D.M. and Department of the Navy, Civilian Personnel Department, Mayport, FL (Board decision, August 3, 2018)

ECAB final decision. The Board affirmed the overpayment recovery at $100 every 28 days and denial of a schedule award. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

D.M., a Navy employee, received FECA compensation and Social Security benefits attributable to federal service at the same time. The Board upheld a $48,000.17 overpayment for August 2004 through July 2016 and found him at fault, barring waiver. It affirmed recovery at $100 every 28 days from continuing compensation. It also affirmed denial of a schedule award because he submitted no medical evidence establishing ratable permanent impairment.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: November 16 and December 16, 2016 decisions affirmed.
• Key point: Overlapping federal benefits created the debt, and no medical evidence supported a schedule award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

_______
)
D.M., Appellant
)
)
and ) Docket No. 17-0983
) Issued: August 3, 2018
DEPARTMENT OF THE NAVY, CIVILIAN
)
PERSONNEL DEPARTMENT, Mayport, FL,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On April 4, 2017 appellant timely appealed from November 16 and December 16, 2016 merit decisions 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 appellant’s claim.2

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the amount of $48,000.17 for the period August 8, 2004 through July 23, 2016; (2) whether OWCP properly determined that appellant was at fault in the creation of the overpayment of compensation,

1
5 U.S.C. § 8101 et seq.
2
The Board notes that appellant submitted additional evidence with his appeal to the Board. 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 reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1). thereby precluding waiver of recovery of the overpayment; (3) whether OWCP properly required recovery of the overpayment by deducting $100.00 every 28 days from appellant’s continuing compensation payments; and (4) whether appellant met his burden of proof to establish permanent impairment of a scheduled member or function of the body, warranting a schedule award.

FACTUAL HISTORY

Appellant, then a 49-year-old mechanic, injured his right knee in the performance of duty on March 5, 1991. He filed a traumatic injury claim (Form CA-1) alleging that, as he was stepping from the pier to a crane, he twisted his right knee when boarding the crane. OWCP accepted appellant’s claim for lose body of the right knee, strain of the right knee, and aggravation of the degenerative arthritis of the right knee.

On April 8, 1991 appellant underwent right knee arthroscopy. He subsequently underwent a total knee replacement on August 6, 1991. On May 8, 1992 OWCP issued appellant a schedule award for 24 percent permanent impairment of his right leg. The award covered the period May 3, 1992 to August 29, 1993. On July 12, 1993 appellant was reemployed by the employing establishment as a clerk with wages of $365.11 per week. He was placed on the periodic compensation rolls commencing August 30, 1993.

Between August 23, 1991 and April 1, 2016, appellant regularly submitted annual Form EN1032 statements regarding his employment status, volunteer work, dependents, and other federal benefits received. He consistently denied receiving any retirement benefits from the Office of Personnel Management (OPM) or the Social Security Administration (SSA). When appellant reached age 62 in 2004, he became eligible to receive age-related Social Security retirement benefits. The record indicates that he was subject to Federal Insurance Contributions Act (FICA) withholding while a federal employee.3

By letter dated July 29, 2004, OPM was notified by OWCP that appellant had elected to receive retirement benefits in lieu of compensation benefits. A copy of the election form was provided to OPM. The effective date of election was April 26, 2004.

On March 4, 2015 OWCP was informed by SSA that appellant was receiving SSA benefits partially based upon his civilian federal service, or FERS, which began in May 2004. SSA advised OWCP that he was entitled to retirement benefits, which began in May 2004. It provided a breakdown of appellant’s monthly SSA benefits that included contributions from his Federal service (w/ FERS), as well as a monthly benefit that excluded his federal service contributions (w/o FERS). Beginning May 2004, appellant’s total monthly SSA benefit was $1,170.20 and the corresponding monthly amount excluding his federal service contributions was $888.40. SSA provided additional calculations for subsequent periods beginning December 2004 ($1,201.80/912.40), December 2005 ($1251.10/949.70), December 2006 ($1,292.30/981.10), December 2007 ($1,322.00/1,003.60), December 2008 to November 2011 ($1,398.60/1,061.70),

3
An April 9, 1991 notification of personnel action (Standard Form 50-B) identified appellant’s retirement plan as “FICA,” with an August 1, 1980 service computation date. As a temporary employee (Tenure “0”), appellant was not eligible for certain employee fringe benefits such as life insurance Federal Employees Group Life Insurance and a retirement annuity under the Federal Employees Retirement System (FERS).

2
December 2011($1,448.90/1,099.90), December 2012 ($1,473.60/1,118.60), December 2013 ($1,495.60/1,135.40), and December 2014 ($1,521.00/1,154.70).

In a development letter dated June 30, 2016, OWCP noted that they were contacting appellant in reference to the telephone conversation on June 30, 2016, regarding claiming a schedule award. It advised him that, in further consideration of his claim for a schedule award, he should arrange for the submission of a detailed narrative report from his treating physician, based on a recent examination, which included appellant’s physician’s opinion with regard to whether his conditions had reached maximum medical improvement (MMI), and if so, the date MMI was reached. Additional details were also requested, including a detailed description of any permanent impairment of the same member or function which preexisted the injury. OWCP noted that appellant should provide an impairment rating utilizing the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment, (hereinafter A.M.A., Guides)4 with an explanation of how the calculation was derived.

On July 25, 2016 OWCP notified appellant that SSA confirmed that a portion of his SSA benefits that he had been receiving since 2004 were attributable to federal service under FERS. It explained that his current monthly benefit was $1,521.00. However, if appellant’s FERS benefits were not included in his SSA computation, his SSA benefits would only be $1,154.70. OWCP explained that his FERS increased his monthly benefit by $366.30. Furthermore, the difference was the portion of appellant’s SSA benefit amount attributed by his federal service and the amount that must be offset by his compensation payments. OWCP also explained that since SSA payments were monthly and compensation payments were made every 28 days. It calculated the SSA deduction/offset to be $338.12 every 28 days. The offset was effective August 20, 2016 and appellant’s new net compensation payment was $446.52.

On September 15, 2016 appellant filed a claim for a schedule award (Form CA-7).

In letters dated September 21 and October 12, 2016, OWCP advised appellant that his claim would remain open for 30 days in order to afford him an opportunity to submit the required medical evidence regarding permanent impairment from his treating physician.

In a September 28, 2016 report, Dr. William G. Pujadas, a Board-certified orthopedic surgeon, noted appellant’s history of injury and treatment. He examined appellant and determined that he had a small effusion of the right knee, with a grating sensation from the patellofemoral joint incision well healed and no drainage or erythema. Dr. Pujadas noted a right artificial knee joint presence. He explained that appellant appeared to have worn out his knee. Dr. Pujadas recommended a workup and additional testing. He noted that appellant appeared to have a Striker total knee implant. Dr. Pujadas recommended proceeding with a complex revision right total knee arthroplasty.

On September 30, 2016 OWCP adjusted appellant’s compensation for the period July 24 through August 20, 2016, to reflect the proper offset on a prospective basis. It explained that, since no FERS offset deductions were taken from his compensation for the period August 8, 2004 through July 23, 2016, there was an overpayment of compensation. OWCP determined that, based

4
A.M.A., Guides (6th ed. 2009).

3 upon the figures provided by SSA, the amount that should have been offset from appellant’s compensation in the case would range from $281.80 per calendar month (prorated to $260.12 per each 28-day “plate.”) to $366.30 per calendar month (prorated to $338.12 per each 28-day “plate”). It explained that the period in question, August 8, 2004 through July 23, 2016, compromised a total of 4,368 days. OWCP calculated the amount of the offset per plate, to $48,000.17. A copy of the calculation worksheet was provided.

On September 30, 2016 OWCP issued a preliminary determination that appellant received an overpayment of compensation in the amount of $48,000.17 for the period August 8, 2004 through July 23, 2016. It explained that the overpayment was a result of him having received both FECA wage-loss compensation and social security retirement benefits based on his federal service, which was a prohibited dual benefit. Additionally, OWCP advised that appellant was at fault in the creation of the overpayment because he accepted payments which he knew or reasonably should have known were incorrect. It determined that although he signed numerous EN1032 forms indicating that he was not in receipt of SSA benefits as part of an annuity for federal service, SSA provided information which indicated that he was in receipt of these benefits since 2004. OWCP advised appellant that, within 30 days, he could request a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing. It requested that he complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial documents.

In an October 16, 2016 response to the preliminary overpayment decision, appellant questioned the fact of overpayment as well as the finding of fault. He questioned why the dual benefit calculation was dated March 3, 2015, when he had contacted the office many times over the years. Appellant also noted that he had requested a congressional inquiry which confirmed that his FECA compensation was correctly paid. He argued that he was the sole provider for two disabled children, a son and a daughter. Appellant noted that his daughter died and his son still lived with him and his wife, who was battling cancer. He explained that they could not afford her medicine and she took her meds every other day so they would last longer, even though they were supposed to be taken daily. Appellant requested a waiver and explained that it would be against equity and good conscience to make him choose between his medicine and food and an overpayment.

By decision dated November 16, 2016, OWCP denied appellant’s claim for a schedule award as the evidence submitted was insufficient to establish permanent impairment of a scheduled member or function of the body. It found that the medical evidence of record supported a finding that his condition had not reached a fixed and permanent state, which was a requirement for a schedule award.

During a telephone conference, held on December 9, 2016, OWCP noted that the information on the Form OWCP-20 showed that appellant had a combined monthly income of $2,075.00 from his OWCP and SSA benefits, and his spouse’s SSA benefits. OWCP’s claims examiner noted that appellant indicated that there were two other adults in the home who did not have any income to contribute to the monthly expenses. Additionally, the claims examiner confirmed that appellant did not have any assets such as stocks, bonds, etc. It noted that his expenses included: his rent/mortgage, $875.00, food, $500.00, car payment, $350.00, credit card payments, $80.00, and utilities, $500.00. The claims examiner found that, based on the above, the

4 monthly income minus monthly expenses left a surplus of $330.00. Appellant also provided documentation to include: copies of bank statements, his lease agreement, electric bill, credit card payment, and a cable/telephone bill.

OWCP noted that appellant’s monthly income was his OWCP compensation and SSA, $1,646.52 and his spouse’s SSA, $600.00 for a total monthly income of $2,246.52. During the conference, appellant reiterated that the above listed income was used to support the entire household. He also explained they had additional expenses of pharmacy costs not covered by insurance for him and his wife of approximately $200.00. Appellant explained that they both had serious medical issues. He also clarified that the utilities included: $334.00 for electric; and cable/telephone $160.00. Appellant provided additional expenses of car insurance $178.00. He also explained that he had a disabled son who did not receive any monetary benefits, including SSA or health insurance, and he had to pay periodic medical expenses for him. Appellant also explained that he also supported his adult daughter who did not work and did not receive any federal benefits. Furthermore, appellant’s daughter did not have health insurance.

On the completed Form OWCP-20 overpayment recovery questionnaire, appellant requested waiver of recovery of the overpayment. He explained that he met with SSA in 2004 and was told that there would be no offset since he worked in the private sector prior to working for the Federal Government. Appellant listed the names of the SSA employees he met with, whom he listed as the office director. In response to why he believed that the incorrect payment was due to him and why the overpayment was not his fault, he explained that his income did not change much from 1991. Furthermore, it went by direct deposit to his bank. Appellant explained that he also went to the SSA in 2004 and he was told that if OWCP “had paid this long, it was paying the correct amount.” He further explained that there was no change in his pay. Appellant noted that, after being paid for “[20] plus years, you would think if the pay was wrong, OWCP would correct it way before now. How in the world would we know we were being overpaid?” He indicated that, in 1991, after all the telephone calls he made to OWCP over the years, “not one time did any one mention anything about overpayment.” Appellant reiterated his inquiry of how was he supposed to know that he was being paid the correct amount. His income was listed as $2,075.00 and his expenses were listed as $2,405.00.

By decision dated December 16, 2016, OWCP finalized the preliminary determination regarding the fact and amount of the overpayment, as well as its finding that appellant was at fault in the creation of the overpayment. Regarding appellant’s request for waiver of recovery of the overpayment, it found that he had not relinquished a valuable right or changed his position for the worse in reliance on the excess compensation he received. OWCP further found that recovery of the overpayment would not defeat the purpose of FECA or be against equity and good conscience based on the information provided on OWCP-20 form and in the conference since appellant was receiving benefits from OWCP. It found that he was at fault in the creation of the overpayment because he accepted compensation payments that he knew or should have known to be incorrect, thereby precluding waiver of recovery of the overpayment.

With respect to monthly expenses, OWCP found appellant’s reasonable and documented monthly expenses were: $875.00 rent, $500.00 food, $350.00 car payment, $80.00 credit card payments, $500.00 utilities, ($334.00 electric and $160.00 cable/telephone), $178.00 car insurance, and $200.00 pharmacy prescriptions, totaling $2,683.00 per month. It noted that he

5 indicated that he had a disabled son who did not receive any monetary benefits or health insurance and he also had periodic medical expenses related to his care. Furthermore, OWCP noted that appellant indicated that he also supported his adult daughter, who had no income and did not receive any benefits or health insurance. Appellant’s monthly income was found to be $1,646.52 based on compensation and SSA benefits and his wife’s income was $600.00 from SSA benefits. The combined income was $2,246.52. The expenses exceeded the monthly income by $436.48 per month. OWCP directed repayment of the overpayment by deducting $100.00 per 28 days from appellant’s continuing compensation. It explained that this was to minimize the hardship on him to repay the overpayment while minimizing interest charges.

LEGAL PRECEDENT -- ISSUE 1

Section 8116(d) of FECA requires that compensation benefits be reduced by the portion of SSA benefits that are attributable to federal service and that, if an employee receives SSA benefits based on federal service, his or her compensation benefits shall be reduced by the amount of SSA benefits attributable to his or her federal service.5

OWCP procedures provide that, while SSA benefits are payable concurrently with FECA benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by SSA benefits paid on the basis of age and attributable to the employee’s federal service.6 The offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits. SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA will also provide a hypothetical SSA benefit computed without the FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual benefit to determine the amount of benefits which are attributable to federal service and that amount will be deducted from FECA benefits to obtain the amount of compensation payable.7

ANALYSIS -- ISSUE 1

The record supports that appellant received FECA wage-loss compensation beginning on August 30, 1993 and that he received SSA benefits beginning August 8, 2004. The portion of the SSA benefits he earned as a federal employee was part of his FERS retirement package, and the receipt of benefits under FECA and federal retirement benefits concurrently is a prohibited dual benefit.8 Appellant’s FECA compensation was not offset until July 26, 2016. SSA notified OWCP of the applicable SSA rates for him and their effective dates. Based on these rates, OWCP was able to calculate the dual benefit appellant received from August 8, 2004 to July 23, 2016,

5
5 U.S.C. § 8116(d). See G.T., Docket No. 15-1314 (issued September 9, 2016).
6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995); Chapter 2.1000(e)(2) (February 1995). OWCP does not require an election between FECA benefits and SSA benefits except when they are attributable to the employee’s federal service. See R.C., Docket No. 09-2131 (issued April 2, 2010). 7 E.C., Docket No. 14-1743 (issued December 4, 2014); FECA Bulletin No. 97-09 (issued February 3, 1997).
8
See P.G., Docket No. 13-0589 (issued July 9, 2013).

6 which yielded an overpayment of compensation in the amount of $48,000.17. The record includes an overpayment worksheet explaining the overpayment calculation. Therefore, the evidence of record establishes that appellant received an overpayment of compensation in the amount of $48,000.17.

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA9 provides that an overpayment of compensation shall be recovered by OWCP 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.10 OWCP may not waive the overpayment of compensation unless appellant was without fault.11 Adjustment or recovery must, therefore, be made when an incorrect payment has been made to an individual who is with fault.12

On the issue of fault, section 10.433 of OWCP’s regulations, provides that an individual will be found at fault if he or she has done any of the following:

“(1) made an incorrect statement as to a material fact which he or she knew or should have known to be incorrect; (2) failed to provide information which he or she knew or should have known to be material; or (3) accepted a payment which he or she knew or should have known was incorrect.”13

With respect to whether an individual is without fault, section 10.433(b) of OWCP’s regulations provides in relevant part:

“Whether or not [OWCP] determines that an individual was at fault with respect to the creation of an overpayment depends on the circumstances surrounding the overpayment. The degree of care expected may vary with the complexity of those circumstances and the individual’s capacity to realize that he or she is being overpaid.”14

ANALYSIS -- ISSUE 2

OWCP applied the third standard in determining that appellant was at fault in the creation of the overpayment. Thus, the issue is whether, at the time of acceptance of the compensation payment, he knew or should have known that it was incorrect.

9
5 U.S.C. § 8129(b).
10
Michael H. Wacks, 45 ECAB 791, 795 (1994).
11
Norman F. Bligh, 41 ECAB 230 (1989).
12
Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).
13
20 C.F.R. § 10.433(a).
14
Id. at § 10.433(b).

7
 Appellant alleged that the overpayment occurred through no fault of his own and requested waiver of recovery of the overpayment. He explained that he met with SSA in 2004 and was told that there would be no offset since he worked in the private sector prior to working for the Federal Government. Appellant listed the names of the SSA employees he met with, whom he listed as the office director. In response to why he believed that the incorrect payment was due to him and why the overpayment was not his fault, he explained that his income did not change much from 1991. Furthermore, it went by direct deposit to appellant’s bank. Appellant explained that he also went to the SSA in 2004 and he was told that if OWCP “had paid this long, it was paying the correct amount.” He further explained that there was no change in his pay. Appellant noted that after being paid for “[20] plus years, you would think if the pay was wrong, OWCP would correct it way before now. How in the world would we know we were being overpaid?” He indicated that, in 1991, after all the telephone calls he made to OWCP over the years, “not one time did any one mention anything about overpayment.” Appellant’s income was listed as
$2,075.00 and his expenses were listed as $2,405.00. However, the Board notes that he over the years signed the multiple periodic EN1032 forms, indicating that he was not in receipt of the SSA benefits as part of his annuity for federal service since 2004. The Board notes that although appellant would contact OWCP over the years his explanation does not show that he did not know he was accepting an incorrect payment. The evidence establishes that he reasonably should have known that he was accepting a payment which was incorrect. The Board finds that appellant is at fault in the creation of the overpayment under the third criterion noted above. To the extent that he is arguing that OWCP made the mistake and that he should not be considered at fault, the fact that OWCP may have been negligent in issuing the continuing compensation checks does not mitigate this finding.15 As the evidence of record establishes that appellant was at fault in the creation of the overpayment in compensation, the Board finds that he is not entitled to waiver of recovery of the overpayment.16

LEGAL PRECEDENT -- ISSUE 3

The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those cases where OWCP seeks recovery from continuing compensation.17 Section 10.441(a) of the regulations provides:

“When an overpayment has been made to an individual who is entitled to further payments, the individual shall refund to [OWCP] the amount of the overpayment as soon as the error is discovered or his [or her] attention is called to same. If no refund is made, [OWCP] shall decrease later payments of compensation, taking into account the probable extent of future payments, the rate of compensation, the financial circumstances of the individual, and any other relevant factors, so as to minimize any hardship.”18

15
See id., at § 10.435(a); William E. McCarty, 54 ECAB 525 (2003).
16
Sinclair L. Taylor, 52 ECAB 227 (2001).
17
Lorenzo Rodriguez, 51 ECAB 295 (2000).
18
20 C.F.R. § 10.441(a).

8
 The analysis that determines the amount of adjustment is substantially the same as that used to determine waiver.19

ANALYSIS -- ISSUE 3

Appellant submitted a Form OWCP-20 and supporting financial documentation. His noted expenses were: $875.00 rent, $500.00 food, $350.00 car payment, $80.00 credit card, $500.00 utilities, $178.00 car insurance, and $200.00 pharmacy prescriptions, totaling $2,683.00 per month. Appellant’s monthly income was reported at $2,256.52, based on compensation and SSA benefits. OWCP concluded that he could repay the overpayment by deducting $100.00 every 28 days from his continuing compensation payments. It also noted that this was to minimize the hardship on appellant to repay the overpayment while minimizing interest charges.

The Board finds that OWCP properly considered the relevant factors under 20 C.F.R.
§ 10.441. OWCP procedures indicate that OWCP’s hearing representative should evaluate the claimant’s financial information and establish the highest reasonable rate of repayment which will collect the debt promptly and at the same time minimize any hardship to the claimant. The hearing representative considered the financial information submitted and reasonably found that the overpayment of compensation could reasonably be recovered by deducting $100.00 from continuing compensation every 28 days.20 The Board finds that OWCP properly determined the recovery of the overpayment in this case.

On appeal appellant maintains that he was not at fault in creating the overpayment and repayment would cause financial hardship. He explained that he was paid the same from OWCP since 1991. Appellant also noted that he had worked for 25 years in the private sector. He indicated that his SSA was for his heart disability and not with his OWCP file. Appellant also notes that he went to the SSA office, and was told that it was not an annuity. He also explains that he believed that his SSA was not for his federal service and he reiterated that he had no idea that it was. Appellant again explained all of his expenses and that he was the sole supporter for his family. He requested a hardship waiver. For the reasons set forth above OWCP properly denied waiver of recovery of the overpayment.

LEGAL PRECEDENT -- ISSUE 4

Section 8107 of FECA21 sets forth the number of weeks of compensation to be paid for the permanent loss of use of specified members, functions, and organs of the body.22 FECA does not specify the manner by which the percentage loss of a member, function, or organ shall be determined. To ensure consistent results and equal justice for all claimants under the law, good

19
See Howard R. Nahikian, 53 ECAB 406 (2002).
20
As noted in the informal conference, the documented expenses left a surplus of $330.00 per month.
21
Supra note 1.
22
5 U.S.C. § 8107.

9 administrative practice requires the use of uniform standards applicable to all claimants.23 The A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for evaluating schedule losses.24

In addressing lower extremity impairments, the sixth edition requires identifying the impairment that it should be Class of Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).25 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).26

OWCP’s procedures provide that, to support a schedule award, the file must contain competent medical evidence which shows that the impairment has reached a permanent and fixed state and indicates the date on which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.27

ANALYSIS -- ISSUE 4

The Board finds that the evidence of record is insufficient to establish permanent impairment of a scheduled member or function of the body, warranting a schedule award.

Appellant has not submitted any medical evidence to support a claim for a schedule award.
In letters dated June 30, September 21, and October 12, 2016, OWCP requested that his treating physician provide an opinion on impairment. However, no evidence of impairment was received. The only report received was a September 28, 2016 report from Dr. Pujadas, who recommended additional treatment, but did not provide an impairment rating.

Consequently, appellant has not established that his accepted condition reached MMI and that his accepted knee conditions caused a permanent impairment to a scheduled member of the body. As such evidence has not been submitted, he has not established entitlement to a schedule award.

Appellant may request a schedule award or increased schedule award at any time based on evidence of a new exposure or medical evidence showing progression of an employment-related condition resulting in permanent impairment or increased impairment.

23
Ausbon N. Johnson, 50 ECAB 304, 311 (1999).
24
20 C.F.R. § 10.404.
25
A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).
26
Id. at 521.
27
Supra note 6 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (March 2017).

10
 CONCLUSION

The Board finds that appellant received an overpayment in the amount of $48.000.17 for the period August 8, 2004 through July 23, 2016. The Board further finds that he was at fault in the creation of the overpayment and, therefore, not subject to waiver of recovery of the overpayment. The Board finds that OWCP properly required recovery of the overpayment by deducting $100.00 every 28 days from his continuing compensation payments. The Board also finds that appellant did not meet his burden of proof to establish permanent impairment of a scheduled member or function of the body, warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the December 16 and November 16, 2016 decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: August 3, 2018
Washington, DC

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

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

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

11