United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SAFETY
ADMINISTRATION-FEDERAL AIR
MARSHAL SERVICE, El Segundo, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)
)

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

Docket No. 16-0586
Issued: August 9, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 8, 2016 appellant, through counsel, filed a timely appeal from a
November 23, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this claim.

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 appellant has met his burden of proof to establish an injury on
October 16, 2014 causally related to the accepted employment incident.
FACTUAL HISTORY
On October 27, 2014 appellant, then a 54-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that on October 16, 2014 he sustained left-side cervical nerve
impingement. He indicated that he had previously been to his neurologist on August 31, 2014
for tingling in his left hand and was diagnosed with left-sided cervical nerve impingement.3
Appellant’s supervisor noted on the claim form that the injury occurred in the performance of
duty.
An October 28, 2014 magnetic resonance imaging (MRI) scan from Dr. Kamron Izadi, a
neuroradiologist, showed degenerative changes of the cervical spine with moderate-to-severe
left-sided neural foraminal stenosis, mild spinal stenosis at C5-6 with mild-to-moderate bilateral
neural foraminal stenosis.
In an October 29, 2014 e-mail, Gerardo Gonzalez4 stated that on October 16, 2014
appellant participated in a Mission Ready Physical Assessment (MRPA), which consisted of
pull-ups, push-ups, sit-ups, and a mile and a half run. Appellant had informed him on
October 23, 2014 of an injury and reported that appellant had experienced soreness in his neck,
shoulder, and arm area after the test. Mr. Gonzalez indicated that everyone who was present at
the assessment, including the instructor, were witnesses to appellant’s participation.
By a November 3, 2014 e-mail message to Douglas M. Flynn, an employing
establishment injury compensation specialist, appellant indicated that he saw his physician on
October 22, 2014 and reported the injury to his supervisor on October 23, 2014. He was taken
off flight status and remained home until October 27, 2014, at which time he submitted the
(Form CA-1). Appellant explained that he did not participate in any activities that could have
caused or aggravated his condition other than MRPA, pull-ups, push-ups, and sit-ups. He stated,
“If anything, lifting my carry-on luggage into and out of the overhead storage on the aircraft I
was working on probably aggravated my condition.”
In a November 14, 2014 attending physician’s report (Form CA-20), Dr. Lokesh S.
Tantuwaya, a Board-certified neurological surgeon, indicated that appellant reported a date of
injury of October 16, 2014 at which time he was performing his fitness-ready test. Appellant
began to experience neck and arm pain after performing pull-ups and continued the test and did
push-ups, and a run. He developed radiating pain into his left arm the next day. Dr. Tantuwaya
diagnosed cervical disc displacement and cervical spinal stenosis and checked the box marked
“yes” as to whether the conditions were caused or aggravated by an employment factor.
3

Under file number xxxxxx933, appellant filed a traumatic injury for a March 8, 2005 event alleging back and
neck injury. The case was never formally adjudicated and was administratively closed upon receipt.
4

The record is unclear as to whether Mr. Gonzalez is a coworker.

2

On November 14, 2014 OWCP received a copy of an October 17, 2014 limited-duty job
offer.
In a November 18, 2014 report, Dr. Tantuwaya noted that appellant was employed as a
Federal Air Marshal for 12 years and worked 8 to 10 hours per day for a total of 40 to 50 hours
per week. He noted that in 2005, appellant had sustained a work-related cervical injury, but was
treated with medication and the condition resolved. Dr. Tantuwaya described appellant’s work
duties. He reported that over the summer appellant began experiencing numbness in his left
hand and forearm and his physician ordered an electromyogram (EMG) and nerve conduction
velocity study. Appellant went to physical therapy and his symptoms resolved. He reported to
have been injured on October 16, 2014 while performing his fitness-ready test. Appellant began
experiencing pain in his neck and arm after doing pull-ups, push-ups, and a run. The next day,
he had radiating pain in the left upper extremity. Appellant went to his physician, who ordered
an x-ray and an MRI scan, and diagnosed him with C7 cervical radiculopathy and a cervical disc
protrusion. Dr. Tantuwaya recommended anterior and posterior cervical decompression and
fusion at the C5-6 and C6-7 level with an anterior C5-6 and C6-7 cervical decompression and
interbody fusion followed by C6-7 left-sided cervical facetectomy/foramenotomy with a C6 to
T1 fusion. He opined that “based on the information currently available to me this injury did
arise out of and during the course of his employment; therefore, this injury is an industrial injury,
and is compensable.”
In a December 16, 2014 report, Dr. Tantuwaya noted appellant’s continued complaints of
left arm and neck pain, which included increased left-sided neck stiffness and more numbness in
the left arm, with less pain. He suggested that this was likely indicative of further nerve root
damage. Dr. Tantuwaya recommended surgical intervention and that appellant continue
modified duty. He also opined that the injury arose out of and during the course of appellant’s
employment.
By letter dated January 5, 2015, OWCP advised appellant of the deficiencies in his claim
and requested additional factual and medical evidence, including a detailed narrative report from
his physician, which included a history of the injury and a medical explanation with objective
evidence of how the reported work incident caused or aggravated the claimed conditions.
Appellant was afforded 30 days to submit such evidence.
In January 27, 2015 progress and attending physician’s reports, Dr. Tantuwaya continued
to diagnose cervical disc displacement and cervical spinal stenosis attributable to the work
injury.
By decision dated February 19, 2015, OWCP denied the claim as appellant had not
established fact of injury. It found that the evidence of record was insufficient to establish that
the event(s) occurred as alleged. OWCP found that appellant had not clarified whether the injury
was traumatic or occupational, and had not described how the injury occurred. It also noted that
there was no medical evidence in file which contained a diagnosis that could be connected to a
work event.
On March 5, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative which was held on October 7, 2015. Appellant testified that, as

3

part of his quarterly fitness assessment, he had to do pull-ups, push-ups, sit-ups, and a mile and a
half run. On October 16, 2014 he was on his second pull-up when he felt something in his arm.
Appellant thought he had strained a muscle. The pain got progressively worse and he went to his
physician on October 22, 2014. Appellant also testified as to his March 2005 injury to his neck
and back and the tingling he experienced in his left upper extremity in the summer 2014. He
indicated that he had a bone spur that was pushing on the nerve that exited the spinal canal and
that he felt that performing pull-ups on October 16, 2014 had aggravated this. Appellant
indicated that he underwent spinal surgery on May 29, 2015 and returned to full duty on
August 19, 2015, but still had numbness in his thumb, index finger, and middle finger.
The hearing representative advised appellant that the factual description he provided of
the October 16, 2014 injury was sufficient to support that it had occurred as alleged and the
medical evidence on file provided a diagnosis for his claimed condition. Appellant was also
advised that the medical evidence remained insufficient to establish the claim and it was
imperative that his physician address his condition and explain how this was caused or
aggravated by the work injury. If he had preexisting spinal stenosis and/or a bone spur, his
physician would need to address whether the claimed work injury aggravated or accelerated
either of these conditions. Appellant was requested to submit a copy of the May 29, 2015
operative report and EMG study that had been performed and treatment notes relative to the care
he received in the summer 2014. He was afforded 30 days to submit additional evidence.
Duplicative evidence was received along with an October 22, 2014 cervical x-ray, which
revealed bilateral neural foraminal encroachment and mild degenerative disc disease of C5-6.
By decision dated November 23, 2015, OWCP modified the prior decision to reflect that
fact of injury was established, but it denied the claim on the basis that causal relationship was not
established.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that he actually

5

Joe D. Cameron, 41 ECAB 153 (1989).

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

4

experienced the employment incident that is alleged to have occurred.7 An employee has not
met his burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.8 Second,
the employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.9
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.10 Neither the fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.11
ANALYSIS
OWCP accepted that the October 16, 2014 work incident occurred as alleged and that a
medical diagnosis had been provided. It denied the claim, however, as the medical evidence
failed to establish a causal relationship between the October 16, 2014 incident and the claimed
cervical and left upper extremity conditions. The Board finds that appellant has not established
an injury on October 16, 2014 causally related to the accepted employment incident.
Appellant submitted several reports from Dr. Tantuwaya in which he diagnosed C7
cervical radiculopathy and a cervical disc protrusion and cervical spinal stenosis. Dr. Tantuwaya
noted that appellant developed neck and arm pain following pull-ups on October 16, 2014. He
also reported that in 2005, appellant had been treated for a neck condition which had resolved,
but that appellant had been experiencing numbness in his left hand and forearm during the
summer of 2014. Dr. Tantuwaya recommended that appellant undergo anterior and posterior
cervical decompression and fusion at several levels of the cervical spine along with a C6 to T1
fusion. In his reports, he checked a box marked “yes” that the above-diagnosed conditions were
caused or aggravated by employment. However, the Board has held that a checkmark, without
supporting rationale, is of limited probative value, and insufficient to establish the claim.12
Dr. Tantuwaya failed to provide a rationale medical opinion in any of his reports as to how the
7

Gary J. Watling, 52 ECAB 278 (2001).

8

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

9

Deborah L. Beatty, 54 ECAB 340 (2003).

10

Solomon Polen, 51 ECAB 341 (2000).

11

Dennis M. Mascarenas, 49 ECAB 215 (1997).

12

See D.S., Docket No. 15-1930 (issued January 30, 2016).

5

reported work incident caused or aggravated a medical condition. The Board has held that
medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.13 A medical opinion is
especially needed in the case as the record reflects that appellant had a prior history of neck
injuries and possibly preexisting conditions of spinal stenosis and/or bone spur.14 Accordingly,
Dr. Tantuwaya’s reports are of limited probative value.
The diagnostic testing of record is of diminished probative value and is insufficient to
establish appellant’s claim as none of the physicians provided an opinion on the cause of
appellant’s diagnosed conditions.15
Causal relationship is a medical question that must be established by probative medical
opinion from a physician.16 In this case, the Board finds that none of the medical evidence
appellant submitted constitutes rationalized medical evidence, based upon a specific and accurate
history of employment conditions, which are alleged to have caused or exacerbated his medical
condition.17 Accordingly, the Board finds that, while it is found that appellant has established
fact of incident he has not established a causal relationship between the work incident and his
diagnosed conditions.
On appeal, counsel contends that a physician need not use magic words regarding
causation when the meaning is clear. However, as discussed above, appellant has not established
a causal relationship between the October 16, 2014 work incident and his diagnosed conditions
as none of the medical evidence he submitted constituted rationalized medical evidence, based
upon a specific and accurate history of employment conditions, which substantiate that the
employment incident caused or exacerbated his medical condition.
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 did not meet his burden of proof to establish an injury on
October 16, 2014 causally related to the accepted employment incident.

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
14

See B.T., Docket No. 13-138 (issued March 20, 2013).

15

C.B., supra note 13; S.E., Docket No. 08-2214 (issued May 6, 2009).

16

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

17

Patricia J. Bolleter, 40 ECAB 373 (1988).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 23, 2015 is affirmed.
Issued: August 9, 2016
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-678
Issued: October 1, 2012

Case Submitted on the Record

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

JURISDICTION
On February 6, 2012 appellant, filed a timely appeal of a December 15, 2011 Office of
Workers’ Compensation Programs’ (OWCP) merit decision reducing her monetary
compensation based on a constructed loss of wage-earning capacity determination. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)(1) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation benefits based
on her capacity to earn wages in the constructed position of an information clerk.
FACTUAL HISTORY
On February 23, 2000 appellant, then a 51-year-old distribution clerk, filed a traumatic
injury claim alleging that she was struck by a moving vehicle. OWCP accepted her claim for
1

5 U.S.C. § 8101 et seq.

lumbar strain. Appellant returned to work four hours a day on January 8, 2001. She returned to
a full-time light-duty position on August 4, 2001. Appellant continued to work eight hours a day
in a limited-duty position through June 6, 2008. On June 7, 2008 she accepted a position as a
modified mail processing clerk surface visibility scanning for eight hours a day. The position
required lifting, carrying, pushing and pulling up to 10 pounds intermittently. Appellant could
stand, walk, bend, stoop, twist or drive a motor vehicle for one hour a day and perform simple
grasping and fine manipulation for eight hours a day. She was not required to reach above the
shoulder.
Appellant filed a notice of recurrence of disability on December 2, 2009 alleging that the
employing establishment withdrew her light-duty position on November 30, 2009 and asked her
to leave the building. Her attending physician, Dr. Roger W. Shortz, a neurologist, diagnosed
cervical disc disease, lumbar disc disease and lumbar herniated disc. He noted that appellant was
receiving epidural injections. Dr. Shortz provided work restrictions of no lifting over 10 pounds,
no prolonged sitting, standing or walking and no repetitive bending or twisting.
OWCP referred appellant for vocational rehabilitation counseling on March 18, 2010.
Appellant met with the vocational rehabilitation counselor on March 30, 2010. She participated
in vocational testing on April 9, 2010. The testing results recommended the positions of motel
clerk, self-storage facility clerk, information clerk and selective receptionist positions. In a
report dated April 14, 2010, the vocational rehabilitation counselor found that the positions of
receptionist or information clerk were most appropriate for appellant and that she was engaging
in training. The opening for information clerk were consistently found with a salary of $11.00 to
$12.00 per hour. The vocational rehabilitation counselor determined that appellant required
computer training. On June 3, 2010 OWCP approved the plan for appellant to attempt to return
to work as a receptionist or information clerk. Appellant completed her course work on
December 20, 2010.
Appellant participated in placement activities for 90 days plus a 30-day extension but did
not obtain a job offer. The vocational rehabilitation counselor determined that the information
clerk and receptionist positions. The positions were performed in sufficient numbers to make
them reasonably available to appellant within her commuting area. The physical demands of the
position of information clerk was sedentary, requiring occasional lifting up to 10 pounds with no
climbing, stooping, kneeling, crouching or crawling and occasional reaching and handling. The
position also required talking and hearing. The duties of the position of information clerk
included answering inquiries from persons entering the business establishment, providing
information regarding the activities conducted and the location of various departments. The
position required three to six months of vocational preparations. The vocational rehabilitation
counselor found that appellant met this requirement through her course work in keyboarding and
basic computers.
By decision dated July 5, 2011, OWCP proposed to reduce appellant’s compensation
benefits based on her capacity to earn wages as an information clerk at the rate of $400.00 per
week. Appellant had successfully completed training and, based on her experience, education,
medical restrictions and a labor market survey she was employable as an information clerk under
the physical restrictions recommended by Dr. Shortz. OWCP found that appellant was capable
of earning $10.00 per hour and that she had a wage-earning capacity of $400.00. It noted that

2

the position of information clerk was sedentary and required exerting up to 10 pounds of force
occasionally. OWCP allowed appellant 30 days to respond if she disagreed with the proposal.
By decision dated August 5, 2011, OWCP finalized the reduction of appellant’s monetary
compensation effective August 28, 2011.
In a letter dated August 3, 2011 and received by OWCP on August 8, 2011, appellant
stated that she did disagree with the proposed reduction of compensation. She stated that she
was totally disabled due to her accepted back condition. Appellant noted that she continued to
receive epidural injections which reduced her back pain, spasms and numbness. She stated that
she had sought employment but was unable to get work.
Appellant requested a review of the written record by an OWCP hearing representative
on August 24, 2011. In a duty status report from Dr. Shortz dated August 22, 2011, he noted that
appellant could lift and carry up to 10 pounds and could stand and walk for one hour a day.
Appellant was totally restricted from climbing and kneeling and could bend, stoop, twist, pull
and push for one hour a day. She could perform simple grasping and fine manipulation for eight
hours a day and could drive a motor vehicle or operate machinery for one hour a day each.
By decision dated December 15, 2011, an OWCP hearing representative affirmed the
August 5, 2011 wage-earning capacity determination.
LEGAL PRECEDENT
Section 8115 of FECA2 provides that wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
the employee has no actual earnings, her wage-earning capacity is determined with due regard to
the nature of her injury, the degree of physical impairment, her usual employment, her age, her
qualifications for other employment, the availability of suitable employment and other factors or
circumstances which may affect her wage-earning capacity in her disabled condition.3
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized by
OWCP for selection of a position, listed in the Department of Labor, Dictionary of Occupational
Titles or otherwise available in the open market, that fits that employee’s capabilities with regard to
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the open 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. Shadrick4 will result in the percentage of the employee’s loss of

2

5 U.S.C. § 8115.

3

N.J., 59 ECAB 171 (2007).

4

5 ECAB 376 (1953).

3

wage-earning capacity. The basic rage of compensation paid under FECA is 66 2/3 percent of the
injured employee’s monthly pay.5
ANALYSIS
OWCP accepted appellant’s claim for lumbar strain. Appellant returned to light-duty
work eight hours a day and continued to work until November 30, 2009 when the employing
establishment withdrew her light-duty assignment. OWCP referred her for vocational counseling
and she completed courses in the computer skills. The vocational rehabilitation counselor
identified the position of information clerk as within appellant’s medical restrictions and
vocational skills. She found the position reasonably available within appellant’s commuting
area. The Board finds that the selected position of information clerk was medically and
vocationally suitable.
Appellant’s vocational rehabilitation counselor noted that appellant had completed the
necessary course work to enable her to meet the specific vocational preparation period. She
determined that the position was performed in sufficient numbers in appellant’s commuting area
to make the position reasonably available. The Board finds that OWCP properly relied on the
opinion of the vocational rehabilitation counselor that appellant was vocationally capable of
performing the information clerk position.
Dr. Shortz, appellant’s attending physician, provided consistent work restrictions stating
that appellant could lift up to 10 pounds and restricting walking, standing, bending, stooping,
twisting, pulling and pushing to one hour each day. Appellant could perform simple grasping
and fine manipulation for eight hours a day and could drive a motor vehicle or operate machinery
for one hour a day each. The position of information clerk is designated as sedentary with
occasional lifting up to 10 pounds. It does not require climbing, stooping or kneeling. The
Board finds that the medical evidence establishes that the physical demands of the position of
information clerk were within appellant’s work restrictions as established by her physician.
OWCP considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications in
determining that the position of information clerk represented her wage-earning capacity. The
weight of the evidence in the record establishes that appellant had the requisite physical ability,
skill and experience to perform the position of information clerk and that such a position was
reasonably available within the general labor market of his commuting area. The Board finds,
therefore, that OWCP properly determined that the position of information clerk reflected
appellant’s loss of wage-earning capacity and used the Shadrick formula to properly reduce her
compensation effective August 28, 2011.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.

5

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

4

CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation effective
August 28, 2011 based on its determination that the constructed position of information clerk
represented her wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 1, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 14-1207
Issued: November 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 28, 2014 appellant, through counsel, filed a timely appeal from the November 1,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to modify OWCP’s December 28,
1998 loss of wage-earning capacity determination for the period January 18, 2011 to
April 9, 2012.
FACTUAL HISTORY
On September 22, 1993 appellant, then a 42-year-old letter carrier, filed a Form CA-2
alleging an occupational disease in the performance of duty. He underwent left hip replacement
1

5 U.S.C. §§ 8101-8193.

on November 16, 1993 and right hip replacement on April 23, 1996. OWCP accepted
appellant’s claim for aggravation of bilateral hip osteoarthritis.2
OWCP referred appellant for a second opinion examination to Dr. Bharat V. Mehta, a
Board-certified orthopedic surgeon. In a report dated October 28, 1998, Dr. Mehta examined
appellant and observed well-healed bilateral thigh incisions and diminished bilateral hip flexion,
internal rotation and external rotation. X-rays exhibited excellent prosthetic positioning without
complications and a neurological evaluation was unremarkable. Based on the physical findings
and a review of the medical file, Dr. Mehta opined that appellant could not stand for a prolonged
period, lift items weighing above five pounds, bend, squat, kneel or operate a vehicle that had
limited legroom or required greater than 90 degrees of hip flexion in a seated position. He
specified in an October 28, 1998 work capacity evaluation form that appellant could walk, stand
and drive for two hours each and lift items weighing up to five pounds, but must refrain from
twisting, pushing, pulling, squatting, kneeling and climbing. Dr. Mehta recommended sedentary
duty.
On October 13, 1998 the employing establishment offered appellant the full-time position
of rehabilitation clerk at a base salary of $37,831.00. Duties included: filing and retrieving
documents, typing and preparing reports, bookkeeping, photocopying, answering telephone calls,
using a laser scanner weighing less than a pound, assisting customers and occasionally sorting
mail while utilizing an adjustable rest bar. The job did not require squatting, stooping, bending
over, prolonged standing, repetitive stair-climbing or driving. Appellant accepted the offer and
returned to work on October 24, 1998. In a November 23, 1998 report, Dr. Mehta confirmed that
the position of rehabilitation clerk was suitable in view of appellant’s employment injury.
By decision dated December 28, 1998, OWCP found that appellant’s actual earnings as a
rehabilitation clerk fairly and reasonably represented his wage-earning capacity. Because
appellant’s current salary met or exceeded the salary of the job he held at the time of injury,3 it
determined that he was not entitled to wage-loss compensation.
The employing establishment informed appellant in a December 29, 2010 letter that work
was no longer available within his medical restrictions pursuant to the National Reassessment
Process (NRP). Appellant was placed on administrative leave through January 15, 2011 and
leave without pay thereafter. He subsequently filed a claim for disability compensation on
February 18, 2011.4
OWCP advised appellant in a March 8, 2011 letter that a formal loss of wage-earning
capacity determination decision was previously issued and additional evidence was needed to
establish modification was warranted. It gave him 30 days to submit evidence to establish that
the original loss of wage-earning capacity determination decision rating was erroneous or that he
sustained a change in the nature and extent of his injury-related condition. Appellant furnished
2

By decision dated August 2, 2001, OWCP granted a schedule award for 37 percent permanent impairment of the
left lower extremity and 37 percent permanent impairment of the right lower extremity.
3

The case record indicates that appellant earned $35,271.00 annually as a letter carrier at the time of injury.

4

The case record contains multiple compensation claims.

2

May 11, 2010 and April 19, 2011 duty status reports from Dr. Henry A. Finn, a Board-certified
orthopedic surgeon, who placed him on permanent partial disability and recommended sedentary
work.
By decision dated April 26, 2011, OWCP denied appellant’s claim for compensation
beginning January 18, 2011. It found the evidence insufficient to modify the December 18, 1998
loss of wage-earning capacity determination.
An April 19, 2011 x-ray obtained by Dr. Stephanie R. Rosania, a Board-certified
diagnostic radiologist, showed bilateral total hip arthroplasties in anatomic alignment and a
preexisting left femoral diaphyseal fracture.
Appellant requested an oral hearing, which was held on October 11, 2011. He testified
that he experienced left hip pain and deterioration, but did not contest the validity of the 1998
loss of wage-earning capacity determination.
On December 28, 2011 an OWCP hearing representative affirmed denial of modification.
The Branch of Hearings and Review amended and reissued this decision on April 17, 2012.5 It
modified the December 28, 1998 loss of wage-earning capacity determination to find appellant
established a material worsening of his work-related left hip condition based on the reports of
Dr. Finn. OWCP reinstated compensation effective April 10, 2012.
In a December 11, 2012 decision,6 the Board set aside OWCP’s April 17, 2012 decision
and remanded the case to OWCP for further development. It found that OWCP failed to address
all of the guidelines in FECA Bulletin No. 09-05 with respect to modification of loss wageearning determinations in NRP cases.7 The Board directed that, after compliance with FECA
Bulletin No. 09-05, OWCP issue a de novo decision on appellant’s entitlement to wage-loss
compensation.
On remand OWCP sent the employing establishment a January 11, 2013 letter which
requested information regarding whether the rehabilitation clerk position appellant performed
was a bone fide position under FECA Bulletin No. 09-05. In a letter dated February 5, 2013,
Patricia Stamps-Stephens, an official from the employing establishment, stated:
“The position on which the [loss of wage-earning capacity determination] was
based December 28, 1998 was a bona fide position at that time. The work
provided and identified was adequate based on the information in the injury file.
The attached job offers and descriptions indicate that the duties identified in 1998
were performed until the work was withdrawn in December 2010.”

5

The cover sheet of the December 28, 2011 decision improperly stated that the case was remanded. The
April 17, 2010 decision corrected this error.
6

Docket No. 12-1138 (issued December 11, 2012).

7

See infra notes 15 and 16.

3

In an April 5, 2013 decision, OWCP denied appellant’s request for modification of
OWCP’s December 28, 1998 loss of wage-earning capacity determination for the period
January 18, 2011 to April 9, 2012. It found that he did not establish that the December 28, 1998
loss of wage-earning capacity determination was erroneous or that medical evidence showed that
he could not perform the positon due to a worsening in his work-related condition for the period
January 18, 2011 to April 9, 2012.
Appellant requested a hearing before an OWCP hearing representative. At the
August 13, 2013 hearing, counsel argued that the rehabilitation clerk position was makeshift
work because it was not a classified position and was not permanent, given the fact that it was
eventually eliminated.
By decision dated November 1, 2013, the hearing representative affirmed the April 5,
2013 decision. She found that appellant did not establish that the December 28, 1998
determination was erroneous or that a worsening in his work-related condition prevented him
from working as a rehabilitation clerk from January 18, 2011 to April 9, 2012.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.8 Its burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.9
Under 5 U.S.C. § 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. Generally, wages actually earned are the best measure of wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.10 A determination
regarding whether actual earnings fairly and reasonably represents one’s wage-earning capacity
should be made only after an employee has worked in a given position for more than 60 days.11
OWCP’s procedure manual provides guidelines for determining wage-earning capacity
based on actual earnings. A job that is part time (when the claimant was a full-time employee at
the time of injury), seasonal in an area where year-round employment is available, or temporary
(when the date-of-injury position was a permanent position) is generally not appropriate for a
wage-earning capacity determination.12
8

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

9

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

E.W., Docket No. 14-584 (issued July 29, 2014); Dennis E. Maddy, 47 ECAB 259, 262 (1995).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7c (July 1997); id. at Chapter 2.815.5 (June 2013).
12

Id. at Chapter 2.814.7a (December 1993); id. at Chapter 2.815.5(c)(3) (June 2013).

4

It is well established that a position that is considered an odd-lot or makeshift position
designed for a claimant’s particular needs is not appropriate for a wage-earning capacity
determination.13 The Board has discussed several factors that may support a finding that the
offered position was makeshift in nature. These factors include: (1) the position did not have an
official title or formal position description; (2) there were strict limitations, such as five-pound
lifting and no casing of mail, which indicated that the claimant would not be able to secure a
position in the community at large with such limited duties; (3) the claimant did not perform any
meaningful tasks in the position; and (4) the job appeared to be temporary in nature.14
When a loss of wage-earning capacity decision has been issued, FECA Bulletin
No. 09-05 requires OWCP to develop the evidence to determine whether a modification of the
decision is appropriate.15 To this end, FECA Bulletin No. 09-05 asks OWCP to confirm that the
file contains documentary evidence supporting that the position was an actual bona fide position.
It requires OWCP to review whether a current medical report supports work-related disability
and establishes that the current need for limited duty or medical treatment is a result of injuryrelated residuals, and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.16
ANALYSIS
OWCP accepted appellant’s claim for aggravation of bilateral hip osteoarthritis and he
underwent surgery for an authorized left hip replacement on November 16, 1993 and right hip
replacement on April 23, 1996. On October 24, 1998 appellant began work in the full-time
position of rehabilitation clerk at a base salary of $37,831.00. His duties included: filing and
retrieving documents, typing and preparing reports, bookkeeping, photocopying, answering
telephone calls, using a laser scanner weighing less than a pound, assisting customers and
occasionally sorting mail while utilizing an adjustable rest bar. The job did not require squatting,
stooping, bending over, prolonged standing, repetitive stair-climbing or driving. The work
appellant performed was reviewed and approved by his attending physician, Dr. Mehta on
November 23, 1998.
By decision dated December 28, 1998, OWCP found that appellant’s actual earnings in
the position of rehabilitation clerk fairly and reasonably represented his wage-earning capacity.
Because appellant’s current salary met or exceeded the salary of the job he held at the time of
injury, OWCP determined that he was not entitled to wage-loss compensation.
Effective February 18, 2011, appellant’s position as a rehabilitation clerk ceased to be
available to him due to NRP. He requested modification of OWCP’s December 28, 1998 loss of
wage-earning capacity determination, but his request was denied by OWCP for the period
13

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

14

Id. See also V.H., Docket No. 13-2076 (issued March 5, 2014).

15

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

16

Id. at §§ I.A.1-2.

5

January 18, 2011 to April 9, 2012.17 OWCP reinstated appellant on the periodic rolls as of
April 10, 2012 finding that Dr. Finn’s reports established a material change of his accepted left
hip condition.
Appellant alleged that OWCP’s original wage-earning capacity determination was, in
fact, erroneous. He argued that the position upon which the rating was based, i.e., rehabilitation
clerk, was makeshift or odd-lot in nature and therefore could not be used to support the wageearning capacity determination.
In the case of A.J.,18 the Board discussed several factors that may support a finding that
an offered position was makeshift or odd-lot in nature. These factors include: (1) the position
did not have an official title or formal position description; (2) there were strict limitations, such
as five-pound lifting and no casing of mail, which indicated that the claimant would not be able
to secure a position in the community at large with such limited duties; (3) the claimant did not
perform any meaningful tasks in the position; and (4) the job appeared to be temporary in
nature.19
The Board finds that the facts of the present case are distinguishable from those of A.J.
The rehabilitation clerk position which served as the basis for OWCP’s wage-earning capacity
determination does not constitute a makeshift or odd-lot position. Although the position that
appellant began performing on October 24, 1998 was not classified, it did have the title of
rehabilitation clerk. The position description for the job listed specific work duties and physical
requirements. The limitations of the position were not unduly strict and it required the
performance of meaningful tasks such as filing and retrieving documents, typing and preparing
reports, bookkeeping, photocopying, answering telephone calls, using a laser scanner weighing
less than a pound, assisting customers and occasionally sorting mail while utilizing an adjustable
rest bar. The position was not temporary in nature as appellant performed it for more than 12
years. There was no evidence that the position was created specifically for appellant. Further, it
was approved by Dr. Mehta, his attending physician.
Counsel argued at the hearing that the position was not permanent because it was
eventually taken away. The Board has held that the fact that the employing establishment may
eventually eliminate positions, does not, by itself, establish that a given position constituted
makeshift or odd-lot work.20 In a letter dated February 5, 2013, an official from the employing
establishment stated, “The position on which the [loss of wage-earning capacity determination]
was based December 28, 1998 was a bona fide position at that time.” The weight of the evidence
of record establishes that the rehabilitation position was not makeshift or odd-lot in nature
17

The Board notes that effective April 10, 2012 OWCP modified its December 28, 1998 loss of wage-earning
capacity determination to reflect appellant’s worsening work-related left hip condition based on reports of Dr. Finn,
an attending Board-certified orthopedic surgeon, including a report dated April 10, 2012. It reinstated compensation
effective April 10, 2012.
18

See supra note 13.

19

See also V.H., Docket No. 13-2076 (issued March 5, 2014).

20

C.S., Docket No. 12-1221 (issued February 11, 2013).

6

because it had a detailed job description, was performed within recommended physical
restrictions and involved meaningful tasks.21
Actual earnings are generally the best measure of wage-earning capacity and OWCP
properly used appellant’s actual wages in the rehabilitation clerk position to determine his wageearning capacity. There was no substantial evidence that OWCP’s December 28, 1998 wageearning capacity determination was erroneous.
The Board finds that OWCP complied with the Board’s December 11, 2012 decision by
addressing, upon remand, the guidelines of FECA Bulletin No. 09-05. The Board received
confirmation from the employing establishment that the position on which the loss of wageearning capacity determination was based on was a bona fide position at the time of the rating.
OWCP also reviewed its files to determine whether the medical evidence showed work-related
disability from the rated position.
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 did not meet his burden of proof to modify OWCP’s
December 28, 1998 loss of wage-earning capacity determination for the period January 18, 2011
to April 9, 2012.

21

See K.A., Docket No. 13-1652 (issued January 6, 2014) (position serving as basis for wage-earning capacity
determination found to not be makeshift or odd-lot because it had a detailed job description, was performed without
overly strict physical restrictions and involved meaningful tasks).

7

ORDER
IT IS HEREBY ORDERED THAT the November 1, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1306
Issued: January 7, 2009

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 March 26, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 19, 2008 schedule award decision. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a three percent impairment of the left lower extremity for which he received a schedule award.
FACTUAL HISTORY
On January 19, 2002 appellant, then a 42-year-old tractor-trailer operator, sustained a
lumbar sprain/strain when his truck jackknifed on a wet, snowy overpass. He missed intermittent
periods of work. The claim was accepted for thoracic/lumbosacral neuritis. On July 23, 2004
appellant began working eight hours a day with restrictions and retired on September 7, 2006.
On November 15, 2007 appellant filed a schedule award claim and submitted reports
dated August 28 and October 2, 2007 from Dr. George L. Rodriguez, a Board-certified

physiatrist, who noted that an April 23, 2002 electromyography (EMG) study of the lower
extremities demonstrated left L4-5 radiculopathy. Dr. Rodriguez advised that maximum medical
improvement was reached on March 8, 2002, provided physical examination findings and
diagnosed lumbosacral sprain/strain and neuritis, degenerative disc disease of the lumbar spine,
lumbosacral radiculopathy and herniated discs at L1-2, L2-3, L3-4 and L4-5. He advised that in
accordance with the fifth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (hereinafter A.M.A., Guides),1 appellant had an 18 percent left lower
extremity impairment. Dr. Rodriguez identified the sciatic nerve under Figure 17-8 of the
A.M.A., Guides and found that under Table 17-37 appellant had a 9 percent sensory impairment,
7 percent impairment for dysesthesia and a 42 percent motor impairment. He then advised that
under Table 16-10, appellant had a 3 percent sensory deficit and a 3 percent deficit for
dysesthesia and that, under Table 16-11, a 12 percent motor deficit, for a total 18 percent left
lower extremity impairment.
In a January 5, 2008 report, Dr. Arnold T. Berman, an Office medical adviser and Boardcertified orthopedic surgeon, reviewed Dr. Rodriguez’s report and disagreed with his conclusion
that appellant had an 18 percent left lower extremity impairment. Dr. Berman noted that
Dr. Rodriguez inappropriately made calculations for sciatic nerve involvement when, in this
case, the sciatic nerve was not involved but rather the L4 and L5 nerve roots, as demonstrated on
EMG testing.2 Dr. Berman advised that maximum medical improvement was reached on
October 2, 2007 and that appellant had no left lower extremity motor deficit. Utilizing the
A.M.A., Guides, he found that, under Table 15-18, L4 and L5 yielded maximum sensory losses
of 5 percent each, and identified a Grade 4 sensory loss under Table 15-15, or 25 percent, which
he then multiplied by 5 percent to equal a 1.25 percent L4 impairment and a 1.25 L5 impairment,
to total 2.5 percent which he rounded up to yield a 3 percent impairment.
On January 16, 2008 the Office referred appellant to Dr. Kevin F. Hanley, Boardcertified in orthopedic surgery, for a second opinion evaluation. Dr. Hanley was asked to
provide an impairment rating of appellant’s left lower extremity in accordance with the A.M.A.,
Guides.3 In a February 26, 2008 report, he noted the history of injury and appellant’s complaints
of intermittent numbness and tingling that radiated to the left lower extremity. Dr. Hanley
diagnosed annular tear, lumbosacral spine L4-5 with L5 radiculopathy, left and advised that
appellant reached maximum medical improvement on August 25, 2006. He reported that
appellant had no motor deficit and, under Table 15-18, identified the L5 root as the nerve
impaired with a maximum sensory loss of 5 percent. Dr. Hanley then found that appellant had a
mid-range Grade 3 deficit under Table 15-15, or 45 percent which, when multiplied by the 5
percent loss found in Table 15-18, yielded a 2.25 percent impairment. He agreed with
Dr. Berman that appellant had a three percent left lower extremity impairment. Although,
Dr. Rodriguez found 18 percent impairment, he based his conclusion on the fact that appellant
1

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

An April 23, 2002 EMG was reported as consistent with early L4-5 radiculopathy. A February 16, 2005 EMG
was normal.
3

Dr. Hanley noted that he had previously evaluated appellant on August 25, 2006 and at that time reported that a
magnetic resonance imaging (MRI) scan study demonstrated disc bulging and an L4-5 annular tear.

2

had multilevel radiculopathy which was clearly not the case and not what one would expect as a
consequence of a single level annular tear. By report dated March 15, 2008, Dr. Berman advised
that the date of maximum medical improvement was October 2, 2007 and noted his agreement
with Dr. Hanley’s conclusion that appellant had a three percent left lower extremity impairment.
On March 19, 2008 appellant was granted a schedule award for a three percent impairment of the
left lower extremity, for 8.64 weeks of compensation, to run from October 2 to
December 1, 2007.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act4 and section 10.404 of
the implementing federal regulations,5 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., Guides6 has been adopted by the Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.7
Although, the A.M.A., Guides include guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.8 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.9 Impairment should not be considered permanent until the
clinical findings indicate that the medical condition is static and well stabilized.10
Section 15.12 of the fifth edition of the A.M.A., Guides describes the method to be used
for evaluation of impairment due to sensory and motor loss of the extremities as follows. The
nerves involved are to be first identified. Then, under Tables 15-15 and 15-16, the extent of any
sensory and/or motor loss due to nerve impairment is to be determined, to be followed by
determination of maximum impairment due to nerve dysfunction in Table 15-17 for the upper
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

A.M.A., Guides, supra note 1.

7

See Joseph Lawrence, Jr., supra note 1; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
8

Pamela J. Darling, 49 ECAB 286 (1998).

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

10

Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

3

extremity and Table 15-18 for the lower extremity. The severity of the sensory or motor deficit
is to be multiplied by the maximum value of the relevant nerve.11
ANALYSIS
The Board finds that the weight of the medical evidence rests with the opinion of
Dr. Hanley, who provided a second opinion evaluation for the Office and concluded that
appellant had a three percent impairment of the left lower extremity. While Dr. Rodriguez found
that appellant had an 18 percent left lower extremity impairment, he identified the sciatic nerve
as causing the impairment and there are no objective findings such as EMG or MRI scan testing
to support this conclusion.12 In his February 26, 2008 report, Dr. Hanley provided examination
findings and reported that appellant had no motor deficit of the left lower extremity. He found
that, under Table 15-18 of the A.M.A., Guides, appellant had a 5 percent L5 sensory impairment.
Dr. Hanley then found a 45 percent or Grade 3 sensory loss under Table 15-15 and properly
multiplied the two to yield a 2.25 percent left lower extremity impairment, which he rounded up
to 3 percent.13 Dr. Berman, the Office medical adviser, agreed with Dr. Hanley’s findings and
advised that maximum medical improvement was reached on October 2, 2007.
CONCLUSION
The Board finds that appellant did not establish that he is entitled to a schedule award for
his left lower extremity greater than the three percent awarded.

11

A.M.A., Guides, supra note 1 at 423.

12

Supra notes 2 and 3.

13

A.M.A., Guides, supra note 1 at 424.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 19, 2008 be affirmed.

Issued: January 7, 2009
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Columbus, OH, Employer
)
___________________________________________ )
H.L., Appellant

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

Docket No. 15-1733
Issued: November 13, 2015

Case Submitted on the Record

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

JURISDICTION
On June 8, 2015 appellant filed a timely appeal of an April 1, 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 over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained
an occupational disease in the performance of duty causally related to factors of his federal
employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 6, 2015 appellant, then a 46-year-old mail clerk and lobby assistant, filed an
occupational disease claim (Form CA-2) alleging that he sustained stress, hip, back, and right
knee pain in the performance of duty. He stated that he first became aware of his condition on
January 6, 2015. Appellant advised that it was due to the lack of accommodations for relief;
between 25 to 30 minutes of walking and standing on solid concrete flooring caused excruciating
sharp pain that began shooting through his right hip. He alleged that it also caused a flare up in
his back, buttocks and right knee with severe pain shooting down both legs (more on the right).
Appellant indicated that his right foot became numb and affected his mood, thought processes,
and ability to focus and remember things. He stopped work on January 6, 2015.2
In a June 6, 2015 statement, appellant indicated that he was “stressed the hell out.” He
indicated that he was experiencing excruciating pain in his right hip due to the excessive
standing and walking on concrete flooring due to the lack of accommodations for relief.
Appellant indicated that his other documented injuries continued to be aggravated as well and it
was causing him emotional distress.
In a January 13, 2015 statement, Michael B. Alter, a health and resource management
specialist from the employing establishment, controverted the claim. He provided a copy of the
modified job offer of a lobby assistant, which was given to appellant on December 22, 2014 with
a start date of December 27, 2014. Mr. Alter noted that appellant did not start until three days
after the reporting date, December 30, 2014. He indicated that when appellant reported he
requested a “special chair.” Mr. Alter confirmed that the chair was provided to appellant by his
supervisor and he was able to sit and stand as needed while performing the duties of a lobby
assistant. He noted that it was the employing establishment’s belief that appellant did not want
to work as he did not report until three days after his anticipated start date. Furthermore,
Mr. Alter confirmed that the employing establishment accommodated appellant’s restrictions, yet
“he claimed that was not enough.” A copy of the modified job offer accompanied his letter. A
January 14, 2015 letter from Mr. Alter to appellant was also provided. In that letter, Mr. Alter
informed appellant that he would be assigned to assist him with his claim and the return to work
process.
January 6, 2015 emergency room records from Dr. Charles B. May, a Board-certified
orthopedic surgeon, revealed that appellant had degenerative arthritis and osteoarthritis. In a
January 13, 2015 attending physician’s report (Form CA-20), Dr. May noted a history of a
lumbar injury incurred on October 15, 2011 while appellant was helping hold pallets of mail. He
also reported that appellant had a 1992 lumbar injury in the military. Dr. May diagnosed lumbar
facet arthropathy at L5-S1 and disc bulge. He checked the box “yes” in response to whether he
believed the condition was caused or aggravated by an employment activity. Dr. May noted that
appellant was unable to perform the job as a lobby director as the restrictions were not being
followed. He concluded that appellant was totally disabled commencing November 16, 2012.
2

The record reflects that appellant also filed a traumatic injury claim (Form CA-1) for a right hip condition
sustained on January 6, 2015. Appellant has filed a separate appeal regarding this claim, Docket No. 15-1386,
which is proceeding to adjudication separately from the present matter.

2

Dr. May noted that he was able to resume light duty on December 27, 2011 and provided
restrictions to include weight limits of 15 pounds for continuous lifting and 10 to 20 pounds for
intermittent lifting.
By letter dated January 16, 2015, OWCP advised appellant that additional factual and
medical evidence was needed to establish his claim for an occupational disease. It also explained
that a physician’s opinion was crucial to appellant’s claim and afforded him 30 days within
which to submit the requested information.
In a January 16, 2015 statement, appellant indicated that, while he was at work on
January 6, 2015, he called his supervisor and informed him that he needed to go to the hospital.
He noted that his manager was unaware of which form he needed but provided him with a Form
CA-2 and told him to go on his own. Appellant indicated that he could not focus, his chest and
head felt tight and he had severe sharp pain shooting through his right hip; in addition to his
back, his knees and feet hurt from walking and standing on the concrete floors with nowhere to
go for relief. He noted that on that morning, he had a heated conversation with coworker 1 for
loudly and unprofessionally complaining to coworker 2 about him. Appellant noted that on
January 5, 2015 approximately 15 minutes before it was time for him to go home he was in the
lobby helping a customer when he heard coworker 1 in the back yelling to coworker 2 about him.
Appellant noted that he informed coworker 1 that he had limitations and that her behavior upset
him. He noted that he spoke to coworker 3 before he left, asking him to talk to coworker 1 about
her hostile tones. Appellant also noted that on or about January 2, 2015 he spoke with his
manager and asked him to talk to coworker 1 about her telling him what his responsibilities
were. He noted that he tried to explain his duties to her on December 30, 2014, after she rudely
interrupted a conversation with him and a customer.
Appellant indicated that on January 5, 2015, he informed his manager that he did not
have anywhere to sit and nothing to stand on, and he was hurting and his feet were going numb.
He indicated that he needed an ergonomic chair, mat, and desk to case mail due to excruciating
back, knee, and foot pain. However, when he arrived, appellant was informed that they only had
small chairs and nothing else. He noted that he accepted the lobby director position on
December 24, 2014, through a good faith settlement that his permanent restrictions and
accommodations would be honored. Appellant indicated that on his first day back to work,
December 30, 2014, he met with his manager and they had a dispute about the hours he was to
start working. He also indicated that they gave him a “school-age metal folding chair with a
pad” when he asked for an ergonomic chair and antifatigue mat. Appellant was told that they
would look into it but that was all they had. He advised that his restrictions were “Not preinjury
work,” but he was given work outside his restrictions. Appellant argued that he “was coerced
and mislead to working outside my restrictions and placed in a hostile work environment which
induced stress and injury.” He stated that he had not slept well since starting the job and the
employer refused to provide him with reasonable accommodations. Appellant argued that he
was placed in a work environment that caused continued stress and anxiety. He indicated that he
was out of work for two years due to the employing establishment’s failing to provide him with
reasonable accommodation and/or offering him a position that would decrease flare ups and
aggravation of injuries.

3

OWCP received a January 6, 2015 work release form from Dr. David Allen, an
osteopath, specializing in emergency medicine, in which he indicated that appellant could return
to work on January 7, 2015 and continue to work with the restrictions imposed by Dr. May. It
also received a form on degenerative arthritis, emergency department discharge instructions from
Dr. May, and radiology orders for an x-ray of the hip.
By decision dated April 1, 2015, OWCP denied appellant’s claim. It found that the
medical evidence of record did not contain a medical diagnosis and did not demonstrate that the
claimed medical condition was related to established work factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
to his or her regular or specially assigned duties or to a requirement imposed by the employment,
the disability comes within the coverage of FECA. On the other hand the disability is not
covered where it results from such factors as an employee’s fear of a reduction-in-force or his or
her frustration from not being permitted to work in a particular environment or to hold a
particular position.3
Appellant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition, for which he claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
description of the employment factors or conditions, which appellant believes caused or
adversely affected the condition or conditions, for which compensation is claimed.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP as part of its
adjudicatory function, must make findings of fact regarding, which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the

3

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).
4

Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

4

matter establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.7
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
Appellant has alleged several factors of employment which caused his alleged medical
conditions, including that he sustained stress from heated conversations with coworker 1, and
that she was “yelling” to coworker 2 about his work performance. He has also alleged an
interaction with his manager.9 Appellant further alleged that walking on hard floors aggravated
his physical condition. OWCP denied his claim because he did not submit medical evidence
containing a medical diagnosis, nor did he establish that a diagnosed medical condition is
causally related to the accepted employment factors.
The Board has held that, when working conditions are alleged as factors in causing a
condition or disability, OWCP as part of its adjudicatory function, must make findings of fact
regarding, which working conditions are deemed compensable factors of employment.10
Although, OWCP did not make specific findings of fact, with respect to the allegations of
“heated” conversations with coworker 1 “yelling” to coworker 2 about appellant’s work
performance and an interaction with his manager, the Board finds that these allegations are
generally accepted as there is no contradictory evidence and OWCP denied the claim based upon
insufficient medical evidence in support of his claim. There also is no dispute that appellant’s
job required him to walk on concrete floors.
However, the Board finds that the medical evidence of record is insufficient to establish
that a medical condition was caused or aggravated by these activities or any other specific factors
of appellant’s federal employment. The Board notes that January 6, 2015 emergency room
records from Dr. May revealed that appellant had degenerative arthritis and osteoarthritis.

7

Id.

8

Solomon Polen, 51 ECAB 341 (2000).

9

Although appellant argued that he was also stressed due to the employing establishment’s failure to provide him
with reasonable accommodations, the employing establishment documented that he was provided with a special
chair and allowed to sit and stand as needed.
10

See supra note 6.

5

However, Dr. May did not specifically address whether appellant’s work duties contributed to an
emotional condition and this report is, therefore, insufficient to establish the claim.11
In a January 13, 2015 attending physician’s report, Dr. May noted a history which
included that in October 2011 appellant injured his back while helping hold pallets of mail. He
also noted that appellant had a 1992 lumbar injury while serving in the military. Dr. May
diagnosed lumbar facet arthropathy at L5-S1 and disc bulge. He checked the box “yes” in
response to whether he believed the condition was caused or aggravated by an employment
activity. Dr. May found that appellant was unable to perform the job as a lobby director as his
medical restrictions were not being followed. The Board notes that this report does not support
appellant’s argument that he sustained a stressful condition in the performance of duty. It also is
insufficient to establish that a physical condition was caused or aggravated by his employment
duties as the Board has held that the checking of a box “yes” in a form report, without additional
explanation or rationale, is not sufficient to establish causal relationship.12
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.13
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.14 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
As there is no reasoned medical evidence explaining how appellant’s employment duties
caused or aggravated an emotional or physical condition, appellant has not met his burden of
proof to establish that he sustained a medical condition in the performance of duty causally
related to factors of his employment.
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 his burden of proof to establish that he
sustained an occupational disease in the performance of duty causally related to factors of his
federal employment.

11

See Michael E. Smith, 50 ECAB 313 (1999) (medical evidence which does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship).
12

Calvin E. King, 51 ECAB 394 (2000).

13

See Joe T. Williams, 44 ECAB 518, 521 (1993).

14

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the April 1, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2015
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
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, UNIVERSITY
STATION, Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0762
Issued: March 19, 2018

Case Submitted on the Record

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

JURISDICTION
On February 7, 2017 appellant filed a timely appeal from an August 17, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from August 17, 2016, the date of OWCP’s last decision was
February 13, 2017. Since using February 21, 2017, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is February 7, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its August 17, 2016
decision. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from considering this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUES
The issues are: (1) whether OWCP properly denied waiver of recovery of a $13,319.36
overpayment of compensation; and (2) whether it properly required recovery of the overpayment
by deducting $200.00 from appellant’s continuing compensation payments.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances outlined in
the Board’s prior decisions are incorporated herein by reference. The facts relevant to this
appeal are as follows.
On October 24, 2011 appellant, then a 50-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on September 13, 2011, she twisted her left ankle when
descending stairs while in the performance of duty. OWCP accepted the claim for left ankle
sprain and paid compensation for total disability beginning October 29, 2011.
OWCP, on September 25, 2013, informed appellant that it had electronically deposited
$13,319.36 into her account on November 23, 2012. It advised her that the money was deposited
in error and requested repayment of the funds.
On October 29, 2013, OWCP notified appellant of its preliminary determination that she
received an overpayment of compensation in the amount of $13,319.36 because it had
electronically transferred funds into her bank account in error. Appellant requested a
prerecoupment hearing. During the prerecoupment hearing, held before an OWCP hearing
representative on April 17, 2014, she testified that her husband told her he was waiting on a
payment for work and that she learned that the deposit was inaccurate when she received
OWCP’s September 2013 letter.
In response to OWCP’s request for information about her dependency status, appellant
indicated that her husband was self-employed and installed electrical equipment. She submitted
information regarding her income and expenses.5
By decision dated June 19, 2014, OWCP’s hearing representative determined that
appellant received an overpayment of compensation in the amount of $13,319.36 on
November 23, 2012 because OWCP had electronically deposited money into her account in
error. She found that appellant was at fault in the creation of the overpayment because she
accepted a payment that she knew or should have known was incorrect. The hearing
representative found that the overpayment should be recovered by deducting $200.00 from
continuing compensation payments.

4

Docket No. 14-1730 (issued April 13, 2015); Docket No. 16-0443 (issued May 3, 2016).

5

In a hardship affidavit form, appellant requested mortgage modification because of short-term hardship. She
indicated that her husband’s Social Security benefits had “been temporarily suspended” and that she had home
repairs, including replacing a furnace and the main sewer lines.

2

Appellant appealed to the Board. By decision dated April 13, 2015, the Board affirmed
in part and set aside in part the June 19, 2014 decision.6 It found that appellant received a
$13,319.36 overpayment as OWCP had mistakenly electronically transferred compensation
owed to another claimant into her bank account. The Board determined, however, that she was
not at fault in the creation of the overpayment and remanded the case for OWCP to consider
whether she was entitled to waiver of recovery of the overpayment based on current financial
information.
OWCP, on June 15, 2015, requested that appellant submit an overpayment recovery
questionnaire with supporting documentation so that it could evaluate whether she was entitled
to waiver of recovery of the overpayment. It did not provide a deadline for submission of the
information.
By decision dated August 10, 2015, OWCP denied waiver of recovery of the $13,319.36
overpayment of compensation. It found that appellant had not responded to its request for
current financial information. OWCP determined that it would recover the overpayment by
deducting $200.00 from her continuing compensation payments.
Appellant again appealed to the Board. By decision dated May 3, 2016, the Board set
aside the August 10, 2015 decision.7 It found that OWCP failed to inform her that she must
submit any evidence or argument in support of waiver of recovery within 30 days. The Board
remanded the case for OWCP to provide appellant with an overpayment recovery questionnaire
(Form OWCP-20) with notice of the 30-day time limitation prior to determining whether she is
entitled to waiver of recovery of the overpayment.
On June 9, 2016 OWCP again requested that appellant submit a completed overpayment
recovery questionnaire within 30 days with supporting documentation so that it could evaluate
whether she was entitled to waiver of recovery of the overpayment.
On her completed Form OWCP-20, June 21, 2016, appellant listed that she had no
income from any source. She identified her husband as a dependent. Appellant related that she
had assets in the Thrift Savings Plan (TSP), but did not specify an amount. She listed total
expenses of $3,398.00. Appellant also noted other unpaid loans. As documentation, she
submitted benefit statements showing the compensation she received from OWCP, bank account
statements in her name, credit card and utility bills, her mortgage bill, loan extensions, a letter
from the Internal Revenue Service about her unpaid balance on taxes, a settlement offer from
Dish television regarding an unpaid balance, letters from collection services, and a March 25,
2016 letter from the Office of Personnel Management approving her application for disability
retirement.
By decision dated August 17, 2016, OWCP denied waiver of recovery of the
overpayment. It found that appellant had not submitted adequate information regarding her
income, her spouse’s income, and her assets in the TSP for it to determine whether she was
6

Docket No. 14-1730 (issued April 13, 2015).

7

Docket No. 16-0443 (issued May 3, 2016).

3

entitled to waiver. OWCP noted that she substantiated expenses of $2,388.52 and that she
received $2,777.00 in compensation, for a difference of $388.48. It found that it would recover
the overpayment by deducting $200.00 from continuing compensation.
On appeal appellant contends that she submitted evidence about her income by providing
her benefit statements showing her compensation from OWCP. She asserted that her husband
did not receive any income. Appellant also argues that OWCP erred in finding that she was at
fault in creating the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8129 of FECA provides that an overpayment must be recovered unless “incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of [FECA] or would be against equity and good conscience.”8
(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result
in waiver of the overpayment. OWCP must then exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience.9
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.10
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes her position for the worse.11
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP,
as this information is needed to determine whether or not recovery of an overpayment would
defeat the purpose of FECA or be against equity and good conscience.12 This information would
also be used to determine the repayment schedule, if necessary. Section 10.438(b) provides that
8

5 U.S.C. § 8129.

9

See Wade Baker, 54 ECAB 198 (2002).

10

20 C.F.R. § 10.436. OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1)(b) (June 2009).
11

20 C.F.R. § 10.437.

12

Id. at § 10.438(a).

4

failure to submit the requested information within 30 days of the request shall result in denial of
waiver.13
ANALYSIS -- ISSUE 1
On prior appeal, by decision dated April 13, 2015, the Board affirmed OWCP’s finding
that appellant received an overpayment of compensation in the amount of $13,319.36 on
November 23, 2012 when it mistakenly deposited money into her bank account meant for
another claimant. It found, however, that she was not at fault in the creation of the overpayment
and remanded the case for consideration of waiver. In a May 3, 2016 decision, the Board again
remanded the case for OWCP to evaluate whether appellant was entitled to waiver after finding
that it did not inform her that the overpayment recovery questionnaire must be submitted within
30 days.
On June 9, 2016, OWCP provided appellant with an overpayment recovery questionnaire
and requested that she submit financial information with supporting documentation within 30
days.
In response, appellant submitted a partially completed overpayment recovery
questionnaire with some financial information. She listed expenses, but did not include
information on income for herself nor her spouse. Appellant further indicated that she had assets
in a TSP, but did not provide her amount. Savings in a TSP account are included in the asset
base.14
As appellant did not submit complete financial information, there was insufficient
evidence before OWCP to establish that recovery of the overpayment would defeat the purpose
of FECA or be against equity and good conscience.15 In requesting waiver, the overpayment
individual has the responsibility for submitting financial information.16 Appellant failed to
provide the requested information, as required by section 10.438 of its regulations, and thus was
not entitled to waiver.17 The Board thus finds that OWCP properly denied waiver of recovery of
the overpayment of compensation.
On appeal appellant asserts that she provided benefit statements documenting her
compensation from OWCP and that her husband did not receive income. She did not, however,
submit information regarding her assets in the TSP plan, and thus, as discussed, did not provide
sufficient evidence to support waiver of recovery of the overpayment.
Appellant also contends that OWCP erroneously found that she was at fault in creating
the overpayment. OWCP, however, determined that she was not at fault in creating the
13

Id. at § 10.438(b).

14
See C.P., Docket No. 14-0975 (issued September 11, 2014); R.A., Docket No. 13-1121 (issued
October 29, 2013).
15

See supra note 12; see also M.S., Docket No. 11-0096 (issued August 17, 2011).

16

See supra note 11; see also A.R., Docket No. 14-1681 (issued March 3, 2016).

17

Id.; see also L.B., Docket No. 09-1327 (issued April 6, 2010).

5

overpayment, but denied waiver. A finding that a claimant is without fault does not
automatically result in waiver. OWCP must exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.18 As noted, it properly denied waiver of the overpayment after finding that appellant
had not submitted sufficient evidence to determine whether recovery would defeat the purpose of
FECA or be against equity and good conscience.19
LEGAL PRECEDENT -- ISSUE 2
Section 10.441(a) of OWCP’s regulations provides that when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or her attention is called to the
same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize hardship.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that the overpayment would be
recovered by deducting $200.00 from appellant’s continuing compensation payments. As noted,
appellant failed to submit all the information necessary to properly represent her financial
situation. If appropriate documentation is not submitted as required, OWCP is unable to
consider financial circumstances.21 The Board notes that OWCP did evaluate the information
available, and found that appellant’s income from continuing compensation exceeded her
documented expenses by $388.48. The Board finds that OWCP did not abuse its discretion in
finding a repayment schedule of $200.00 from continuing compensation.
CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of a $13,319.36
overpayment of compensation and properly required recovery of the overpayment by deducting
$200.00 from appellant’s continuing compensation payments.

18

See L.S., Docket No. 59 ECAB 350 (2008).

19

See P.W., Docket No. 10-0483 (issued September 15, 2010).

20

Supra note 12 at § 10.441(a); see Steven R. Cofrancesco, 57 ECAB 662 (2006).

21

See M.S., supra note 15.

6

ORDER
IT IS HEREBY ORDERED THAT the August 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2018
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

7