $26,001.61 was created. It explained that she had
continued to receive compensation payments under the schedule awards after July 8, 2007 after
the period covered by the awards had expired. Appellant was advised she was found not to be at
fault in creating the overpayment.
Appellant requested a telephonic hearing with an Office hearing representative, which
was held on September 23, 2009. On October 9, 2009 she submitted an overpayment recovery
questionnaire (Form OWCP-20) and copies of financial statements. Appellant listed monthly
income of $4,347.00, which included $2,523.00 in social security benefits and $1,824.00 for her
husband’s unemployment insurance. As to expenses, she reported on the form $4,607.00 and
referred to a separate list of expenses. The record contains two lists of expenses, one for
$3,218.00 and another totaling $4,607.00. The latter included higher amounts for some expenses
and additional expenses.2
By decision dated November 2, 2009, the hearing representative found the amount of the
overpayment was $24,798.01. He reduced the preliminary amount by $1,203.00 as appellant
was returned the March 14, 2009 compensation payment. With respect to waiver, the hearing
representative noted that appellant had claimed $3,709.00 in expenses. He found that $807.00 in
claimed expenses were not ordinary and necessary, including expenses for cable television,
cellular phone, expenses for a sister and brother and expenses for a rental property. The hearing
representative found that appellant had sufficient income over expenses and denied waiver of the
overpayment.

1

At a September 23, 2009 telephonic hearing, appellant indicated that she was not currently working.

2

For example, food is $400.00 as opposed to $300.00, and automobile repairs are $200.00 instead of $100.00 in
the former list.

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LEGAL PRECEDENT -- ISSUE 1
The number of weeks of compensation for a schedule award is determined by the
compensation schedule at 5 U.S.C. § 8107(c). For complete loss of use of the arm, the maximum
number of weeks of compensation is 312 weeks. As appellant’s impairment was 15 percent, she
is entitled to 15 percent of 312 weeks, or 46.80 weeks of compensation. It is well established
that the period covered by a schedule award commences on the date that the employee reaches
maximum medical improvement from residuals of the employment injury.3
ANALYSIS -- ISSUE 1
On November 20, 2006 appellant filed a schedule award claim. Based on an Office
medical adviser’s opinion, the Office found that appellant had 15 percent right arm impairment.
It granted a schedule award for 46.80 weeks of compensation from August 15, 2006 to
July 8, 2007. The record reflects, however, that payments continued to March 14, 2009.
Appellant has not claimed compensation for wage loss for disability and there is no evidence of
record to establish that she was entitled to monetary compensation after July 8, 2007. Since he
continued to receive compensation payments after the period of the schedule award, an
overpayment of compensation was created.
With respect to the amount of the overpayment, the Board notes the following. Although
the Office did not clearly explain all of its calculations, the original preliminary determination of
$26,011.61 appeared to be based on receipt of $39,284.17 in compensation from August 15,
2006 to March 14, 2009. It calculated that appellant was entitled to $13,282.56, based on the
payments of $8,629.38, $4,612.00 and one day of compensation for July 8, 2007 at $41.18.
However, the Office failed to account for July 7, 2007. The period of the award was August 15,
2006 to July 8, 2007. The initial payments of $8,629.38 and $4,612.00 covered the period
August 15, 2006 to July 6, 2007. Appellant therefore was entitled to an additional two days of
compensation for July 7 and 8, 2007, or $82.36. Accordingly, her entitlement under the schedule
award was $13,323.74, resulting in an overpayment of $25,960.43. The hearing representative
deducted a payment of $1,203.00 as appellant returned one check. Therefore the amount of the
overpayment is $24,757.43.4
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Federal Employees’ Compensation Act5 provides: “Adjustment or
recovery by the United States may not be made when incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of the
Act or would be against equity and good conscience.”6 Since the Office found appellant to be
3

Albert Valverde, 36 ECAB 233, 237 (1984).

4

The fact that the Office was negligent in continuing to issue checks for permanent impairment does not preclude
recovery.
5

5 U.S.C. § 8101 et seq.

6

Id. at § 8129(b).

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without fault in the creation of the overpayment, the Office may only recover the overpayment if
recovery would neither defeat the purpose of the Act nor be against equity and good conscience.
The guidelines for determining whether recovery of an overpayment would defeat the purpose of
the Act or would be against equity and good conscience are set forth in sections 10.434 to 10.437
of Title 20 of the Code of Federal Regulations.
Section 10.436 of the Code of Federal Regulations provide that recovery of an
overpayment would defeat the purpose of the Act if recovery would cause hardship because the
beneficiary “needs substantially all of his or her current 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 the Office from data provided by the
Bureau of Labor Statistics.7 For waiver under the “defeat the purpose of the Act” standard,
appellant must show that he needs substantially all of his current income to meet current ordinary
and necessary living expenses, and that his assets do not exceed the resource base.8
Section 10.437 of the Code of Federal Regulations provide that recovery of an
overpayment would be against equity and good conscience if: (a) the overpaid individual would
experience severe financial hardship in attempting to repay the debt; (b) the individual, in
reliance on such payments or on notice that such payments would be made, gives up a valuable
right or changes his or her position for the worse.
The Office must exercise its discretion in determining whether waiver is warranted under
either 20 C.F.R. § 10.436 or 10.437. The waiver of or refusal to waive an overpayment of
compensation by the Office rests within its discretion pursuant to statutory guidelines.9
ANALYSIS -- ISSUE 2
The hearing representative found that appellant did not need substantially all her current
income to meet ordinary and necessary living expenses. She reported $4,347.00 in monthly
income. The reported income did include unemployment compensation from her husband, and
Office procedures specifically indicate that unemployment compensation is included in
determining total income available.10
With respect to monthly expenses, appellant provided the Office with two lists of
expenses with significant differences in amounts, and no explanation offered for the differences.
The hearing representative provided a detailed review of appellant’s expenses, and included
amounts that were stated in the $3,218.00 list and other expenses reported on the $4,607.00 list.
7

Office procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6 (October 2004).
8

See Robert E. Wenholz, 38 ECAB 311 (1986).

9

George A. Rodriguez, 57 ECAB 224 (2005).

10

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(2) (October 2004).

4

He specifically excluded some claimed expenses, and provided reasons for the exclusion. Office
procedures limit expenses to “fixed living expenses” including such items as food, clothing and
mortgage payments.11 The hearing representative found that cable television and a cellular
phone, when appellant had a land-based telephone, were not ordinary and necessary expenses.
As to payments to appellant’s sister for a sitter and medical insurance payments for her brother,
allowable expenses are limited to support for others for whom the individual is responsible, such
as dependent child day care.12 The hearing representative also excluded expenses for a rental
property that was not appellant’s residence. Based on the hearing representative’s calculations,
appellant had $2,900.00 in monthly expenses or approximately $1,700.00 in excess income over
expenses.
The Board notes that even if the reported monthly expenses of $4,607.00 were used,
deducting the $800.00 in excluded expenses would result in expenses of approximately
$3,800.00, leaving over $500.00 in excess monthly income. Office procedures indicate that, if
income exceeds expenses by more than $50.00, then a claimant does not need substantially all of
his or her income to meet current necessary expenses.13 The Board finds that the Office hearing
representative properly determined that appellant did not need substantially all her income to
meet ordinary and necessary living expenses. Recovery of the overpayment would therefore not
defeat the purpose of the Act. With respect to the equity and good conscience standard,
appellant did not allege that she gave up a valuable right in reliance on the overpayment.
Moreover, as the above discussion of income and expenses indicates, the record does not
establish a severe financial hardship in repaying the debt. The Board finds the Office properly
exercised its discretion in denying waiver of the overpayment.
On appeal, appellant notes that her income included unemployment compensation, which
is not a permanent source of income. As discussed, Office procedures do include unemployment
compensation in calculating total monthly income. Appellant contends that she cannot repay the
overpayment at the rate of $800.00 per month, as directed by the hearing representative. With
respect to recovery of the overpayment, the Board’s jurisdiction is limited to those instances
where recovery is made from continuing compensation benefits.14 Since the recovery is not from
continuing compensation, the Board does not have jurisdiction over this issue.
CONCLUSION
The Board finds an overpayment of $24,757.43 was created. The Board further finds the
Office properly denied waiver of the overpayment.

11

Id. at Chapter 6.200.6 (a)(3) (October 2004).

12

Id.

13

Id. at Chapter 6.200.6(a)(1) (October 2004).

14

See Levon H. Knight, 40 ECAB 658, 665 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 2, 2009 is affirmed, as modified to reflect an
overpayment of $24,757.43.
Issued: June 16, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pueblo, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1293
Issued: February 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 23, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated June 15, 2005 and April 14, 2006, reducing his
compensation. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation effective
July 9, 2005 based on its determination that the full-time constructed position of medical billing
clerk represented his wage-earning capacity.
FACTUAL HISTORY
On April 21, 2001 appellant, a 35-year-old distribution clerk, filed an occupational injury
claim alleging stress. His claim was accepted for dysthymic disorder (depression) and he was
placed on the periodic rolls.

In a second opinion report dated June 17, 2003, Dr. Robert Kleinman, a Board-certified
forensic psychiatrist, opined that appellant was no longer disabled. He further opined that
appellant could return to work either at the employing establishment or elsewhere.
Appellant submitted reports from his treating physicians. In a November 26, 2003 report,
Dr. Carlos Rodriguez disagreed with Dr. Kleinman’s June 17, 2003 report. He opined that
appellant would be unable to return to work at the employing establishment, due to his current
psychopathology, including anger towards his supervisors. In a report dated April 26, 2004,
Dr. Stephen Bonney also disagreed with Dr. Kleinman’s report. Noting that appellant suffered
from severe major depression with obsessive features and post-traumatic-like anxiety syndrome,
Dr. Bonney opined that appellant would not be able to work at the employing establishment in
any capacity.
The Office determined that a conflict of medical opinion existed between Dr. Kleinman
and appellant’s treating physicians. It referred appellant to Dr. Bert Furmansky, a Boardcertified forensic psychiatrist, for an impartial medical examination. The record contains
ESAFEC reports reflecting that the Office used the Physicians’ Directory System (PDS) in
conjunction with the Marquis Directory of Medical Specialists to select the referee physician.
On July 14, 2004 the Office attempted to schedule appointments with Dr. Laura J. Klein and
Dr. Susan Beausoleil Bograd, both Board-certified psychiatrists in Denver, Colorado. The
reports reflects that both doctors were “too busy” to perform an examination of appellant. A
July 14, 2004 PDS report shows that, after the above-referenced “bypasses,” an appointment was
scheduled with Dr. Furmansky on August 24, 2004. On July 27, 2004 appellant’s representative
objected to the selection of Dr. Furmansky to perform the impartial medical examination.
On August 4, 2004 the Office responded to appellant’s objection, stating that it had
strictly adhered to Office procedures, which required use of the PDS system in conjunction with
the Marquis Directory of Medical Specialists.
In a 22-page report dated August 25, 2004, Dr. Furmansky discussed the history of
injury, reviewed the evidence of record and listed findings on physical examination. He
diagnosed major depressive disorder, chronic, in partial remission; alcoholism and personality
disorder. Dr. Furmansky indicated that appellant had a coexisting and preexisting personality
disturbance, which caused him to be more vulnerable to being taken advantage of by others in
the workplace. He agreed with Drs. Bonney, Rodriguez and Kleinman that the cumulative effect
of work incidents caused appellant’s depression. Indicating that appellant should not return to
the employing establishment, Dr. Furmansky opined that he could return to work outside the
employing establishment eight hours per day, five days per week, with no restrictions. In a
September 15, 2004 work capacity evaluation, Dr. Furmansky stated that, although appellant
should not work for the employing establishment, he could work eight hours per day. By letter
dated September 15, 2004, the Office asked Dr. Furmansky to clarify appellant’s work
restriction, if he obtained a position with an employer other than the employing establishment.
On October 6, 2004 Dr. Furmansky opined that appellant would have no psychiatric restrictions
if employed outside the employing establishment.
On September 20, 2004 the Office referred appellant to a rehabilitation counselor for
vocational rehabilitation. In a report dated October 31, 2004, the rehabilitation counselor

2

reviewed Dr. Furmansky’s work restrictions and transferable skills.
He developed a
reemployment placement plan for placement of appellant with a new employer based on labor
market research. On January 9, 2005 appellant signed an individual rehabilitation plan agreeing
to search for jobs as a truck driver, cashier and maintenance/repairer and hotel clerk in his
geographical region. On January 25, 2005 the Office informed appellant that he would be
provided with 90 days’ job placement assistance, after which his compensation benefits would be
reduced, based on his annual wage-earning capacity of $25,636.00. A vocational rehabilitation
report for the period February 1 through March 4, 2005, reflected that appellant refused to
participate in the job search, claiming that he wanted to open a scuba diving shop instead, at a
cost of $300,000.00. A memorandum from the vocational counselor, dated March 4, 2005,
reflects appellant’s refusal to pursue any of the jobs designated in the rehabilitation plan.
Appellant insisted that he would not accept any job with which he was not happy and was
determined to open a scuba diving shop. In a March 8, 2005 letter to appellant, the vocational
rehabilitation consultant confirmed his refusal to participate in the job search.
In a March 11, 2005 letter, Drs. Bonney and Rodriguez noted a significant deterioration
in appellant’s mental health due to a failed relationship with his vocational rehabilitation
counselor. Determining that appellant was not capable of returning to work due to intense levels
of depression and anxiety, they suggested reassignment to a different counselor. In a March 17,
2005 letter, his representative stated that appellant was unable to participate in the return-to-work
effort at that time, due to his deteriorated condition. On March 25, 2005 the representative asked
the Office to cease all contact between the vocational counselor and appellant. On March 30,
2005 appellant was informed that no new vocational representative would be assigned due to
safety concerns.
In a closing report dated May 5, 2005, the rehabilitation specialist noted that appellant’s
90-day job search had begun on February 1, 2005. As of the date of the report, appellant had not
obtained employment. The rehabilitation counselor submitted job classifications for the
positions of cashier; truck driver, light delivery and building maintenance repairer. The
rehabilitation specialist reviewed the constructed position of cashier 2 and found that it should be
the target job of choice in determining appellant’s wage-earning capacity. He stated that the
work was within appellant’s vocational abilities and was most similar to his employment with
the employing establishment. The rehabilitation specialist noted that appellant had completed
one year of college classes, which thoroughly met the required specific vocational preparation
for such work. He noted that the nature of appellant’s injury, as well as his usual employment,
age, degree of physical impairment and qualifications for other employment had been
considered. The rehabilitation specialist further found that the job was reasonably available
within appellant’s commuting area with average weekly wages of $337.00.
On May 6, 2005 the Office issued a notice of proposed reduction of compensation on the
grounds that appellant was no longer totally disabled and had the capacity to earn the wages of a
cashier, at the rate of $337.20 per week. The record contains a wage-earning capacity
computation reflecting a weekly pay rate when injured of $787.60; current weekly pay rate for
job when injured of $870.56; constructed weekly earning capacity of $337.20 per week;
percentage of new wage-earning capacity of 39 percent; adjusted wage-earning capacity amount
per week of $307.16; loss in wage-earning capacity of $480.44; gross weekly compensation rate
of $387.75 and new compensation rate every four weeks of $1,551.00.

3

By letter dated January 26, 2005, appellant’s representative contended that appellant was
totally disabled. He also claimed that appellant’s wage-loss compensation had been incorrectly
calculated based on a 40-hour workweek, when, in fact, he had worked 32 hours per week at the
time of injury. The record contains a record of appellant’s work schedule for the period
March 25, 2000 through March 31, 2004, showing that appellant worked an average of 23.83
hours per week during that period. A June 15, 2005 pay rate calculation indicates that
appellant’s base hourly pay, for the same period, was $21.76, based on an average 24-hour
workweek ($522.24 per week).
By decision dated June 15, 2005, the Office finalized the reduction of wage-loss
compensation effective July 9, 2005. The Office found that the full-time position of cashier was
medically and vocationally suitable and represented appellant’s wage-earning capacity of
$337.20 per week.
On July 12, 2005 appellant, through his representative, requested an oral hearing. At the
February 24, 2006 hearing, counsel argued that appellant had sustained a recurrence of disability
and was unable to work, due to a conflict with the rehabilitation counselor. He also contended
that the impartial medical examiner had been improperly selected and that appellant’s loss of
wage-earning capacity had been incorrectly calculated, because it had been based on a
constructed 40-hour week, rather than a 32-hour week.
By decision dated April 14, 2006, the Office hearing representative affirmed the June 15,
2006 decision. The hearing representative found that the position of cashier was medically and
vocationally suitable and fairly and reasonably represented appellant’s wage-earning capacity.
He determined that the Office had followed proper procedures in the selection of the impartial
medical specialist and that appellant did not sustain a recurrence of disability. He further found
that counsel argument as to an incorrect pay rate calculation to be without merit, in that appellant
was capable of working 40 hours per week.
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.1 Under section 8115(a), wage-earning capacity is determined
by the actual wages received by an employee if the earnings fairly and reasonably represent his
or her wage-earning capacity. If the actual earnings do not fairly and reasonably represent his or
her wage-earning capacity or if the employee has no actual earnings, his or her wage-earning
capacity is determined with due regard to the nature of the injury, the degree of physical
impairment, his or her usual employment, age, qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect
wage-earning capacity in his or her disabled condition.2

1

David W. Green, 43 ECAB 883 (1992).

2

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

4

When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick,3 will result in the percentage of the employee’s loss of
wage-earning capacity.4
The Board has held that the Office may proceed to a wage-earning capacity
determination based upon a selected position if it has established that appellant, without good
cause, failed to participate in or cooperate with vocational rehabilitation.5
ANALYSIS
The Office determined that the selected position of cashier represented appellant’s
wage-earning capacity based upon Dr. Furmansky’s report and work capacity evaluation, finding
that appellant could work eight hours per day, so long as he was not employed by the employing
establishment. The Board finds the position of cashier was medically and vocationally suitable
and represented appellant’s wage-earning capacity. However, the Board further finds that the
Office improperly calculated appellant’s loss of wage-earning capacity by using an incorrect pay
rate.
As appellant did not have actual earnings which fairly and reasonably represented his
wage-earning capacity, the Office properly selected a position for determination of wage-earning
capacity. The weight of the medical evidence supports that appellant is not totally disabled. The
Office found a conflict in medical opinion between the Office’s referral physician, Dr. Kleinman,
who found that appellant had no further residuals of his employment injury and could return to
his regular employment and appellant’s attending physicians, Drs. Rodriguez and Bonney, who
opined that appellant could not return to work at the employing establishment in any capacity.
On August 25, 2004 Dr. Furmansky, a Board-certified forensic psychiatrist, performed an
impartial medical examination. In an extensive report, he discussed the history of injury,
reviewed the evidence of record and listed findings on physical examination. Dr. Furmansky
diagnosed major depressive and personality disorders. He indicated that appellant had a
coexisting and preexisting personality disturbance, which caused him to be more vulnerable to be
taken advantage of by others in the workplace. Dr. Furmansky agreed with Drs. Bonney,
Rodriguez and Kleinman that the cumulative effect of work incidents caused appellant’s
depression. He advised that appellant not return to work at the employing establishment.
Dr. Furmansky opined that he could return to work outside the employing establishment eight

3

5 ECAB 376 (1953).

4

James A. Birt, 51 ECAB 291 (2000); Francisco Bermudez, 51 ECAB 506 (2000).

5

See Daniel Renard, 51 ECAB 466 (2000).

5

hours per day, five days per week, with no restrictions. In an October 6, 2004 letter intended to
clarify his report, Dr. Furmansky opined that appellant would have no psychiatric restrictions if
employed outside the employing establishment.
In situations where there are 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 on a proper
factual background, must be given special weight.6 In this case, Dr. Furmansky provided a
detailed report expressing his opinion that appellant was not totally disabled and providing work
restrictions. He relied on his psychiatric examination of appellant, a review of the medical
evidence of record, including the results of objective testing and the history of injury in reaching
his conclusions. The Board finds that Dr. Furmansky provided a detailed and well-rationalized
report based on a proper factual background and thus his opinion is entitled to the special weight
accorded an impartial medical examiner. His report, therefore, constitutes the weight of the
medical opinion evidence and establishes that appellant was capable of performing work within
the provided work restrictions. As the job classification of a cashier is sedentary and is not
located within the employing establishment, the medical evidence supports a finding that
appellant has the physical and mental capacity to perform the duties of the position.
Appellant contends that the impartial medical examiner was not properly selected by the
Office. The Board finds this contention to be without merit. A physician selected by the Office
to serve as an impartial medical specialist should be one wholly free to make a completely
independent evaluation and judgment. In order to achieve this, the Office has developed specific
procedures for the selection of impartial medical specialists designed to provide adequate
safeguards against any possible appearance that the selected physician’s opinion was biased or
prejudiced.7 These procedures, set forth in the Federal (FECA) Procedure Manual, provide, in
pertinent part, as follows:
“b. Selection of [p]hysician. The [claims examiner] may use Form CA-19,
[r]equest for [s]pecialist [r]eferral to initiate the referral. Unlike selection of
second opinion examining physicians, selection of referee physicians is made by a
strict rotational system using appropriate medical directories. The [PDS],
including physicians listed in the American Board of Medical Specialties
Directory and specialists certified by the American Osteopathic Association,
should be used for this purpose.
“(1) The services of all available and qualified Board-certified specialists will be
used as far as possible to eliminate any inference of bias or partiality. This is
accomplished by selecting specialists in alphabetical order as listed in the roster
chosen under the specialty and/or subspecialty heading in the appropriate
geographic area and repeating the process when the list is exhausted. A physician
who is not Board-certified may be used if he or she has special qualifications for

6

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

7

Charles M. David, 48 ECAB 543 (1997).

6

performing the examination, but the MMA must document the reasons for the
selection in the case record.”8
The record contains ESAFEC reports reflecting that the Office used the PDS system in
conjunction with the Marquis Directory of Medical Specialists to select the referee physician.
On July 14, 2004 attempts were made to schedule appointments with Dr. Laura J. Klein and
Dr. Susan Beausoleil Bograd, both Board-certified psychiatrists in Denver, Colorado. The
reports reflects that both physicians were not available to perform an examination of appellant.
The July 14, 2004 PDS report shows that, after the above-referenced “bypasses,” an appointment
was scheduled with Dr. Furmansky on August 24, 2004. The Board finds that the Office
properly followed its internal procedures in the selection of Dr. Furmansky. The Board notes
that the conclusion of the impartial medical examiner is fundamentally the same as that of
appellant’s treating physicians. All doctors opined that appellant could work full time, so long as
he was not employed by the Postal Service.
Appellant’s vocational rehabilitation counselor determined that he was able to perform
the position of cashier and that the position was available in sufficient numbers so as to make it
reasonably available within his commuting area. Based on appellant’s prior work experience and
educational background, he qualified for position of cashier. Although he signed a 90-day job
search agreement, appellant refused to actively search for any position identified in his
rehabilitation plan or to accept any position with which he was “not happy.” Based upon
appellant’s refusal to participate in the job search and his failure to obtain employment within the
90-day period, the Office properly proceeded to a wage-earning capacity determination based
upon the selected position of cashier. The Office considered the proper factors, such as
availability of employment and appellant’s physical limitations, usual employment, age and
employment qualifications, in determining that the medical cashier position represented his
wage-earning capacity.9 The weight of the evidence of record establishes that appellant had the
requisite physical ability, skill and experience to perform the duties of cashier and that such a
position was reasonably available within the general labor market of his commuting area.
The Office found that the full-time position of cashier was medically and vocationally
suitable and represented appellant’s wage earning capacity of $337.20 per week. The record
contains a wage-earning capacity computation reflecting a weekly pay rate when injured of
$787.60; current weekly pay rate for job when injured of $870.56 (April 21, 2001); constructed
weekly earning capacity of $337.20 per week; percentage of new wage-earning capacity of 39
percent; adjusted wage-earning capacity amount per week of $307.16; loss in wage-earning
capacity of $480.44; gross weekly compensation rate of $387.75 and new compensation rate
every four weeks of $1,551.00.
In this case, the Office based its determination on the selected position of full-time
cashier, although appellant was only working as a part-time clerk at the time of injury. The
hearing representative agreed that appellant’s wage-earning capacity should be based on his
present ability to work full time, in spite of the fact that appellant worked part time on the date of
8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (May 2003).

9

Loni J. Cleveland, 52 ECAB 171 (2000).

7

injury. However, this application produces an inequitable result. Section 8115(a) of the Federal
Employees’ Compensation Act provides that, if a claimant’s actual earnings do not fairly and
reasonably represent wage-earning capacity, then it should be determined with regard to specific
criteria, including his usual employment. Appellant’s usual employment, i.e., his employment
on the date of injury, was part time, not full time. Thus, the Office based its wage-earning
capacity decision on an incorrect, inflated salary. Appellant’s loss of wage-earning capacity
should be determined by comparing consistent work schedules. In the instant case, appellant
worked approximately 30 hours per week and earned approximately $26.00 per hour on the date
of injury ($787.60 per week). Based upon the constructed position of cashier, the Office imputed
income to appellant in the amount of $8.43 per hour for a 40-hour week and concluded that he
had a wage-earning capacity of $337.20 per week. Application of the Shadrick10 formula
resulted in a monthly compensation rate of $1,551.00. The Board will set aside this aspect of the
case for remand to the Office for a proper determination of appellant’s wage-earning capacity
consistent with his part-time employment.
CONCLUSION
The Board finds that the Office properly found that the position of cashier was medically
and vocationally suitable and represented appellant’s wage-earning capacity. However, the
Board further finds that the Office improperly calculated appellant’s loss of wage-earning
capacity by using an incorrect pay rate. This case must be set aside and remanded to the Office
for a proper determination of appellant’s wage-earning capacity consistent with his part-time
employment and calculation of his correct pay rate in accordance with section 8114 of the Act.

10

See supra note 3.

8

ORDER
IT IS HEREBY ORDERED THAT the April 14, 2006 and June 15, 2005 decisions of
the Office of Workers’ Compensation Programs are affirmed as to the finding that the position of
cashier was medically and vocationally suitable and fairly and reasonably represented appellant’s
wage-earning capacity. It is further ordered that the aforementioned decisions are set aside and
remanded to the Office for a proper determination of appellant’s wage-earning capacity
consistent with his part-time employment and calculation of his correct pay rate in accordance
with section 8114 of the Act.
Issued: February 12, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9


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

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

Docket No. 17-0203
Issued: April 5, 2017

Case Submitted on the Record

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

JURISDICTION
On November 8, 2016 appellant, through counsel, filed a timely appeal from a
September 16, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from the last merit decision dated July 6, 2015, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 5, 2014 appellant, then a 42-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that he sustained bilateral degenerative knee conditions on or before
April 22, 2014 in the performance of duty. He attributed these conditions to prolonged walking
and standing. Appellant mentioned an alleged employment-related accident occurring on
February 12, 2013,3 in which he was struck by a crab cage and experienced back and right knee
pain. He stopped work on May 17, 2014.
Appellant provided June 6, 2014 x-rays of both knees showing degenerative changes with
joint space narrowing and osteophyte formation. A June 9, 2014 magnetic resonance imaging
(MRI) scan of the left knee showed lateral patellar subluxation, multiple surface tears of the
posterior horn of the medial meniscus, and diffuse soft tissue swelling.4
In a July 9, 2014 letter, OWCP advised appellant of the additional evidence needed to
establish his claim, including a report from his attending physician explaining how and why the
identified work factors would cause the claimed bilateral knee condition.
In response, appellant submitted an undated statement noting that he experienced several
months of knee and back pain following the alleged February 12, 2013 employment injury.
While working as an acting dock supervisor beginning in December 2014, he experienced
increased knee pain which he attributed to his new job duties. Appellant asserted that his left
knee worsened due to overcompensating for his injured right knee.
Dr. Harvey Bishow, an attending Board-certified orthopedic surgeon, provided a June 3,
2014 report reiterating appellant’s account of the alleged February 12, 2013 employment injury,
with the onset of bilateral knee pain and swelling on April 22, 2014. He diagnosed internal
derangement of both knees. On June 17, 2014 Dr. Bishow diagnosed medial and lateral meniscal
tears superimposed on degenerative joint disease of both knees. He opined that the alleged
February 12, 2013 employment injury “was the proximate and direct cause” of appellant’s
bilateral knee condition. Dr. Bishow held appellant off work.
Dr. Richard M. Blecha, an attending Board-certified orthopedic surgeon, examined
appellant on July 30, 2014. He diagnosed degenerative arthritis, patellar subluxation, and a torn
medial meniscus of the right knee. Dr. Blecha prescribed physical therapy.
Dr. Robert Reppy, an attending osteopath Board-certified in family practice, noted on
August 6, 2014 that appellant weighed 455 pounds. He diagnosed bilateral meniscal tears and
3

Under File No. xxxxxx901, appellant claimed a February 12, 2013 traumatic right knee injury. OWCP denied
the claim. That claim is not before the Board on the present appeal.
4

Appellant also submitted June 2014 physical therapy notes.

2

osteoarthritis, with chondromalacia of the right patella. Dr. Reppy held appellant off work. In
an August 13, 2014 letter, he provided an account of an occupational left knee injury in which a
crab cage struck appellant’s left hip, “knocking him into another person and causing him to twist
his left knee as he fell to the ground.” Dr. Reppy opined that the twisting motion of the fall
caused meniscal tears in the left knee, with chondromalacia and osteoarthritis due to wear and
tear when he returned to work following the traumatic incident. He explained that meniscal tears
were caused by “rotational motion of the knee joint while weight is on it. This is precisely what
occurred with [appellant] when he twisted his knee as he fell.… [T]he condyle of the end of the
femur catches on the thin central edge of the meniscus as it tapers toward the center, and then
when the knee rotates, it grabs the meniscal cartilage with it as it rotates and causes it to tear.”
Dr. Reppy opined that appellant’s “right knee injury must be considered as a consequential
injury subsequent to profound gait disturbances in response to accommodating the left knee
injury.” He commented that appellant’s morbid obesity would complicate and accelerate
degenerative joint disease, but was not the sole cause. On September 4, 2014 Dr. Reppy noted
that appellant would undergo bariatric surgery.
By decision dated September 16, 2014, OWCP denied the claim, finding that the medical
evidence of record was insufficient to establish causal relationship. It accepted that appellant’s
duties required prolonged standing and walking as alleged. However, appellant’s physicians did
not explain how or why these work factors would cause a bilateral knee condition.
Appellant disagreed and requested that a telephonic hearing be held before an OWCP
hearing representative on May 4, 2015. At the hearing, counsel asserted that appellant’s bilateral
knee condition was due to rotational forces as described by Dr. Reppy, and not the alleged
February 12, 2013 employment injury. He alleged that OWCP sought to deny appellant’s
occupational disease claim as it previously rejected his traumatic injury claim. Appellant
contended that he had no traumatic injury to his legs other than the February 12, 2013 right knee
injury. He submitted additional medical evidence.
Dr. Reppy released appellant to restricted duty for four hours a day on or about
September 17, 2014.
He increased appellant’s schedule to eight hours a day as of
November 14, 2014. On January 5, 2015 Dr. Reppy opined that the cumulative effect of years of
prolonged walking and standing at work, along with the rotational force of twisting while sorting
mail, caused appellant’s bilateral meniscal tears. On April 14, 2015 he reiterated that the
rotational forces of twisting while sorting mail caused microtraumas of the cartilage in both
knees, resulting in meniscal tears. Meniscal degeneration caused stress on bones, resulting in the
surface wear and osteoarthritis.
Dr. Bishow provided December 9, 2014 and January 28, 2015 reports noting continuing
bilateral knee pain due to meniscal tears and osteoarthritis. He commented that appellant was
working full time with restrictions.
In a July 6, 2015 decision, an OWCP hearing representative affirmed the September 16,
2014 decision, finding that the medical evidence of record was insufficient to establish causal
relationship. She found that Dr. Reppy’s reports were insufficient to meet appellant’s burden of
proof as they were contradictory and factually inaccurate. The hearing representative observed
that Dr. Bishow noted that appellant had right knee pain after the alleged February 21, 2013

3

employment injury, whereas Dr. Reppy reported no history of right knee pain before
April 22, 2014. Also, Dr. Reppy variously attributed appellant’s knee conditions to his work
“duties” and to work “events.” Additionally, his August 13, 2014 report appeared to reverse the
history of injury, noting that a February 12, 2013 left knee injury caused consequential right knee
conditions. Appellant then appealed to the Board.
During the pendency of the prior appeal, appellant submitted to OWCP periodic reports
from Dr. Reppy dated from September 29, 2015 to May 24, 2016, noting an improvement in
appellant’s bilateral knee pain due to significant weight loss following a March 2015 lap band
surgery. He diagnosed chondromalacia of the right patella, bilateral medial meniscus tears, and
bilateral knee osteoarthritis.5 On April 19, 2016 Dr. Reppy opined that these conditions were
“directly and proximately caused by the April 2, 2014 injury … rather than his daily life
activities. The diagnoses are pathomechanically related to work. [Appellant’s] condition will
never be what it would have been without the injury.”
By order issued June 20, 2016, the Board dismissed the appeal docketed as 16-0285 at
counsel’s request.6
On June 21, 2016 counsel requested reconsideration of the July 6, 2015 decision. He
submitted additional medical evidence.
Dr. Reppy provided a February 16, 2016 narrative report addressing the deficiencies
noted by the hearing representative. He concurred with Dr. Bishow that appellant sustained a
February 12, 2013 right knee injury, but that it had resolved before the April 22, 2014 right knee
injury. Dr. Reppy noted that OWCP misinterpreted this history as an absence of all right knee
symptoms before the accepted April 22, 2014 injury. He explained that the February 12, 2013
incident caused a meniscal tear in the right knee, which over time caused a consequential
meniscal tear in the left knee. Dr. Reppy noted that the right meniscal tear was directly caused
by the February 12, 2013 work incident. He clarified that in his August 13, 2014 report, he
meant to refer to the right knee injury as being first in time, with the left knee conditions
consequential to that injury. Dr. Reppy also clarified that he used the terms “work duties” and
“work events” interchangeably, as appellant’s work duties were occupational events.
Dr. Reppy submitted periodic chart notes from June 29 to August 24, 2016. In an
August 25, 2016 letter, he requested that OWCP use the correct diagnoses of chondromalacia
patella, right knee, bilateral medial meniscus tears, and osteoarthritis of both knees.7

5

An October 19, 2015 MRI scan of the right knee showed a tear of the posterior horn of the medial meniscus, and
mild-to-moderate osteoarthritis of the medial joint space. An October 19, 2015 MRI scan of the left knee showed
anterior horn and medial meniscal tears, and moderate-to-severe osteoarthritis of the medial joint space. Appellant
participated in physical therapy from November 2015 through June 2016.
6

Order Dismissing Appeal, Docket No. 16-0285 (issued June 20, 2016).

7

Appellant participated in physical therapy in July and August 2016.

4

By decision dated September 16, 2016, OWCP denied appellant’s request for
reconsideration, finding that the additional evidence submitted was cumulative and repetitious,
and therefore did not warrant a review of the merits of the claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that OWCP erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute
relevant and pertinent new evidence not previously considered by OWCP.9 Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.10
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.11 Appellant need only
submit relevant and pertinent new evidence not previously considered by OWCP.12 When
reviewing an OWCP decision denying a merit review, the function of the Board is to determine
whether OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.13
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim.
On June 21, 2016 OWCP received appellant’s timely request for reconsideration. By
decision dated September 16, 2016, it found that he had failed to submit relevant and pertinent
new evidence or argument in support of his reconsideration request and denied reconsideration
of the merits of his occupational disease claim.
The most recent merit decision in this case is the July 6, 2015 decision of OWCP’s
hearing representative. The hearing representative denied appellant’s occupational disease claim
for bilateral knee conditions, finding that the opinion of Dr. Reppy, an attending osteopathic
physician Board-certified in family practice, was inaccurate and contradictory. He contended
that Dr. Reppy did not include a history of right knee pain prior to April 22, 2014, that he
8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b)(3).

10

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

11

Helen E. Tschantz, 39 ECAB 1382 (1988).

12

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

13

Annette Louise, 54 ECAB 783 (2003).

5

attributed appellant’s knee conditions both to work “duties” and work “events,” and that
Dr. Reppy’s August 13, 2014 report referred to the left knee where it should have addressed the
right knee.
In support of his request for reconsideration, appellant submitted additional reports from
Dr. Reppy, including a February16, 2016 narrative report. Dr. Reppy directly addressed the
points mentioned by the hearing representative, explaining that a prior right knee injury had
resolved completely prior to April 22, 2014, and that work duties and events were
interchangeable terms. He also clarified that, in his August 13, 2014 report, he meant to refer to
appellant’s right knee where he referred to the left knee instead.
It is well established that the requirement for reopening a claim for further merit review
before OWCP does not require a claimant to submit all evidence necessary to discharge his
burden of proof. Rather, the requirement for reopening a case specifies only that the evidence be
relevant, pertinent, and not previously considered by OWCP. The presentation of such new
evidence creates the necessity for review of the full case record in order to properly determine
whether the newly submitted evidence warrants modification of an earlier decision.14
In this case, appellant responded to specific deficits in his medical evidence described by
the hearing representative and submitted additional reports from Dr. Reppy to address these
defects. Dr. Reppy’s new reports, in particular his February 16, 2016 narrative, were new to the
record and relevant to the issue of causal relationship adjudicated by the hearing representative’s
July 6, 2015 decision.15 The Board finds that these new reports are relevant and pertinent to the
issue of whether appellant sustained a bilateral knee condition in the performance of duty. Thus,
a merit review is warranted.
On appeal, counsel asserts that OWCP’s September 16, 2016 decision is contrary to fact
and law. As set forth above, the case will be remanded for additional development.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim under 5 U.S.C. § 8128 of FECA.

14

D.B., Docket No. 16-1214 (issued December 6, 2016).

15

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 16, 2016 is set aside and the case is remanded to
OWCP for further actions consistent with this decision.
Issued: April 5, 2017
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 15-0975
Issued: August 5, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 31, 2015 appellant filed a timely appeal from a January 9, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the filing of this appeal and the last merit decision issued on May 9, 2014, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On January 31, 2014 appellant, then a 58-year-old distribution, sales, and services
associate, filed an occupational disease claim (Form CA-2) alleging tendinitis and carpal tunnel
syndrome due to repetitive movements at work. These movements included throwing parcels
and processing mail. Appellant reported that she had previous right hand surgery in
January 2012 and returned to work in March 2012 with restrictions for her right hand. She stated
that she did everything with her left hand and over time developed the same problems in her left
hand. Appellant first became aware of her condition on January 18, 2013 and first realized it
resulted from her employment on January 19, 2013. She stopped work on December 16, 2013
and did not return.
On November 7, 2013 the employing establishment controverted appellant’s claim
arguing that she had failed to provide medical documentation establishing a causal relationship
between a diagnosed condition and her employment. It noted that appellant’s previous right
hand surgery was not employment related. OWCP also received a position description for a
distribution, sales, and services associate.
In a February 19, 2014 letter, OWCP informed appellant that the evidence of record was
insufficient to support her claim. It requested a medical report containing a physician’s opinion
with a medical explanation of how her work factors caused the claimed condition. OWCP also
requested that the employing establishment provide comments from a knowledgeable supervisor
on the accuracy of appellant’s statements.
In a December 16, 2013 operative report, Dr. Linda Cendales, a general surgeon, reported
that appellant underwent left wrist surgery to treat de Quervain’s disease. She reported, in a
March 12, 2014 form report, that appellant was seen on December 27, 2013 for left wrist pain.
Dr. Cendales diagnosed de Quervain’s disease and indicated that appellant could return to
limited duty on April 4, 2014.
In a March 13, 2014 statement, appellant described her employment duties as breaking
down mail, throwing parcels, and casing letters. She confirmed having surgery on her right wrist
and indicated that it was to treat a repetitive stress injury.
On May 9, 2014 OWCP denied appellant’s claim, finding that the medical evidence did
not demonstrate that appellant’s condition was causally related to her employment.
By letter dated September 9, 2014, received on September 17, 2014, appellant requested
reconsideration on September 9, 2014. She did not submit additional evidence or offer
arguments in support of her request.
In a January 9, 2015 decision, OWCP denied appellant’s request for reconsideration
finding it insufficient to warrant a merit review of its prior decision.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under § 8128(a) of FECA, OWCP
regulations provide that a claimant must: (1) show that OWCP erroneously applied or
2

interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.3 Where the request for reconsideration fails to meet at least one of these
standards, OWCP will deny the application for reconsideration without reopening the case for
review of the merits.4
ANALYSIS
In a May 9, 2014 decision, OWCP denied appellant’s occupational disease claim and on
September 9, 2014 appellant requested reconsideration.
The Board has no jurisdiction over the merits of appellant’s claim and can consider only
whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), which would prompt
OWCP to reopen the case for merit review. In her September 9, 2014 request for
reconsideration, appellant did not submit any new and pertinent evidence, advance a relevant
legal argument not previously considered, or contend that OWCP erroneously applied or
interpreted a specific point of law. Accordingly, the Board finds that OWCP properly denied
merit review.5
On appeal, appellant contends that OWCP failed to consider medical evidence that she
submitted with her request for reconsideration. She asserts that it might have been misplaced.6
However, there is no evidence on record that appellant submitted any documentation with her
request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a) without further merit review.

3

Id. at § 10.606(b)(3); see J.M., Docket No. 09-218 (issued July 24, 2009).

4

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

5

See J.C., Docket No. 11-236 (issued August 12, 2011).

6

Specifically, appellant describes a medical report, not found in the case record, in which an unnamed physician
allegedly stated that appellant’s injury was most likely caused by her repetitive work duties.

3

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF THE ARMY, DIRECTOR
OF LOGISTICS, Fort Rucker, AL, Employer
__________________________________________

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

Docket No. 08-1765
Issued: February 2, 2009

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 June 5, 2008 appellant filed a timely appeal from the August 28, 2007 and May 19,
2008 decisions of the Office of Workers’ Compensation Programs which affirmed the denial of
his claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he is entitled to a schedule award for
impairment to his lower extremities.
FACTUAL HISTORY
On April 6, 2000 appellant, then a 47-year-old clerk, pulled a muscle in his back while
lifting a five-gallon bottle of water. The Office accepted the claim for displacement of lumbar

intervertebral disc without myelopathy.
October 31, 2000.1

Appellant returned to light-duty work on

On November 30, 2000 Dr. David Chandler, a treating physician, diagnosed back pain,
sciatica, lumbar spondylosis, herniated nucleus pulposus and lumbar strain. Using the fourth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), he determined that appellant had a five percent whole person
impairment due to his thoracolumbar spine impairment. The Office authorized L5-S1
discectomy surgery, which was performed on March 15, 2001. Appellant returned to light-duty
work on September 26, 2001, stopped on October 2, 2002 and returned to light-duty work on
January 2, 2003.
On January 6 and September 30, 2001 appellant filed claims for a schedule award.
By letters dated September 5, 2002 and July 14, 2003, the Office requested Dr. Henry H.
Barnard, II, a treating Board-certified orthopedic surgeon, to provide an impairment rating for
appellant’s lower extremities using the fifth edition of the A.M.A., Guides.
In a February 24, 2004 form report, Dr. Barnard diagnosed herniated nucleus pulposus of
the lumbar spine. He was unable to provide a permanent impairment rating as appellant had not
reached maximum medical improvement at that time.
By letter dated July 28, 2004, the Office requested Dr. Barnard provide an impairment
rating for appellant’s lower extremities using the fifth edition of the A.M.A., Guides.
In a report dated August 6, 2004, Dr. Barnard noted that appellant’s medical history had
become complicated since his April 2000 employment injury which resulted in L5-S1 discogenic
pain and that he underwent transforminal lumbar interbody fusion. Using the A.M.A., Guides,
he determined that appellant had 10 percent whole person impairment as a result of his back
fusion surgery.
In a letter dated March 2, 2006, the Office informed Dr. Barnard that a schedule award
was not paid for an impairment to the back or for whole body impairments. It noted that a
schedule award was payable for any impairment to appellant’s lower extremities.
In a June 4, 2007 report, Dr. Barnard reported that appellant was unchanged
neurologically and had “no focal motor or strength deficits, reflex asymmetry or sensory
changes.”
In an August 16, 2007 report, the Office medical adviser determined that appellant had no
impairment to his lower extremities. He noted that appellant underwent a spiral fusion with good
results and no focal motor or sensory deficits to the lower extremities as noted by Dr. Bernard.
By decision dated August 28, 2007, the Office denied appellant’s claim for a schedule
award on the grounds that he had no lower extremity impairment.
1

In an April 24, 2007 letter, appellant noted that he had retired from the employing establishment.

2

On September 1, 2007 appellant requested an oral hearing before an Office hearing
representative, which was held on March 5, 2008.
In a report dated March 10, 2008, Dr. Barnard noted that appellant had back pain and
sustained 20 percent whole person impairment pursuant to the A.M.A., Guides. A physical
examination revealed appellant was unchanged neurologically and that he had “no focal motor or
strength deficits, reflex asymmetry or sensory changes.”
By decision dated May 19, 2008, the Office hearing representative affirmed the
August 28, 2007 decision.2 He found that the Office properly determined that the medical
evidence was insufficient to establish any permanent impairment to appellant’s lower
extremities.
LEGAL PRECEDENT
Pursuant to section 8107 of the Federal Employees’ Compensation Act3 and section
10.404 of the implementing federal regulation,4 schedule awards are payable for permanent
impairment of specified body members, functions or organs. The Act, however, does not specify
the manner in which the percentage of impairment shall be determined. For consistent results
and to ensure equal justice under the law for all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides5 has been adopted by the Office, and the Board has concurred
in such adoption, as an appropriate standard for evaluating schedule losses.6
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.7 In
1960, amendments to the Act modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.8
2

The Board notes that, following the hearing representative’s May 19, 2008 decision, the Office received
additional evidence. However, the Board may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

5 U.S.C. § 8107(c).

4

20 C.F.R. § 10.404.

5

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

6

James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287 (1989); Francis John Kilcoyne, 38
ECAB 168 (1986).
7

D.N., 59 ECAB ___ (Docket No. 07-1940, issued June 17, 2008); Pamela J. Darling, 49 ECAB 286 (1998).

8

See J.Q., 59 ECAB __ (Docket No. 06-2152, issued March 5, 2008); Vanessa Young, 55 ECAB 575 (2004).

3

ANALYSIS
The Board finds that the medical evidence fails to establish that appellant sustained any
permanent impairment to a scheduled member of the body. The Office accepted appellant’s
claim for displacement of lumbar intervertebral disc without myelopathy. Although appellant
may not receive a schedule award for permanent impairment to his back,9 he may be entitled to a
schedule award for any permanent impairment to his lower extremities, provided the medical
evidence establishes such impairment.10 The Board finds that the medical evidence of record
does not establish that he sustained permanent impairment to his legs due to the accepted back
conditions.
Dr. Barnard advised that appellant had a spinal fusion surgery and residual back pain. He
determined that appellant had 10 percent whole person impairment due to his back surgery and
found 20 percent whole person impairment in a June 4, 2007 report. In a November 30, 2000
report, Dr. Chandler concluded that appellant had five percent whole person impairment due to
his spinal condition. The whole person impairment ratings made by both physicians with regard
to appellant’s back is not compensable under the Act. As noted, the Act does not authorize
schedule awards for permanent impairment of the spine or for the whole person.11 Therefore, the
opinions of Drs. Barnard and Chandler do not establish a ratable impairment to a scheduled
member. Moreover, Dr. Barnard advised that appellant had no sensory or motor deficits in the
lower extremities. Thus, reports by Dr. Barnard and Chandler are insufficient to establish
appellant’s entitlement to a schedule award.
The Office medical adviser properly reviewed the medical evidence and found no basis
for rating impairment to a scheduled member of the body.12 He noted that Dr. Barnard’s whole
person rating, which was based on appellant’s spinal impairment, was not in reference to a
scheduled member of the body. The medical adviser properly concluded that there was no
medical evidence of impairment to either lower extremity resulting from the accepted conditions
and that, therefore, there was no ratable impairment in this case.
Appellant did not submit sufficient medical evidence to establish that he sustained a
permanent impairment to a specified member, organ or function of the body listed in the Act or
its implementing regulations. The medical evidence of record supports that he has no lower
extremity impairment. The Board finds that appellant is not entitled to a schedule award as a
result of his employment-related accepted back condition.
9

5 U.S.C. § 8101(19); R.S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007); James E. Mills, 43
ECAB 215 (1991).
10

N.M., 58 ECAB ___ (Docket No. 06-2054, issued January 12, 2007); George E. Williams, 44 ECAB
530 (1993).
11

See D.H., 58 ECAB ___ (Docket No. 06-2160, issued February 12, 2007). See also Jesse Mendoza, 54 ECAB
802 (2003). The Act provides at section 8101(20) that the brain, heart and back are excluded under the term organ.
5 U.S.C. § 8101(20).
12

The Board notes that it is appropriate for an Office medical adviser to review the clinical findings of the
treating physician to determine the permanent impairment. See Federal (FECA) Procedure Manual, Part 3 -Medical, Medical Examinations, Chapter 3.500.5(c) (March 1994); Richard R. LeMay, 56 ECAB 341 (2006).

4

CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 19, 2008 and August 28, 2007 are affirmed.
Issued: February 2, 2009
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

5