1996 FECA Circulars Archive

1996 FECA Circulars which have previously been issued by the DFEC but have since been superseded by another Circular or inclusion in the FECA Procedure Manual.

Fiscal Year 1996
Circular	Subject
FECA Circular No. 96-01	Selected ECAB Decisions for April Through June 1995
FECA Circular No. 96-02	Increases in the Reimbursement Rate for OWCP Contract Field Nurses
FECA Circular No. 96-03	Current Interest Rates for Prompt Payment Bills and Debt Collection
FECA Circular No. 96-04	Selected ECAB Decisions for October - December 1995
FECA Circular No. 96-05	Selected ECAB Decisions for July - September 1995
FECA Circular No. 96-06	Current Interest Rates for Prompt Payment Bills
FECA Circular No. 96-07	Computation of Compensation for Rural Letter Carriers (09/96A)
FECA Circular No. 96-08	Selected ECAB Decisions for April - June 1996 (09/96B)

Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 96-01

October 25, 1995

Subject: Selected ECAB DECISIONS for APRIL through JUNE 1995

Attached is a group of abstracts of selected ECAB decisions for study and individual filing by subject.

This group of decisions includes three that discuss medical evidence, one of which addresses the questions of whether a telephone contact with the contracted physician was proper and whether questions posed to the doctor by the Office were or were not leading questions. There are two summaries which relate to overpayments, one which concerns forfeiture and the other which addresses fault finding. There are four summaries which deal with the issue of performance of duty, none of which were affirmed by the Board. In two of those decisions the Office was reversed, one was a rescission of the acceptance, and the other concerned whether or not the injury occurred on the employer's premises. In the other two performance of duty decisions, both of which alleged harassment, the Board remanded the case for the Office to make findings of fact. There is one decision in which the Board affirmed the Office's rescission, and there are three decisions which address the issue of wage-earning capacity.

The selected ECAB decisions for January through March 1995 were not published as no decisions on novel issues were made during that period.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Distribution: List No. 1--Folio Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, and Rehabilitation Specialists, and Staff Nurses)

IMPARTIAL EVALUATIONS - LEADING QUESTIONS AND TELEPHONE CONTACT

Carl D. Johnson, Docket No. 94-404, Issued May 31, 1995

In this case, the claim had been accepted for temporary aggravation of multiple sclerosis. A previous Office decision terminating benefits had been reversed by the Board. The Office subsequently referred the claimant to a Board-certified neurologist for an impartial medical evaluation. The Office asked the specialist to answer the following questions:

1. Has the temporary aggravation of the preexisting multiple sclerosis ceased? Please explain how you arrived at your conclusion and note the findings you used.

2. If the temporary aggravation has not ceased, when would it be expected to do so? Please explain.

After receiving the specialist's initial report, the Office sent a letter requesting clarification. The specialist telephoned the Office a few days later, and spoke with a senior claims examiner. The physician stated that he was confused by a letter concerning permanent aggravation that he had received from the claimant's attorney. The specialist was informed by the senior claims examiner that the attorney was not to interfere with the impartial evaluation process, and that the physician should respond directly to the questions posed by the Office.

After receiving the specialist's supplemental report, the Office terminated benefits on the basis that the work-related temporary aggravation of the claimant's pre-existing condition had ceased. The Board affirmed the decision.

In forming their decision, the Board considered whether the questions posed to the specialist were leading questions. The Board found that the questions were not leading, as they did not suggest or imply an answer to the questions posed. They also considered whether the contact between the senior claims examiner and the specialist was improper. They found that the contact was not improper in this instance, as there was no discussion of the disputed issues.

MEDICAL EVIDENCE - WEIGHING AN IMPARTIAL SPECIALIST'S REPORT

William P. Levis, Docket No. 93-2321, Issued May 1, 1995

In this interesting decision, the Board made a tough call on the relative weight of an impartial specialist's report.

The claimant's injury was sustained when he was standing on a chair, reached to water a plant, and felt pain in his right groin area. Notice of injury was filed more than two months after the injury. The Office accepted a right groin strain and paid appropriate compensation. Several months later, the Office received a report from the claimant's attending orthopedist, who noted that the claimant had advanced degenerative arthritis of the right hip and recommended hip joint replacement surgery. The Office denied authorization for the surgery on the basis that the medical evidence did not support a causal relationship between the work injury and the need for surgery. The claimant was instructed to submit medical evidence which contained a well-rationalized opinion supporting the relationship between the requested surgery and the work injury.

The attending orthopedist subsequently submitted another report, in which he stated:

In regard to the causal relationship between the ... injury and the resultant hip injury, it is well known that a person can have progressive underlying, but nonsymptomatic development of degenerative change until a specific incident or injury which will stress the diseased joint ... it is my opinion that [the claimant] likely was developing progressive degenerative changes of both hips, but that this problem remained nonsymptomatic until his [work] injury which placed an increased degree of physical stress on the right hip joint which has resulted in the current progressive symptomology and physical limitations ... This ... falls under the category of a disease which has been materially aggravated by an on-the-job injury...I feel that this is classified as a permanent aggravation as [he] has certainly continued to have progressive symptomology over the previous six months which has not responded to conservative treatment modalities.

An Office referral physician, an orthopedic surgeon, stated that there was nothing unusual or traumatizing in the claimant's stepping down from a chair after watering a plant. He stated that there was a definitive difference between the onset of pain in the course of normal activity and another action which actually increases the pathology to render the pre-existing condition painful.

The Office referred the claimant to an impartial orthopedic surgeon for examination, who stated, "appellant had a compensated type of arthritis which became decompensated in the normal course of his employment with any injury...there is no history of an actual injury occurring and, therefore, I cannot substantiate that this was an injury arising out of employment but rather could have arisen in the course of his normal every day activities whether he was employed or not."

The Office denied authorization for right hip replacement surgery on the basis that the right hip condition was not related to the work injury.

The Board found that the case was not in posture for a decision. They found that a conflict of medical opinion still existed because the impartial physician's opinion contained little rationale and was based on an inaccurate factual background. The Board stated that the physician was apparently under a mistaken impression that an unusual injury at work was necessary in order for a claim to be work-related, and directed the Office to obtain another impartial evaluation.

When a conflict of opinion is resolved through the use of an impartial medical examiner, the Office must thoroughly assess whether the impartial physician's report is based upon an accurate history, and whether it is sufficiently rationalized to be accorded special weight.

MEDICAL OPINIONS

Frank P. Siderio, Docket No. 94-33, issued April 25, 1995

While the primary issue in this case is whether the claimant sustained a recurrence of disability, the interesting point involves the medical evidence.

On a prior appeal, the Board remanded the case for referral of the claimant, the medical record and a statement of accepted facts to a Board-certified specialist for a reasoned opinion regarding whether the claimant's current condition is causally related to his employment-related injury. The physician selected noted his findings on examination and stated:

The records that I reviewed indicate that he sustained a relatively mild neck sprain in March 1989, he was subsequently treated for right upper extremity symptoms after two subsequent traumatic episodes, he had an EMG [electromyogram] more than six months after the auto[mobile] accident and at that time there was no evidence of any cervical nerve root irritation and he was instead considered as having a carpal tunnel syndrome and a shoulder tendinitis that responded to local injection, and it is therefore impossible for me to tell what role, if any, the March 1989 accident played in the need for the subsequent surgery that was performed several years later. The records reflect that he had x-ray evidence of cervical spine degenerative arthritis in March 1989, and it is quite possible that a strained neck in March 1989 might have been followed by symptoms that were prolonged because of his preexisting degenerative arthritis, however, because of the above factors and the additional fact that there is no mention of any neck symptoms during much of the time that he was treated for right upper extremity symptoms, I believe that it is impossible for me or anyone else to offer any opinion with reasonable certainty about any causal relationship between the 1989 accident and the need for the subsequent surgery such a long time later.

The OWCP then denied the claim on the grounds that the evidence was insufficient to establish a recurrence of disability causally related to the employment injury.

However, the Board found that the case was not in posture for decision and remanded it. Because the physician selected by OWCP stated that it was impossible for him to offer any opinion with reasonable certainty about the causal relationship between appellant's accident and need for the subsequent surgery, the OWCP should refer appellant to another specialist for an opinion on this issue.

FORFEITURE DUE TO UNDERSTATEMENT OF EARNINGS

Mike Rabago, Docket No. 94-124, issued June 7, 1995

The Board ruled that the Office had improperly found that the claimant had forfeited his right to compensation for the periods May 4 to November 30, 1991 and May 12 through September 10, 1992.

The claimant then requested a hearing, prior to which he submitted an affidavit attesting to alleged repercussions from writing to a Senator about a various problems at work, including racial discrimination, verbal abuse, threats of physical violence, removal of employees and denial of union representation. He also stated that the employing agency had refused to give him copies of documents showing hours of sick and annual leave, which he needed to pursue various grievances, and that the agency had stated that the grievances themselves would be handled at a level where management would not have to deal with him. The claimant also submitted a letter written by the employing agency's Field Division General Manager/Postmaster on this subject.

At the hearing, the claimant testified about problems at the employing agency since he began working there in 1976. He also testified about his union activities, stating that he had been active as a steward for approximately 1« years. The claimant alleged that after he became union steward he was removed from this position for 30 days because management was afraid of him and that eventually he filed a grievance with the National Labor Relations Board alleging retaliation. He indicated that he was informed that he would not be promoted to a supervisory position because of the time lost from his employment injuries, and that he had an argument with a supervisor in a local bar regarding grievances he had filed and that friends of the supervisor attempted to jump him. The claimant stated that he was disciplined for conducting union business without first requesting union time, and that he had filed a number of Equal Employment Opportunity Commission (EEOC) complaints and each time that he filed a complaint he would be harassed by management.

The hearing representative affirmed OWCP's decision denying the claim. The hearing representative found that the claimant had not alleged any factors of employment which were compensable under the FECA.

The Board found that this case is not in posture for decision. Some of the claimant's allegations clearly fell outside performance of duty: he was denied a promotion, and he perceived harassment where none was established. However, he also alleged that while he was performing his duties as a union steward, management refused to act in ways which were in violation of the National Agreement. The claimant introduced evidence indicating that the employing agency admitted that its failure was in violation of the National Agreement.

The case was remanded for further development, including a finding as to whether appellant was performing "representational functions" which entitled him to official time. If so, then an incident occurring as a result could constitute a compensable factor of employment. The OWCP was directed to issue a de novo decision after appropriate development.

PERFORMANCE OF DUTY: EMOTIONAL CONDITION DUE TO COWORKER HARASSMENT

Joseph A. Pietro, Docket No. 94-211, issued June 26, 1995

The Board ruled that the Office had erred in its finding that the claimant's reaction to a harassing sign placed by a coworker did not occur in the performance of duty. The decision was set aside and the case remanded for further development to include a proper finding of fact.

The claimant was a 47-year-old clerk for the U.S. Postal Service who claimed the development of stress, a depression and the worsening of his tinnitus as having resulted from the placement of a blatantly discriminatory sign being placed in his work area. The claimant submitted his own narrative statement and witnesses' statements supporting that the following sign was hand-written and hung in the light-duty work area by a co-worker: "No Physically or Mentally Impaired People Belong in this Area. Thank you." The claimant's statement also explained that he and other partially disabled people were assigned to work in the limited duty area in order to accommodate their medical restrictions. In a grievance filed relating to this issue, the claimant also produced a witness statement indicating that a general clerk had showed the witness a computer printout with private medical information regarding the witness and himself. He objected to such information being accessible to unauthorized personnel at the employing agency.

The claimant's employer responded to his allegations in a letter some three months after he filed his compensation claim. It acknowledged that the sign had been placed in the claimant's work area, and stated that the sign had been removed and destroyed. The Office subsequently denied the claim stating that the claimant had failed to establish that his injury occurred in the performance of duty. It further found that the claimant's reaction to the computer printout of private medical information was not in the performance of duty as it was an administrative practice not established to have been abusive or in error.

On finding that the case was not in posture for decision, the Board noted that in cases involving emotional conditions, the Office must make findings of fact, as part of its adjudicatory function, specifying which of the working conditions claimed would be considered employment factors and which would not. Once one or more employment factors have been established, the Office must determine whether the evidence of record supports the truth of the matter asserted.

The Board noted that the Office's finding that the claimant's reaction to the harassing sign was not in the performance of duty was in error. The Board cited its ruling in Gregory J. Meisenburg, Docket 92-1098, issued February 24, 1993:

To the extent that disputes and incidents alleged as constituting harassment by coworkers are established as occurring and arising from appellant's performance of his regular duties, these could constitute employment factors.

It was also noted that even if the placement and content of the sign arose from a personal matter between the claimant and the coworker, this fact would not have the force of disproving its connection to work. The Board further noted that even if an altercation or, as in this case, harassment arose from a nonwork topic, it could still be compensable if the employment brought the claimant and his coworker together and created the condition which resulted in the altercation or harassment. In this case the Board held that the claimant's and coworker's work brought them together and created the conditions that resulted in the harassment which was the culmination of daily work contact pressure. Therefore, the claimant had established a compensable employment factor.

In addition, the Board noted that the Office shares the responsibility of developing the evidence where the claimant submits clearly supportive evidence which is not sufficient to carry the burden of proof. The Board directed the Office, therefore, to advise the claimant of the remaining deficiencies in the case and to allow him at least thirty calendar days to submit additional evidence sufficient to discharge the required burden of proof.

PERFORMANCE OF DUTY: PREMISES

John R. Harrington, Docket No. 94-128, issued June 6, 1995

The Board found that the claimant had established that his injury occurred in the performance of duty in that the snow covered parking lot should be considered part of the employer's premises.

The claimant was a 47-year-old aviation safety inspector when on December 3, 1991 he slipped and fell on wet snow in the parking lot after arriving for work. The case had initially been denied on the basis that the medical evidence was insufficient to establish fact of injury. Subsequently, a hearing representative found that the medical was sufficient to establish an injury but that the issue of performance of duty needed to be addressed.

On requesting additional evidence from the employer, the Office determined that the parking lot was not owned by the employing establishment, nor did the employer contract for the exclusive use of the parking area, and it denied the claim in a de novo decision finding that the injury did not occur in the performance of duty. In a reconsideration decision of August 1993 the Office again denied the claim on the basis that the evidence was insufficient to warrant modification of the previous decision. The decision asserted that the government could not be held liable for a slip and fall in an area which it did not maintain or control.

The Board pointed out, however, that while it was evident that the employer did not own or maintain the parking lot, the lack of ownership and control alone do not establish that the parking lot was outside the premises of the employer. The Board stated:

The term `premises' as it is generally used in workmen's compensation law, is not synonymous with `property.' The former does not depend on ownership, nor is it necessarily coextensive with the latter. In some cases `premises' may include all the property owned by the employer; in other cases even though the employer does not have ownership and control of the place where the injury occurred the place is nevertheless considered part of the `premises.'

The Board noted further that the premises of the employer is more dependent on the relationship of the property to the employment than on the status or extent of legal title. It enumerated the several factors which determine whether a parking lot used by employees may be considered part of the employer's premises: 1) whether the employing agency contracted for the exclusive use of the parking area by its employees; 2) whether the spaces on the lot were assigned by the employer to its employees; 3) whether the parking areas were checked to see that no unauthorized cars were parked in the lot; 4) whether parking was provided without cost to the employees; 5) whether the public was permitted to the use the lot; and 6) whether other parking was available to the employees.

The Board used the above factors to determine whether the parking lot should be considered part of the employer's premises for the purposes of the FECA. On review of the record it was noted that: 1) the employer was the primary tenant of Building 12 with some 400 employees using a 300-space parking lot; 2) the employees were clearly expected to use the parking lot; 3) parking permits were issued to the employees, although spaces were not assigned; 4) the public was not allowed to park in the lot, and the lot was monitored at times to ensure that unauthorized vehicles were not parked there; 5) the lessor of the building had, at the employer's request, ensured that tenants from other buildings would not be allowed to park in the Building 12 lot; and 6) other parking was not specifically made available to the employees if their designated lot was full.

The Board found under the circumstances that the relationship between the parking lot and the employing establishment was sufficiently close as to constitute the "premises" of the employer. It therefore reversed the August 1993 decision of the Office, finding that the claimed injury was sustained in the performance of duty.

PERFORMANCE OF DUTY/RESCISSION OF CLAIM

Thomas E. Keplinger, Docket No. 93-2359, issued April 12, 1995

This claim was based on a dog bite which occurred when the claimant, a letter carrier, stepped inside of a postal patron's garage. The claim was originally accepted for dog bites to the right hand and left leg, but the acceptance was later rescinded on the basis that the claimant removed himself from the performance of duty and deviated from his usual mail delivery route when he entered the garage to canvass the patron for permission to cross the lawn in the course of delivering mail. Various statements were submitted by postal supervisors and co-workers concerning this issue.

In the Memo to the Director which accompanied the rescission, the claims examiner stated that obtaining such statements was not a requirement of appellant's job and that he apparently did so to extend his street time. The claims examiner concluded that, by entering the patron's home, the claimant removed himself from his regular duties, and it was this action that precipitated the attack by the dog.

The claimant then requested a hearing, prior to which he submitted statements from co-workers which provided various accounts of the instructions given the carriers concerning the statements to be obtained from postal patrons about crossing lawns. At the hearing itself, the claimant testified concerning various aspects of his route and the rules governing where he should walk. The Hearing Representative affirmed the rescission of the acceptance on the basis that the claimant did not show that he was fulfilling the duties of his employment or engaged in incidental activities.

The claimant's previous injury was a lumbosacral strain which occurred on May 31, 1991 when she bent over to pick up mail. She had returned to work with restrictions on November 12, 1991. The claimant filed a CA-8 on December 23, 1991 for disability from work beginning December 10, 1991 and continuing. She returned to duty with restrictions on March 9, 1992. Based on the claims and the medical evidence from the claimant's attending physician, the Office accepted the recurrence and paid compensation until her return to duty.

As a result of a Postal Service investigation, it was revealed that the claimant was in a non-work-related auto accident on December 9, 1991 for which she received medical treatment. As exhibits to the investigative memoranda there were numerous documents, including statements from the claimant, a police report, and a number of medical reports noting the claimant's injuries to the head, neck and left shoulder resulting from the automobile accident. The Office, on November 5, 1992, rescinded its acceptance of the claimant's recurrence of disability on December 10, 1991 and terminated compensation based on no evidence of residuals from the original injury. A hearing decision of September 9, 1993 affirmed the district office decision.

The Board found that the Office properly rescinded its acceptance of the recurrence, noting:

Once the Office has accepted a claim, it has the burden of justifying termination or modification of compensation. This holds true where the Office later decides that it erroneously accepted the claim. To justify rescission of acceptance, the Office must show that it based its decision on new evidence, legal argument and/or rationale.

After recounting the new evidence the Board found that the Office had met its burden of proof by advancing sufficient new evidence to establish that it had erroneously accepted the appellant's claim of recurrence of disability commencing on December 10, 1991. It is also important to note that the basis for a rescission may not merely be a reinterpretation of the same set of facts, or a look with new eyes. In the present case there was clearly compelling new evidence that the previous acceptance had been in error, and that the rescission was warranted.

REDUCTION OF COMPENSATION TO ZERO FOR FAILURE TO COOPERATE WITH VOCATIONAL REHABILITATION

Tony R. Scott, Docket No. 95-252, Issued May 23, 1995

The claim was accepted for a low back strain and herniated nucleus pulposus at L4-5. In April of 1992, an Office rehabilitation specialist referred the claimant to a rehabilitation counselor (RC) for plan development. In a work restriction evaluation dated May 1992, the claimant's attending physician indicated that the claimant could work eight hours per day with certain restrictions.

The RC conducted an initial interview with the claimant. The claimant was referred for psychological and functional capacities evaluation. The RC then performed a private-sector labor market survey, and identified several jobs which were available and appropriate for the claimant. She provided descriptions of these jobs and three jobs which were available at the employing agency to the claimant's attending physician, and asked that he state whether they were compatible with the claimant's residual disability. The physician approved the jobs of video clerk, delivery driver, cab driver, telemarketer, cashier, food aid, sewing machine operator, surveillance, and light-duty clerk.

In the meanwhile, the claimant and the RC had discussed vocational training. The RC gave the claimant the address of an agency which could provide training, and told the claimant that testing required by the agency could be waived because of the testing already done by the Office.

The claimant advised the RC that the existing job opportunities available to him would not provide him or his family adequate security. The RC informed the Office that the claimant felt he was unable to work eight hours per day and was seeking treatment from another physician. When informed that the RC was continuing to look for job or training activities based upon the attending physician's reports, the claimant responded, "I am unable to engage in any job development activities or training opportunities."

On February 1, 1993, the Office advised the claimant of the provisions of 5 U.S.C. 8113(b) and 20 C.F.R. 10.124(f) regarding failure or refusal to participate in vocational rehabilitation. The claimant was given 30 days within which to make contact and make a good faith effort to participate in the rehabilitation effort, or to provide his reasons for non-compliance. He was informed that failure to comply would result in reduction of his compensation.

On February 24 the claimant restated that he was not able to participate in the rehabilitation program, that the medical evidence was now nearly one year old, and that the Social Security Administration (SSA) had found him totally disabled. He requested authorization to be treated by another physician.

The RC had sent the claimant an Individual Placement Plan (IPP) on February 12 for his signature. The claimant did not sign or return it. On March 1 the Office informed the claimant that SSA benefits did not determine his disability status under the FECA, and that he was compelled to cooperate with the rehabilitation effort, or face the consequences which were explained in the earlier letter. When the claimant did not subsequently cooperate with the RC or sign the IPP, the Office reduced the claimant's monetary compensation to zero effective July 9, 1993, on the grounds that he had failed to cooperate with the rehabilitation effort.

The claimant requested a hearing, after which an Office hearing representative affirmed the district office's decision. The claimant then appealed the decision. The Board found that the Office had improperly reduced the claimant's monetary compensation to zero.

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 96-02

January 29, 1996

SUBJECT: Increases in the Reimbursement Rate for OWCP Contract Field Nurses

Using the Division of Federal Employees' Compensation (FEC) experience, outside data, and taking into account geographical differences in the cost of medical services, we have updated the maximum allowable rate for field nurses' services. Effective immediately rates will be: $65.00/hr. for professional services, $32.00/hr. for administrative services. The maximum per case is increased to $4,000 to reflect these increases.

At present, field nurses' cost may be reviewed by accessing the on-line payment history on the Query or Bill Pay Menu in the Medical Bill Processing System (MBPS). The inquiry must include the case file number as well as the nurse's or company's tax I.D. number.

Additionally, we are currently working on a prior-authorization mechanism that will monitor the field nurse's time and money limits in an automated fashion.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Distribution: List No. 2--Folioviews Groups A, B, and D
(Claims Examiners, All Supervisors, District Medical Advisers, Fiscal and Bill Pay Personnel, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 96-03

February 20, 1996

SUBJECT: Current Interest Rates for Prompt Payment Bills and Debt Collection

The interest rate to be assessed for the prompt payment bills is 5 7/8 percent for the period January 1, 1996 through June 30, 1996.

Attached to this Circular is an updated listing of the prompt payment interest rates from January 1, 1985 through current date.

The rate for assessing interest charges on debts due the Government has not changed. The rate of 5 percent continues to be in effect for the period January 1, 1996 through December 31, 1996 (or until further notified). The Debt Management System will apply this rate to all debts moving into FD status after January 1, 1996.

Attached to this Circular is an updated listing of the DMS Interest Rates from January 1, 1984 through current date.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Attachments

Distribution: List No. 2 (Claims Examiners, All Supervisors, Systems Managers, District Medical Advisors, Technical Assistants, Rehabilitation Specialists, and Fiscal and Bill Pay Personnel)

PROMPT PAYMENT INTEREST RATES
Dates	Rates
1/1/96 - 6/30/96	5 7/8%
7/1/95 - 12/31/95	6 3/8%
1/1/95 - 6/30/95	8 1/8%
7/1/94 - 12/31/94	7.0%
1/1/94 - 6/30/94	5 1/2%
7/1/93 - 12/31/93	5 5/8%
1/1/93 - 6/30/93	6 1/2%
7/1/92 - 12/31/92	7.0%
1/1/92 - 6/30/92	6 7/8%
7/1/91 - 12/31/91	8 1/2%
1/1/91 - 6/30/91	8 3/8%
7/1/90 - 12/31/90	9.0%
1/1/90 - 6/30/90	8 1/2%
7/1/89 - 12/31/89	9 1/8%
1/1/89 - 6/30/89	9 3/4%
7/1/88 - 12/31/88	9 1/4%
1/1/88 - 6/30/88	9 3/8%
7/1/87 - 12/31/87	8 7/8%
1/1/87 - 6/30/87	7 5/8%
7/1/86 - 12/31/86	8 1/2%
1/1/86 - 6/30/86	9 3/4%
7/1/85 - 12/31/85	10 3/8%
1/1/85 - 6/30/85	12 1/8%

DMS INTEREST RATES
Dates	Rates
1/1/96 - 12/31/96	5%
7/1/95 - 12/31/95	5%
1/1/95 - 06/30/95	3%
1/1/94 - 12/31/94	3%
1/1/93 - 12/31/93	4%
1/1/92 - 12/31/92	6%
1/1/91 - 12/31/91	8%
1/1/90 - 12/31/90	9%
1/1/89 - 12/31/89	7%
1/1/88 - 12/31/88	6%
1/1/87 - 12/31/87	7%
1/1/86 - 12/31/86	8%
1/1/85 - 12/31/85	9%
Prior to 1/1/84	not applicable

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 96-04

June 10, 1996

SUBJECT: SELECTED ECAB DECISIONS FOR OCTOBER - DECEMBER 1995

The attached group of summaries of selected ECAB decisions is provided for study and filing by subject.

Summaries for several decisions which involve performance of duty/compensable factors of employment are included. There are also a number of summaries for schedule award decisions and overpayments. Other subjects include loss of wage-earning capacity determinations, attorney's fees, housing modifications, authorization for an adjustable bed, and suspension of benefits under 5 U.S.C. 8123(d).

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Distribution: List No. 1--Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)

ATTORNEY'S FEES - ABUSE OF DISCRETION

Cecilia Kalinski, widow of Alex J. Kalinski, Docket No. 94-518, Issued October 23, 1995

In this case, the Office reduced an attorney's fee in the amount of $15,000 for work performed from December 29, 1989 to June 10, 1993 to $4,950. The basis for the reduction was that the attorney's services from December 29, 1989 through July 29, 1992 were in pursuit of a medical negligence claim against the employer's medical clinic and a Federal Tort Claim, and that assistance on the workers' compensation claim did not begin until February 3, 1992.

The Board pointed out that they do not have the authority to determine an appropriate fee for services before the Office, but that their role is to determine whether there has been an abuse of discretion. The Office's regulations at 20 C.F.R. 10.145 state:

(e) In considering any request for such a fee, the Office will not recognize such items as:

(1) Work performed before any other State or Federal agency or court including the Employees' Compensation Appeals Board, and any State or Federal Court.

The attorney contended that the early medical and legal investigation performed by his office formed the basis for the FECA claim.

The Board found that the early work performed on behalf of the widow and the estate was ultimately in furtherance of the FECA claim, and therefore remanded the case for approval of an appropriate fee for legal services during the period from December 29, 1989 through November 22, 1990.

DEVELOPMENT OF EVIDENCE

Dorothy A. Rimbold, Docket No. 93-2128, Issued October 20, 1995

In this decision, the Board once again reiterated the principle that the Office shares in the responsibility for development of a case.

The claimant was an aircraft mechanical parts worker who filed an occupational disease claim for "multiple chemical sensitivity." Medical evidence from several physicians supported that she suffered several allergic reactions due to various exposures at work. The Office denied the claim, finding that fact of injury had not been established, and that there was insufficient or conflicting evidence regarding the claimed exposures.

The Board remanded the case for additional development. They found that the employing agency had provided a list of chemicals to which the claimant was exposed while at work, and that at least one other exposure was also documented in the file. They stated that proceedings under the Act are not adversarial in nature, and that while the claimant has the burden of establishing the merits of the claim, the Office shares responsibility for developing the evidence, and has an obligation to see that justice is done. The Office was directed to prepare a comprehensive statement of accepted facts, detailing the exposures, and refer claimant for evaluation by an appropriate medical specialist.

HOUSING MODIFICATIONS

Janice Kirby, Docket No. 95-610, Issued December 5, 1995

In this interesting housing modifications decision, the Board affirmed the Office's decision to authorize $60,597.00 in reimbursement for housing modifications.

The claimant sustained severe injuries in a vehicle accident, which resulted in brain damage and left hemiparesis. The claimant was married, but her husband was seeking a divorce. The claimant's parents were willing to provide her with a home, but extensive modifications were needed to the home because the claimant was wheelchair dependent. The parents decided to build a new home rather than modify the existing home. They obtained estimates which showed that the cost of modifying the existing home would be $175,967.00, and that the claimant's portion of the cost of a new home would be $164,000.00.

The claimant and her husband were joint owners of a house worth approximately $175,000.00, according to an appraiser. The Office issued a decision in which they stated that the preinjury value of the claimant's home ($175,000.00) exceeded the value of the new construction, and that the Office would therefore only pay for modifications to the new home which were required to accommodate the claimant's work-related injury. The Office approved payment for designs and plans, a garage door with opener, separate heating, ventilation and air conditioning, special cabinets for the kitchen and bathroom, access ramps, special bath fixtures, a medical alarm and intercom system, and ramp safety railings, a total of $33,450.00.

A hearing was requested. Additional information was submitted by an attorney which showed that the total equity in the claimant's house was $100,000.00, with half of that, or $50,000.00, being the claimant's share. The attorney argued that the Office should pay for the claimant's share of the cost of construction of the new house, less her share of the equity in the old house. This would be $157,800.00 (a new figure based on the actual construction cost) less the $50,000.00 equity, or $107,000.00. The hearing representative noted that under Office procedures, OWCP was responsible only for the modifications to the new purchase or to the plans for the new house which were necessitated by the work injury and not the cost to actually build the house. The hearing representative approved an additional $27,147.00 in reimbursable construction expenses for flooring, doors, an asphalt driveway, and the parent's share of the flooring, doors, asphalt driveway, and the medical alarm and intercom systems (since it was reasonable to allow the claimant access to the rest of the house).

The Board found that the Office did not abuse its discretion in paying only for modifications to the new house. The parents' old house could have been modified to accommodate the claimant. They chose to build a new house for personal and financial reasons, not because of the inability of the old house to withstand modifications. The claimant's equity in her former house and its application to the cost of the new construction was irrelevant. The Office properly limited reimbursement to those items needed to accommodate the claimant's injury-related condition.

LOSS OF WAGE-EARNING CAPACITY - ACTUAL EARNINGS

Lawrence D. Price, Docket No. 93-2007, Issued October 4, 1995

In this case the claimant, a forestry technician, returned to work in a temporary six-month clerical position at the same grade and step as on date of injury. A completed Form CA-816 with "No LWEC" written across it was placed in the file, and the claimant was informed, "Since your current employment does not reflect an actual loss of wages from your preinjury job, you are not entitled to any compensable monetary difference based upon your actual earnings."

The Board found that the Office had properly reduced the claimant's compensation to zero based on the actual earnings, but that the decision did not constitute a formal wage-earning capacity determination pursuant to 5 U.S.C. 8115 because the claimant's capacity to earn wages was not discussed, and there was no attempt to determine if the actual wages "fairly and reasonably" represented his wage-earning capacity. The reduction of compensation, therefore, could only continue as long as the claimant had the actual earnings.

LOSS OF WAGE-EARNING CAPACITY - CONSTRUCTED RATING

Barbara Silvers, Docket No. 94-1007, Issued December 7, 1995

This case had been accepted for aggravation of cervical and lumbar spine strain, and herniated disc at L4-5. The claimant was a former nurse, and was placed in a vocational rehabilitation program. She was enrolled in a pain management program in June, 1991. In September of 1991, a physician at the pain management program stated that the claimant was capable of performing the functional demands of a nursing administrator, that she was capable of a part-time sedentary job, and that she had the potential to increase her capacity to a full-time sedentary job. The same physician completed a work restriction evaluation form on October 21, 1992, indicating that the claimant could work five hours per day, with restrictions, and that she could work eight hours per day on March 1, 1992.

The rehabilitation specialist obtained information on the sedentary position of "nurse consultant," and stated that it was compatible with the claimant's past work history, skills, and training, was being performed in sufficient numbers as to be reasonably available, and had a weekly wage of $596.00. On December 7, 1992, the Office issued a notice of proposed reduction of compensation based on the claimant's capacity to earn wages as a nurse consultant.

The claimant responded on December 30, 1992 that, among other things, part-time work would be more appropriate. A medical report dated January 6, 1993 was submitted, which described current findings, and included a completed work restriction evaluation showing that the claimant could work only four hours per day. The Office proceeded to finalize the proposed reduction by compensation order dated January 14, 1993.

The claimant requested a hearing, during which she testified that she had been working part-time for a pharmaceutical corporation since February of 1993. She also submitted a report from her treating physician which showed that she could work only four hours per day. The hearing representative affirmed the district office's decision.

The Board found that the Office did not properly determine the claimant's wage-earning capacity. The reduction was based on the claimant's alleged ability to work an eight-hour day. The pain management physician stated that the claimant was able to work only part-time, but had the potential to increase her capacity to eight hours. It was not clear from the record whether the October 1992 work restriction evaluation form (which showed eight hours per day work capacity) was based on the previous projected capacity, or upon an actual examination. In addition, subsequent reports which were based upon actual examinations showed only a part-time capacity for work. The Office therefore did not meet its burden of proof to establish that the claimant could perform nurse consultant duties eight hours per day, and the decision was reversed.

MEDICAL BENEFITS - ADJUSTABLE BED

Lillie P. Gross, Docket No. 94-189, Issued October 24, 1995

The claimant in this case was receiving total disability benefits for a herniated disc L4-5 and a laminectomy. The Office received a request for authorization of a Craftmatic adjustable bed, and asked the attending physician to describe the equipment needed to treat the accepted back condition, to provide an opinion as to the effect of the automatic bed, and to state whether the bed was likely to cure, reduce the degree or period of disability or aid in lessening the amount of monthly compensation. The physician replied that the claimant had asked for the bed for her back pain and recurrent deep vein thrombosis, and that he was documenting that the claimant had these conditions.

The Office advised the claimant that the adjustable bed could not be authorized because her physician indicated that she had requested the bed, and the physician did not answer questions they had posed concerning the bed. They also noted that the deep vein thrombosis was not work-related, and that the physician who sent in the request was not treating her back condition.

The claimant's attending orthopedic physician subsequently prescribed the adjustable bed, and stated that it was needed to decrease pain of diagnosed fibromyositis, leg radiculitis, recurrent vein thrombosis, levator scapula syndrome, thoracic outlet syndrome, nerve peroneal irritation, ulnar nerve compression, and spine muscle deconditioning.

The Office denied the claim for the adjustable bed by compensation order, stating that the evidence failed to establish that the bed was medically necessary due to the accepted employment injury. The claimant requested reconsideration, and submitted a report from her orthopedist that stated that he considered the bed to be a medical luxury and not a necessity. The Office denied modification of the prior decision.

The Board affirmed the Office's decisions, and stated that there was no medical evidence that the bed was likely to cure, give relief, reduce the degree or period of disability, or aid in lessening the amount of monthly compensation.

OVERPAYMENT - FINDINGS OF FAULT FOR PAYMENTS RECEIVED AFTER A RETURN TO DUTY

Bobbie G. Brown, Docket No. 94-934, Issued November 21, 1995

An overpayment was created in this case when the claimant returned to work on August 11, 1992, but continued to receive compensation through September 19, 1992 (two checks). A letter had been issued to the claimant on July 1, 1992, stating that he would receive periodic roll payments every four weeks, and that the first regular payment would cover the period June 28 through July 25, 1992. He was also advised to notify the office immediately if he returned to work, to avoid an overpayment.

The Office found that the claimant was with fault in the creation of the overpayment because he had been instructed to return checks received after a return to duty. The claimant requested a hearing, and testified at the hearing that he wasn't certain whether he had received the checks, but that if he had, he had cashed them, and that he thought there was a period of time for which he had still not received compensation (the initial payments were delayed). He requested copies of the checks which comprised the overpayment. The hearing representative affirmed that the claimant was with fault because he accepted compensation payments after he returned to work.

The Board found that the Office had improperly determined that the claimant was not without fault in the creation of the overpayment for the period August 11 through 22, 1992 (this is the portion of the first check received after he returned to work which included a period of time during which he worked and received wages). They reiterated the principle that there must be reviewable evidence of record which establishes that the claimant was advised by the Office at the time the check was received that the check included compensation to which he was not entitled. The record must contain copies of the compensation checks or other documentation which puts the claimant on notice. In this case, the August 22 check was payment for the period July 26 to August 22, 1992. The claimant was entitled to receive compensation benefits until August 11, 1992. He also testified during the hearing that he believed he was entitled to additional compensation for a previous period of time. The Office should have obtained a copy of the check, or other documentation showing that the claimant was informed of the period of time covered by the August 22, 1992 check. The Board found that the claimant was with fault with respect to the portion of the overpayment attributable to the September 19, 1992 check, which covered the period from August 23 to September 19, 1992, because he had returned to work on August 11, 1992, and should have known that he was not entitled to this second check.

OVERPAYMENT - FINDINGS OF FAULT WHEN DIRECT DEPOSIT IS INVOLVED

William G. Frink, Docket No. 94-736, Issued December 15, 1995

An overpayment was created in this case when the claimant returned to work with no loss of wage-earning capacity on June 1, 1993, but was paid compensation for total disability through July 24, 1993. The Office made a preliminary determination that the claimant was with fault in the creation of the overpayment because he accepted a payment he knew or should have known was incorrect. The Office found that he knew or should have known that he was not entitled to compensation after returning to full-time work, and that the period for which compensation was being paid was on the compensation check he received. The claimant responded that he had been told that he would get a letter telling him that his payments were reduced, but that he never received such a letter, and he assumed that everything was okay.

The Board found that the claimant was without fault in the creation of the overpayment because he did not physically receive the checks in question - they were deposited directly into his checking account. There was no documentation that he knew what periods of time were covered by these deposits into his account, nor was there any indication that he had been put on notice that he was being paid incorrectly for a period of time during which he worked.

PERFORMANCE OF DUTY - COMPENSABLE FACTORS OF EMPLOYMENT

Martha L. Cook, Docket No. 95-429, Issued December 6, 1995

The claimant in this case alleged that her emotional condition was caused by harassment by management. The claim was denied on the basis that the claimant had not substantiated any compensable factors of employment. Various grievances filed by the claimant had been settled without a finding of fault, and an Equal Employment Opportunity Commission (EEOC) claim had not been resolved.

The claimant requested reconsideration and submitted additional evidence, including statements from a former supervisor describing the harassment to which the claimant had been subjected. The Office denied modification of the prior decision, and indicated that the claimant had alleged factors which could be compensable if supported by a factfinding agency.

The claimant again requested reconsideration, and submitted a copy of testimony from an EEOC hearing. The presiding administrative judge had made a recommendation that the claimant be awarded compensatory damages, and that the claimant had been harmed by the ongoing and continuous harassment from her supervisors. The employing agency rejected the administrative judge's recommendations by formal decision dated September 2, 1994, and notified the Office of that decision by letter dated September 6, 1994. Meanwhile, also on September 6, 1994, the Office accepted the claim for an emotional condition, based upon the administrative law judge's earlier decision.

On September 12, 1994, the Office rescinded the previous acceptance, noting that the final EEOC decision was with the employing agency, who had found no discrimination.

The Board found that rescinding the acceptance was improper. They stated that a final decision by an employing agency in an EEOC claim that no harassment existed does not, in and of itself, establish error in the original acceptance by the Office. The issue is not whether the claimant has established harassment under EEOC standards, but whether an injury under the Federal Employees' Compensation Act has been established. The Office must exercise its adjudicatory function and make a findings of fact with respect to the allegations of the claimant. The Office did not make independent findings with respect to the claimant's allegations in this case, but rather, made general reference to the final decision of the employing agency in the EEOC claim. While the Office may look to an EEOC claim for evidence in making a determination, the Office must make an independent determination. A claimant need not have a final EEOC decision upholding harassment to establish a claim for benefits under the FECA. Since the Office did not meet its burden of proof to rescind the acceptance of the claim, the Office's decision was reversed.

PERFORMANCE OF DUTY - COMPENSABLE FACTORS OF EMPLOYMENT

Thomas D. Petty, Docket No. 94-507, Issued October 6, 1995

In this decision, which involves a psychiatric condition allegedly due to a job reassignment, the Board remanded the case for further development.

The claimant was reassigned to a job at a lower grade level, and was required to undergo training to prepare for the new position. The claimant, who was of dull normal intelligence, expressed reservations about his ability to cope with the required training. He participated in the training for a short period of time, then dropped out due to stress, depression and a nervous breakdown. He did not return to work and was subsequently terminated by his employer.

The district office denied his claim for benefits, finding that fact of injury was not established. They found that the claimant's reaction to his reassignment, training, and the fear of losing his job were self-generated and therefore not compensable.

In remanding the case, the Board stated that an employee's reaction to being reassigned for training results from an employee's job security or frustration at not being allowed to hold a particular position and is not compensable. In this case, however, the claimant also attributed his condition to the actual training and testing he encountered and was required to undergo. Since the training was a requirement imposed by the employer, it became a specially assigned work duty, and would therefore be a compensable employment factor.

PERFORMANCE OF DUTY - COMPENSABLE FACTORS OF EMPLOYMENT - FITNESS FOR DUTY EXAMINATIONS

David L. Yunt, Docket No. 94-50, Issued November 7, 1995

This decision, which involved a claim for an employment-related emotional condition, contains discussion as to whether the employer's requirement that the claimant undergo a psychiatric fitness-for-duty examination would be a compensable factor of employment. Two opposing positions were cited in the decision. The first was the decision in Margaret M. Boyle, 13 ECAB 172, in which the employee was required to undergo a psychiatric fitness-for-duty examination because of her bizarre and eccentric behavior at work and an unsatisfactory leave record. The examination resulted in the employee being separated, and her claim was for the mental anguish caused by being separated. In this instance, the Board found that the claimant attributed her emotional condition to her fear of the loss of her position, and not to her regular or specially assigned duties or to a requirement imposed by the employer, and therefore her condition was not compensable. In another case, that of Raymond H. Schulz, 23 ECAB 25, the Board found that the requirement that the employee undergo a psychiatric fitness-for-duty examination was a compensable factor of employment, because the decision to require the examination arose out of his correspondence with a coworker, correspondence that originated in his work activities and was related to the work he was hired to perform.

In the Yunt case, the Board found that the reason for the psychiatric fitness-for-duty examination was vague. The record reflects that the claimant was told that he had said something threatening to his supervisors, but the context of the incidents was unclear, and the Board was unable to determine whether there was a connection to the employment duties. However, since there was no medical evidence supporting a causal relationship between the required examination and the claimant's medical condition, the Office's decision was affirmed.

RESCINDING DECISIONS - OFFICE'S BURDEN OF PROOF

Barbara D. Davis, Docket No. 95-725, Issued October 5, 1995

The claimant in this case, a rural route carrier, injured her right knee in 1968. The Office authorized meniscectomy and patellectomy of the knee. After being paid compensation for various periods of disability, the claimant was re-employed in a modified light duty position in 1982 with no loss of pay. In August 1984 she was terminated by her employer for attempted mail theft. The Office reinstated benefits for total disability effective the date of termination.

The claimant's attending physician, a Board-certified orthopedic surgeon, continued to treat the claimant and submitted yearly reports. In 1985 his report indicated that the claimant was able to work only four hours per day. In 1986 he stated that she could work eight hours per day, with restrictions. In 1987, he stated that the claimant had increasing difficulty due to progressive development of arthritis in the knee and could work only four hours per day. In 1988 and 1989, he continued to state that she could work only four hours per day. In 1990 he stated that she could work eight hours per day in a completely sedentary position. In 1991 he reiterated that she could work in a completely sedentary position only, for an unspecified number of hours.

On November 13, 1991, the Office issued a notice of proposed termination of compensation effective August 1984, on the basis that compensation was paid 1984 and continuing due the employer's having rescinded a light duty job offer, when the evidence of record established that she was terminated due to a criminal offense. The Office found that the claimant's condition had not changed materially since 1982, when her physician found her able to perform full-time limited duty. The proposed termination was finalized in December of 1991.

The claimant requested a hearing and submitted a report from her physician which stated, "it is felt that the patient's condition is worsening. It is felt that she certainly has no improvement and she is just as disabled as she was in 1988 when it was determined that she was unable to work." The hearing representative found that the medical evidence supported that the claimant was able to perform the light duty job until 1990, when her physician restricted her to sedentary duty only. The Office decision regarding entitlement from August 1984 until 1990 was affirmed, and the Office was directed to further develop entitlement from 1990 forward.

The Office then declared an overpayment for the period from August 1984 through 1991 (when benefits had been terminated) of $183,806.45. Two days later, the overpayment decision was rescinded pending a determination concerning entitlement from 1990 until 1991. A second opinion evaluation was obtained, in which the claimant was found to be totally disabled. Compensation for total disability was reinstated as of February 23, 1993. An overpayment of $113,838.25 was declared for the period from August 1984 through 1990. The claimant requested and received a hearing, and the hearing representative affirmed the district office decision.

The Board found that the office had not met its burden of proof to establish that the claimant was not disabled during the period from August of 1984 through 1990, for which it rescinded acceptance of the claim. The medical evidence only supported an ability to work four hours per day for certain periods of time, and seemed to indicate total disability as of 1988. The Office's decision was reversed.

When rescinding prior acceptances, care must be taken that the weight of the evidence supports the decision being made by the Office.

SCHEDULE AWARD - APPLICATION OF AMA GUIDES

Elizabeth R. Ryan, Docket No. 94-1023, Issued November 21, 1995

This decision is yet another illustration of the care which should be taken in assigning a percentage of permanent impairment of a schedule member.

The claimant had a left knee injury. Her physician submitted a report which described findings and stated that the claimant had 39 percent impairment of the leg. An Office medical advisor reviewed the report, and through application of the AMA Guides, concluded that the claimant had a 28 percent impairment of the leg. The Office awarded 28 percent impairment of the left leg, and the claimant requested a hearing. The hearing representative remanded the case for additional review by the medical advisor, using the third edition of the AMA Guides. The medical advisor concluded that the 28 percent impairment was accurate, and the Office again found that the claimant had a 28 percent impairment.

The claimant again requested a hearing, and submitted another report from her physician which stated that the claimant had 35 percent impairment of the leg. The claimant then withdrew her request for a hearing, because the claimant's physician was requesting additional surgery. The surgery was authorized by the Office. After the surgery and subsequent recovery, the claimant submitted a report from another physician, which related findings, assigned 29 percent impairment of the left leg based on the AMA Guide, and stated that this impairment was separate and not related to the previous estimate of the prior physician.

An Office medical advisor reviewed the case and concluded that there was 30 percent impairment of the leg. The Office made an award for an additional 2 percent impairment. The Board found that the case was not in posture for a decision, because the medical advisor had used an incorrect table when assigning impairment due to pain, and had not addressed impairment due to loss of strength, in spite of findings of quadriceps atrophy and loss of strength.

SCHEDULE AWARD - PROGRAM MEMORANDUM NO. 134

Camille M. Brown, Docket No. 94-735, Issued November 22, 1995

The claimant in this decision had sustained a crush injury to the foot, and developed Morton's neuromas in the third and fourth web spaces of the left foot, which were accepted by the Office. The neuromas were surgically excised. The claimant claimed a schedule award and stated that he experienced pain and numbness in his left forefoot, total loss of use and feeling of the three smallest toes, and only 25 percent of the normal bending in the other two toes. The Office requested the attending physician to evaluate the claimant's impairment of the foot based upon the AMA Guides. The physician submitted a report which gave degrees of dorsiflexion, plantar flexion, inversion and eversion of the left foot, and stated that the claimant had no additional impairment of the foot due to weakness, atrophy, paid or anesthesia. An Office Medical Advisor reviewed the case, and based on the attending physician's report and the AMA Guides, stated that there was five percent impairment of the foot. The Office made an award for five percent impairment of the foot.

The claimant requested reconsideration and stated that he should receive a greater award based on the cumulative impairment of his toes. The application for review was denied on the basis that the claimant did not submit new evidence or legal arguments.

The Board found that the case was not in posture for a decision. The schedule award had been based upon an evaluation of the hind portion of the foot, whereas the accepted condition had affected the forefoot and toes. They pointed out the Program Memorandum No. 134 provides that where the cumulative allowances for the digits of a hand or foot is greater than the value of the percentage loss of the hand or foot, the claimant should have the benefit of the more favorable award. In this case, the impairment of the toes had not been assessed, and so it was not possible to determine whether an award based on the toes would be more favorable to the claimant. The case was remanded for development of this issue.

SCHEDULE AWARD - PROGRAM MEMORANDUM NO. 181

David Wharton, Docket No. 94-1242, Issued December 15, 1995

This decision involves a schedule award for hearing loss. The claimant was issued a schedule award for one percent work-related binaural hearing loss, based on the report of a Board-certified otolaryngologist to whom the Office had referred him, and an Office medical advisor review. The Board agreed that the claimant had no more than a one percent loss of binaural hearing. This was based upon zero percent loss for the right ear, and 3.75 percent loss for the left ear. The combined loss, using the appropriate formula, was .625 percent binaural loss, which rounds up to one percent. However, if an award were made for the left ear loss only, it would be for 4 percent monaural loss, which comes out to 2.08 weeks of compensation (4 percent of 52 weeks), as opposed to the 2 weeks (1 percent times 200 weeks) of compensation awarded. According to Program Memorandum No. 181, if the allowances for each ear computed separately is greater than the allowance for monaural loss, the claimant is to be awarded the more favorable allowance. The Board remanded the case for a redetermination with regard to the number of weeks for which the schedule award was payable.

SCHEDULE AWARD - PROVIDING ATTENDING PHYSICIAN WITH SUFFICIENT INFORMATION TO DETERMINE IMPAIRMENT

Stuart Small, Docket No. 94-1038, Issued November 14, 1995

The claimant in this case sustained a right knee injury. The Office accepted that the work injury resulted in a tear of the anterior cruciate ligament. The Office requested the attending physician to provide a report for schedule award purposes, using the AMA Guides. The physician reported that the claimant had lost 10 degrees of extension, had a 5 percent decrease in strength, and a 10 percent decrease in the circumference of his thigh. He indicated that the impairment of the leg was 1 percent for the extension loss and 15 percent for the loss of the anterior cruciate ligament, for a total of 16 percent. He also stated, "I am not aware that subjective complaints contribute toward an impairment rating...he has major discomfort following a major ligamentous reconstruction. If subjective complaints are part of the impairment rating, please advise me."

An Office Medical Advisor reviewed the case and concluded that there was 21 percent impairment: 1 percent for loss of extension, 2 percent for pain, 15 percent for loss of the anterior cruciate ligament, and 3 percent for loss of strength. The percentages for pain and loss of strength were derived from various tables in the AMA Guides. The Office issued a schedule award for 21 percent impairment of the leg. The Board found that the case was not in posture for a decision.

The attending physician had asked for assistance in rating the permanent impairment due to pain and loss of strength. The Office did not advise the physician further, but rather, had the Office medical advisor review the case. The medical advisor had not referenced the attending physician's findings sufficiently when using the grading schemes and tables in the AMA Guides. The Board therefore remanded the case so that the attending physician could be advised of the appropriate tables for rating pain and loss of strength, and to obtain measurements for loss of flexion.

SUSPENSION OF BENEFITS UNDER 5 U.S.C. 8123(d)

Tippu Deckard, Docket No. 94-319, Issued October 23, 1995

The claimant in this case was off from work for a period of time due to accepted conditions of multiple contusions, shoulder sprain, and right lateral epicondylitis. By letter dated February 3, 1993, the Office asked the attending orthopedic surgeon, Dr. Chein, when the claimant would be able to return to full or restricted duty. In a report dated February 21, 1993, Dr. Chein stated that the claimant could return to restricted duty four hours per day as of that date. On March 22, 1993, the Office referred the claimant for second opinion evaluation on April 19, 1993. By letter dated April 9, 1993, Dr. Chein stated that the claimant could return to light duty for eight hours per day on April 4, and that after a month, his ability to return to full duty would be evaluated.

The claimant returned to limited duty on April 5, but failed to keep the April 19 second opinion appointment. On May 5 the Office advised the claimant of the provisions of 5 U.S.C. 8123(d), that if he refused to submit to or obstructed an examination, his right to compensation would be suspended until the refusal or obstruction stopped. He was asked to provide a written explanation of why he failed to keep the appointment.

The claimant responded that he had completely forgotten about the appointment after he had returned to work. He stated that he was still willing to undergo examination whenever possible. On June 10 an Office claims examiner left a message on the claimant's telephone answering machine that he should reschedule the appointment with the second opinion physician. On June 16 Dr. Chein released the claimant for full duties.

On approximately August 17 the claims examiner telephoned the second opinion physician's office and found that the claimant had not rescheduled the appointment. The claims examiner also tried to contact the claimant at work, but was told that the claimant was no longer working there.

On August 31, the Office issued a decision suspending compensation benefits due to obstruction of the medical evaluation.

The Board reversed the decision. They found that the Office had not followed its own procedures by leaving a message on the claimant's answering machine concerning the second appointment (rather than speaking with the claimant directly or writing a letter), and by not allowing the claimant the opportunity to present a written explanation as to why he failed to make a second appointment.

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 96-05

July 9, 1996

SUBJECT: Selected ECAB Decisions for July-September 1995

These decisions cover a variety of issues including use of Office guidelines in the development of medical evidence; refusal of suitable work; an employee's physical ability to perform a selected job; obstruction of medical examination; and the mailbox rule.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Loss of Wage Earning Capacity - Refusal of Suitable Work

Earnestine Rowe, Docket No. 94-1850, Issued July 6, 1995

In this case, the Board ruled that the Office could not find that appellant refused suitable work by resigning her position before she filed her claim for injury.

On May 11, 1992 appellant filed a notice of occupational disease and claim for compensation alleging that she sustained an intractable plantar keratosis of the right foot causally related to factors of her federal employment. Appellant stopped work on December 11, 1991 and resigned effective March 2, 1992. Appellant's personnel record contained a statement regarding her resignation which indicated that, due to health problems with her foot, she was unable to perform the daily duties of her job at the present time.

Appellant received compensation benefits from December 31, 1991 through March 1, 1992. She was released to limited duty effective March 16, 1992. The employing establishment advised that it did have a mandatory light-duty policy, and that appellant took it upon herself to resign.

In January, 1994, appellant filed a notice of recurrence of disability beginning in December, 1992. The Office denied her claim for compensation after March 2, 1992, finding that she refused to seek suitable work under section 8106 of the Act by voluntarily resigning on March 2, 1992, and that she was not entitled to compensation after that date. In a subsequent reconsideration request, appellant contended that she had not received any offer of light-duty work prior to the date she resigned.

The Board found that the Office improperly invoked the penalty provision of 5 USC 8106(c). In order to do so, the Office must establish that a claimant refused an offer of suitable work. At the time she resigned, appellant's claim had not been accepted by the Office and no offer of suitable work had been provided by the agency. While she may have "jumped the gun" by resigning, her action cannot be characterized as a refusal of an offer of suitable work which presupposes that an offer has been made.

Reconsideration - Mailbox Rule

Michael W. Hardin, Docket No. 94-376, Issued July 14, 1995

By decision dated November 29, 1990, the Office denied appellant's claim for recurrent back disability, finding that the accepted injury had aggravated a pre-existing condition that resolved by November 24, 1986. The Office did a merit review and by decision of March 21, 1991, denied modification of the November 29, 1990 decision.

On May 11, 1993, the Office received a congressional inquiry with an attached undated letter from appellant referring to a pending request for reconsideration. On June 23, 1993, appellant's attorney called the Office to discuss a previously filed request for reconsideration and was advised that no further request for reconsideration had been received, and that he could resubmit the request. The Office received a letter dated June 23, 1993 which stated that he had previously filed a request for reconsideration on November 22, 1991, evidenced by an attached two page request for additional compensation signed by the attorney and dated November 22, 1991.

The Office denied the request for reconsideration because it was filed more than one year after the March 21, 1991 decision, and that clear evidence of error was not shown.

The Board found that the Office improperly refused to reopen the claim, stating that:

The Board has consistently held that in the absence of evidence to the contrary, it is presumed that a notice mailed in the ordinary course of business was received. This presumption, known as the mailbox rule arises when it appears from the record that the notice was properly addressed and duly mailed. The Board has held that the mailbox rule, which has often worked in favor of the Office, applies equally in favor of a claimant.

The Board accepted the June 23, 1993 statement from the attorney, as an officer of the court, and the attached legal pleading and the signature of the attorney, to be sufficient to raise the presumption that the Office received the November 22, 1991 request for reconsideration within one year of the March 21, 1991 decision.

The Board also found that the Office's refusal to reopen the claim constituted harmless error, since the evidence submitted with the request for reconsideration was cumulative. Thus, even though the Board found the refusal to reopen the claim to be improper, it did not require the Office to reopen the claim because the evidence submitted with the request was insufficient to require a merit review.

Medical Referral - Obstruction

Daniel F. O,Donnell, Docket No. 94-428, Issued July 19, 1995

In this case, the Board found that unreliable hearing test results did not, alone, support a finding that appellant had obstructed a medical examination.

The Office referred appellant to an otolaryngologist for a rationalized opinion on the cause and extent of his hearing loss. Results of two audiometric exams, conducted by different audiologists in separate rooms were considered inconsistent and unreliable. The physician stated his opinion that "hearing is certainly better than audiometric responses furnished to use..." He found that hearing was adequate for conversational purposes, but that hearing testing could not be carried out with reliability.

The DMA stated that the audiograms of record could not be used as a basis for a schedule award.

The Office notified the claimant that his claim was accepted for an employment related hearing loss, and that his right to a schedule award was suspended because he did not adhere to the examination scheduled by the Office, rendering the test results inconsistent and unreliable. The Office concluded that appellant had obstructed the exam scheduled by the Office and suspended his right to compensation under 5 USC 8123(d).

The Board found that the Office improperly determined that appellant obstructed a medical examination. The Office did not state reasons for its conclusion that appellant had obstructed the exam, but apparently based the finding on the fact that the test results were considered inconsistent and unreliable by the otolaryngologist and the DMA. It was therefore unreasonable to make that conclusion and to suspend compensation benefits.

Carpal Tunnel Syndrome - Use of Office Guidelines

Patricia Tompkins, Docket No. 94-702, Issued August 25, 1995

The Office denied appellant's claim for right carpal tunnel syndrome on the basis of the lack of diagnostic studies to demonstrate carpal tunnel syndrome.

In support of a request for reconsideration, reports were submitted showing that both Tinel's sign and Phalen's test were positive, but that EMG or NCV studies had not been performed, because the attending physician did not believe that they were warranted for early carpal tunnel symptoms. The Office denied reconsideration on the basis that the new evidence was insufficient to warrant modification of the previous decision. The Office stated that EMG/NCV tests were needed to establish a diagnosis of carpal tunnel syndrome.

The Board found that the case was not in posture for a decision. It noted that the Office had issued guidelines to be used by claims examiners in determining whether a claimant had demonstrated carpal tunnel syndrome (currently found in Federal [FECA] Procedure Manual Chapter 3-600.8), and that those guidelines listed Phalen's and Tinel's tests, NCV, EMG, and neurological abnormalities as determined by evaluation as appropriate diagnostic tools. In this case, the physician noted neurological abnormalities, as well as positive Phalen's and Tinel's tests. He did not perform EMG or NCV studies, but explained why he did not. The Board found that his reports constituted sufficient evidence to warrant further development by the Office, and remanded the case.

The Office should not be so rigid in following procedures that it neglects to assess the weight of the evidence.

LWEC - Claims Examiner's Responsibility to Determine Whether Appellant Physically Able to Perform Selected Job

Leon Vasquez, Docket No. 94-1219, Issued September 7, 1995

The issue is whether the Office of Workers' Compensation Programs properly determined that the position of an estimator fairly and reasonably represented appellant's wage-earning capacity effective February 6, 1994, the date the Office reduced his compensation.

Appellant's employment-related back condition prevented him from returning to his date of injury job of inspector, and the employing establishment had no positions within his work restrictions. He successfully completed Office-sponsored rehabilitation training as a construction estimator in October 1989. Appellant worked briefly following completion of his training but was too slow to perform the work to the satisfaction of the employer.

In a December 4, 1992 report, appellant's vocational rehabilitation counselor stated that appellant was qualified to work as a construction estimator and that jobs were reasonably available within his commuting area which were medically suitable. The Office reduced appellant's compensation effective February 6, 1994, finding that the medical evidence of record established he was partially disabled and the selected position of estimator fairly and reasonably represented his wage-earning capacity.

The Board found this determination to be improper and reversed the Office's decision, stating:

Although a claims examiner may rely upon a rehabilitation counselor's opinion as to whether a job is reasonably available and vocationally suitable, the claims examiner has the responsibility to determine whether the medical evidence establishes that appellant is able to perform the job, taking into consideration medical conditions due to the accepted work-related injury and any preexisting medical conditions. At the time of the Office's loss of wage-earning capacity determination in this case, there was evidence of record that appellant suffered from chronic, acute low back pain and radiculopathy between April and November 1993. In fact, appellant was hospitalized for, among other things, chronic low back pain syndrome from April 6 to May 21, 1993.

The Office relied upon an August 3, 1992 work restriction evaluation completed by Dr. Waldman, a Board-certified orthopedic surgeon, to determine the suitability of the selected position in this case despite the fact that there was evidence since August 1992 that appellant continued to suffer from acute low back pain and radiculopathy. The Office modified appellant's compensation effective February 6, 1994 without determining whether appellant's acute low back pain and radiculopathy since August 1992 affected his ability to perform duties of the selected position. The medical evidence of record, therefore, does not establish that the duties of an estimator fairly and reasonably represented appellant's wage earning capacity on February 6, 1994 -- the effective date of the Office's loss of wage-earning capacity determination. The Office found that appellant was capable of performing the duties of an estimator without determining whether appellant's chronic, acute low back pain and radiculopathy prevented him from performing the duties of the selected position. Thus, the Board finds that the Office improperly determined that the position of an estimator mechanic fairly and reasonably represented appellant's wage-earning capacity effective February 6, 1994.

When making a determination of an employee's wage-earning capacity, the claims examiner must consider all of the medical evidence of record and may not select that which best supports the final determination to the exclusion of all other pertinent medical evidence.

Loss of Wage-Earning Capacity - Probative Value of Medical Evidence in Modifying LWEC

Rosenaldo Dean, Docket No. 94-424; Issued September 28, 1995

Appellant, a former nursing assistant, was receiving compensation for temporary total disability due to a work-related herniated nucleus pulposis at L5-S1. The Office determined that he could work at the selected position of video store rental clerk and reduced his compensation accordingly. His attending orthopedic surgeon approved of the selected position including the physical demands of 20 pounds maximum lifting as set forth in the Dictionary of Occupational Titles.

Appellant submitted a series of requests for reconsideration all of which were denied on the grounds that the evidence was insufficient to warrant modification. He included with his requests, reports from his attending physician and a physician specializing in occupational medicine, which indicated that he was physically unable to perform the job of video store clerk. A functional capacity assessment indicated that appellant could lift up to 14 pounds occasionally and 12.5 pounds frequently.

The attending physician reported that appellant had an increase in his symptoms of low back and leg pain which prevented him from working as a video store clerk. The occupational medicine specialist stated that, because the lifting capacity for the video clerk position was 20 pounds, and the functional capacity assessment showed an ability to lift 14 pounds, this alone prevented him from doing the job.

Based on a report from a rehabilitation counselor who visited a video store and was told by the assistant manager that lifting never exceeded 10 pounds, the Office found in one of its reconsideration decisions, that the position of video store clerk met appellant's requirement of not lifting more than 14 pounds.

The Board found that the Office properly reduced appellant's compensation to reflect his wage-earning capacity as a video store rental clerk and properly refused to modify its determination. However, the Board pointed out that the denial of modification on the grounds that the selected position was within the lifting restrictions found in the functional capacity evaluation was incorrect. The physical requirements of a selected position contained in the Dictionary of Occupational Titles cannot be modified based on information from a single employer.

With regard to the medical evidence, the Board stated:

The deficiency of the reports from [appellant's physicians] is not the failure to explain how the functional capacity evaluation showed that appellant could not perform the position, but rather it is the failure of each physician to explain how appellant's employment-related condition has changed such that he is no longer able to perform the selected position. A general statement that appellant is unable to perform the selected position is of little probative value in modifying a loss of wage-earning capacity determination without a full explanation as to the contribution from a employment-related condition.

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 96-06

July 9, 1996

SUBJECT: Current Interest Rates for Prompt Payment Bills and Debt Collection

The interest rate to be assessed for the prompt payment bills is 7.0 percent for the period July 1, 1996 through December 31, 1996.

Attached to this Circular is an updated listing of the prompt payment interest rates from January 1, 1985 through current date.

The rate for assessing interest charges on debts due the Government has not changed. The rate of 5 percent continues to be in effect through December 31, 1996.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Attachments

Distribution: List No. 2--Folioviews Groups A, B, and D
(Claims Examiners, All Supervisors, Systems Managers, District Medical Advisors, Technical Assistants, Rehabilitation Specialists, and Fiscal and Bill Pay Personnel)

PROMPT PAYMENT INTEREST RATES
Dates	Rates
7/1/96 - 12/31/96	7.0%
1/1/96 - 6/30/96	5 7/8%
7/1/95 - 12/31/95	6 3/8%
1/1/95 - 6/30/95	8 1/8%
7/1/94 - 12/31/94	7.0%
1/1/94 - 6/30/94	5 1/2%
7/1/93 - 12/31/93	5 5/8%
1/1/93 - 6/30/93	6 1/2%
7/1/92 - 12/31/92	7.0%
1/1/92 - 6/30/92	6 7/8%
7/1/91 - 12/31/91	8 1/2%
1/1/91 - 6/30/91	8 3/8%
7/1/90 - 12/31/90	9.0%
1/1/90 - 6/30/90	8 1/2%
7/1/89 - 12/31/89	9 1/8%
1/1/89 - 6/30/89	9 3/4%
7/1/88 - 12/31/88	9 1/4%
1/1/88 - 6/30/88	9 3/8%
7/1/87 - 12/31/87	8 7/8%
1/1/87 - 6/30/87	7 5/8%
7/1/86 - 12/31/86	8 1/2%
1/1/86 - 6/30/86	9 3/4%
7/1/85 - 12/31/85	10 3/8%
1/1/85 - 6/30/85	12 1/8%

ATTACHMENT TO FECA CIRCULAR NO. 96-06

DMS INTEREST RATES
Dates	Rates
1/1/96 - 12/31/96	5%
7/1/95 - 12/31/95	5%
1/1/95 - 06/30/95	3%
1/1/94 - 12/31/94	3%
1/1/93 - 12/31/93	4%
1/1/92 - 12/31/92	6%
1/1/91 - 12/31/91	8%
1/1/90 - 12/31/90	9%
1/1/89 - 12/31/89	7%
1/1/88 - 12/31/88	6%
1/1/87 - 12/31/87	7%
1/1/86 - 12/31/86	8%
1/1/85 - 12/31/85	9%
Prior to 1/1/84	not applicable

ATTACHMENT TO FECA CIRCULAR NO. 96-06

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 96-07

July 29, 1996

SUBJECT: Computation of Compensation for Rural Letter Carriers

Recent revisions to Chapters 2-900 and 2-901 provide procedures for paying compensation to Rural Letter Carriers. This circular is provided to help resolve some of the questions and confusion regarding various compensation payment issues unique to Rural Letter Carriers. Most of the guidance provided here simply follows principals already outlined in the law and the procedure manual, but covers areas that have been problematic in one document for easy reference.

EVALUATED PAY

As stated in PM 2-900, the salaries for rural carriers are based on the evaluation of their routes. The carrier's grade and step determines their hourly rate of pay. The route may be evaluated at between 36 and 48 hours per week. The hourly pay is multiplied by a formula corresponding to the route evaluation to derive their salary. They are paid the same salary whether they actually work more or less than the route evaluation. Salaries for routes which are evaluated at more than 40 hours per week are not considered to include overtime. They are only paid overtime if they work more than the number of hours established by the contract for overtime for their route. The evaluated pay, therefore, is the pay rate for compensation purposes.

For the sake of illustration, the examples in this circular will calculate hours over 40 hours per week at 1 1/2 times the hourly rate. The actual formula, however, is more complicated than that.

The salary of a rural carrier may vary over the life of the claim due to reevaluations of their route. 5 U.S.C. 8101 states that the pay rate for compensation purposes is the pay rate in effect on the date of injury, the date disability begins, or the date of recurrence, whichever is greater. There is no provision for adjusting compensation benefits because of a pay adjustment that occurs after the injury, where the disability is continuous. If a route is adjusted while an injured employee continues to be totally disabled, their compensation continues based on the date of injury pay rate.

Example: Rural carrier, John Smith, is injured on January 20, 1994, while assigned to a route evaluated at 42 hours. As a grade 10 step 1, His hourly rate of pay is $15.00, which equates to a salary of $645.00 per week for a 42 hour route. He is totally disabled from the date of injury through his return to full duty on July 2, 1995.

On March 15, 1994, his route is reevaluated for 45 hours. His salary is increased to $712.50 accordingly. Then, on December 1, 1994, his route evaluation is reduced to 38 hours, resulting in a decrease in his salary to $570 per week. His compensation continues based on a date of injury pay rate of $645.00 for the entire period through July 1, 1995. Of course he would be entitled to the 3/1/95 CPI increase.

When a route evaluation is reduced while a carrier is disabled, there is no continuing entitlement to compensation after the carrier is fit to return to full duty. The reduced evaluation is not due to injury related disability.

When John Smith returns to full duty on July 2, 1995, there is no continuing entitlement to compensation benefits, even though his salary was reduced while he was disabled.

RECURRENCES

If a rural carrier suffers a recurrence of total disability after returning to full duty, and their rate of pay is lower at the time of the recurrence, their compensation will be based on the date of injury pay rate.

Example: John Smith suffers a recurrence on February 1, 1996. He is now a grade 10, step 3, earning $16.50 per hour. His route is still evaluated at 38 hours, which equates to a salary of $627.00 per week. As this is less than his date of injury pay rate of $645.00, compensation is paid based on the DOI pay rate plus the CPI.

LOSS OF WAGE EARNING CAPACITY

Like all other Federal employees, rural carriers are entitled to any Loss of Wage Earning Capacity (LWEC) when they return to part time or light (limited) duty due to a job related injury. In applying the Shadrick formula, the claims examiner has to determine the "current pay for the job held when injured" (item 2 of the formula). This can be confusing where the rural carrier's route evaluation has changed since the injury.

Route evaluations can increase or decrease because of a mail count, without the geographic boundaries changing. Also, the geographic boundaries can be changed resulting in either an increase or decrease. In order to determine the "current pay for the job held when injured", the claims examiner must ask the Post Office whether the rural carrier's route has been reevaluated since the injury, and if so, whether the geographic boundaries have changed. Then proceed as follows:

If the route boundaries have NOT changed, ask the Post Office to use the current evaluation of the route (number of hours) and the current hourly rate for the grade and step of the carrier when injured to derive the current weekly pay for the job held when injured.

On April 1, 1996, John Smith's route evaluation was changed again to 43 hours. He is still a grade 10, step 3, and his hourly rate of pay is still $16.50. Based on a 43 hour route, his weekly pay is $734.25. John Smith returns to partial duty on 5/1/96. Let's say that the changes described to his route evaluation were all based on mail counts, and the geographic boundaries have not changed.

The pay for a grade 10, step 1 (the grade and step when injured) is $16.00 per hour as of 5/1/96. Ask the USPS to provide the current salary for a grade 10, step 1, working a 43 hour route. This is the "current pay for the job held when injured". It will be approximately $712.00, ( ($16 X 40) + ($24 X 3) ) but remember, the formula is a bit more complicated, so you must get this from the Post Office.

If the route boundaries HAVE changed, the job held when injured no longer exists. Take the current pay for the grade and step when injured multiplied by the number of hours of the route evaluation at the time of injury.

If ANY of the reevaluations of John Smith's route were due to a change in the geographic boundaries, his job when injured no longer exists. Ask the Post Office to provide the current salary for a grade 10, step 1 working a 42 hour route. (It will be approximately $688, but again, you must obtain it from the Post Office.)

Once you have determined the "current pay for the job held when injured", you can proceed to apply the Shadrick formula to compensation payments for partial disability. Use the guidance provided above for the pay rate as of the date of injury, date disability began, or date of recurrence (item 1 of the formula).

Changes in route evaluations which occur after a final LWEC decision is issued do not alter that decision.

RURAL CARRIER ASSOCIATES (RCAs)

The rural letter carrier craft includes many Rural Carrier Associates (RCAs), who are employed irregularly and paid When Actually Employed (WAE). It can be confusing to the RCA that COP and the pay rate for compensation purposes are determined differently.

COP for all WAE employees is determined under 20 CFR 10.205 (c). The average weekly earnings for COP is computed by dividing the total earnings during the year prior by the number of weeks worked during the year.

The pay rate for compensation purposes for all WAEs is determined under 5 U.S.C. 8114, taking the total earnings for the year prior divided by 52. As a result, the pay rate for compensation purposes can be lower than the pay rate for COP.

It is hoped that this guidance will help you resolve most questions regarding computation of pay for rural letter carriers. Any additional questions in this regard should be addressed to Cecile Moran on (202)219-8461, email cmf@fenix2.

Sincerely,

Thomas M. Markey
Director for
Federal Employees' Compensation

Distribution: Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)

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Attention: This circular has been superseded and is inactive.

FECA CIRCULAR NO. 96-08

September 25, 1996

SUBJECT: SELECTED ECAB DECISIONS FOR APRIL - JUNE 1996

The attached group of summaries of selected ECAB decisions is provided for study and filing by subject.

A number of topics are covered, including Form CA-17 as authorization for medical treatment, forfeiture of compensation for failure to report earnings, use of affirmative defense in Peace Corps cases, overpayment findings of fault, performance of duty/compensable employment factors, and sending copies of correspondence to authorized representatives.

THOMAS M. MARKEY
Director for
Federal Employees' Compensation

Distribution: List No. 1--Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Rehabilitation Specialists and Staff Nurses)

AUTHORIZATION FOR MEDICAL TREATMENT - FORM CA-17

John B. Pettersen, Docket No. 94-2133, Issued June 12, 1996

A number of issues were addressed in this decision, but only the matter of Form CA-17 being considered authorization for medical treatment will be discussed in detail in this summary.

The claimant injured his back in the performance of duty. He was treated by a chiropractor, and was also examined by two medical doctors. No Form CA-16 was issued for treatment by the chiropractor, and the file showed no evidence that a CA-16 was issued for treatment by any other practitioner. However, several CA-17 forms were issued to the chiropractor. The Office denied payment of the chiropractor's bills on the basis that he did not qualify as a physician under the FECA, since he did not take x-rays at the time of injury to establish a subluxation. The Board found that the chiropractor should have been considered a physician, because subluxation was found on x-rays taken several months after the injury. They also found that the office should have considered whether the CA-17s issued to the chiropractor were issued under "an emergency" or "unusual circumstances," which would require the Office to exercise its discretion on whether to authorize the chiropractor's treatment, even though a CA-16 had not been completed. Because the Office had not exercised its discretion and made such a determination, the case was remanded.

FORFEITURE OF COMPENSATION FOR FAILURE TO REPORT EARNINGS

Janine M. Bernerth, Docket No. 94-1290, Issued April 5, 1996

The claimant sustained a right ankle fracture, which was accepted by the office. She returned to work part-time, then was totally disabled again due to a consequential injury. She submitted CA-8 forms to claim continuing compensation for the periods April 18 through May 1, 1992, and May 2 through May 15, 1992. On both forms, she indicated that she had not been employed. On May 20, 1992 she completed another CA-8 form, and attached a letter which stated that checks had been issued to her for work actually performed by her sons and fiance. The work involved delivery of telephone books. She stated that she signed delivery contracts in her name so that her sons and fiance could fulfill more than one contract, because the delivery company would allow only one contract at a time. The payments to her totalled $700.00.

The employer conducted an investigation. The claimant admitted that she sometimes drove the truck to pick up and transport telephone books, and that she also made notations indicating who received how many telephone books. She estimated that she helped 25% of the time.

The Office declared that compensation paid to the claimant for the period April 18 through May 15, 1992 was forfeited because she worked and did not report her earnings on the CA-8 forms. A $1,854.00 overpayment was declared, and the claimant was found to be with fault.

The claimant responded that no one ever explained to her the information she needed to submit on a CA-8 form, and that her sons and fiance earned the money, not her. She requested a hearing, during which she testified that after she received the checks in payment for the deliveries, she tried to telephone the office concerning what to do, and when she received no satisfactory answer, she wrote the May 20 letter. Her representative stated that the first check did not arrive until after one of the CA-8 forms had been sent to the Office. The hearing representative upheld the forfeiture decision.

The Board found that the Office improperly found that the claimant had forfeited compensation for the period April 18 through May 15, 1992. The Office has the burden of establishing that the claimant knowingly failed to report employment or earnings. It is not sufficient simply to establish that there were unreported earnings from employment. The term "knowingly" is not defined in the Act or its implementing regulations, but the Board had held that it included such concepts as "with knowledge," "consciously," "intelligently," "willfully," or "intentionally." The office gave no evaluation or explanation of how the claimant "knowingly" omitted to report earnings, and therefore did not meet its burden to declare forfeiture.

HEARING LOSS - REPORT REQUIREMENTS; TINNITUS

Carmel J. Dalfonso, Docket No. 94-2015, Issued May 28, 1996

This decision is being included not because of the outcome, but because it contained some interesting discussion concerning hearing loss cases.

Claims examiners are often required to determine which of several audiograms to use in determining the extent of a claimant's hearing loss. A complete evaluation should include results of speech reception thresholds, auditory discrimination scores, and bone conduction thresholds. The audiological examination should be conducted separately from the otological examination, to ensure reliability.

With respect to tinnitus, the A.M.A. Guides to the Evaluation of Permanent Impairment does not assign impairment, except to the extent that tinnitus causes an inner ear disturbance, which produces vestibular disequilibrium or vertigo. In addition, a five percent impairment can be assigned where tinnitus impairs speech discrimination.

INTOXICATION - USE OF AFFIRMATIVE DEFENSE IN PEACE CORPS CASES

Kurt R. Ellis, Docket No. 94-969, Issued April 1, 1996

The claimant was a Peace Corps volunteer who sustained a psychotic episode while serving in the Peace Corps in Senegal, West Africa. He was taken to the United States for treatment and was separated from the Peace Corps shortly thereafter. He claimed that the stressful living conditions in Senegal, including different culture, customs, and language, had caused his condition.

The claimant had a twelve-year history of smoking marijuana several times a week, and had smoked marijuana and drank alcohol two to three times a week while in Senegal. He had been smoking marijuana and drinking at the time when he first started exhibiting psychotic delusions. The claimant also had a strong family history of mental illness.

The Office denied the claim on the basis that the emotional condition did not occur in the performance of duty, and that the claimant was in violation of the statutory exclusions of section 8102 involving intoxication or substance abuse. The claimant requested reconsideration and submitted additional medical evidence, which included an unrationalized medical opinion that the brief reactive psychosis was caused by job stress, rather than use of alcohol and marijuana. The Office denied modification, finding that the new evidence was insufficient to warrant modification of the prior decision.

The Board affirmed the office's decision, but pointed out that the statutory exclusion provisions for Peace Corps volunteers were found at section 8142(c)(3) rather than section 8102. Title 20 C.F.R. Section 10.605 provides that any injury suffered by a Peace Corps volunteer while the volunteer is located abroad is presumed to have been sustained in the performance of duty, and any disease or illness contracted during that time is presumed to be proximately caused by the employment, except when the injury or disease is caused by the volunteer's willful misconduct, intent to bring about the injury of self or another, or intoxication by alcohol or illegal drugs. If a presumption of causal relationship cannot be made because of these factors, then the volunteer has the burden of proving that the injury was sustained in the performance of duty. The Office raised the statutory exclusion issue, and the claimant failed to submit rationalized medical evidence establishing that his condition was related to his employment, rather than the intoxication and drug use.

OVERPAYMENT - FINDING OF FAULT

Charolette P. Sanders, Docket No. 94-65, Issued May 9, 1996

Several issues were being appealed in this case. The only issue being addressed in this summary is that of the finding with respect to an overpayment of compensation.

The claimant was receiving compensation on the periodic roll. She was informed that she should advise the Office if she received an offer of a position from her employer. By telephone call dated February 26, 1992, the Office was informed that the claimant returned to work on January 21, 1992. The claimant was informed on February 26 that she might have an overpayment. The claimant was paid compensation through March 6, 1992. An overpayment was calculated for the period January 21 through March 6, 1992. The claimant was informed that she was found to be with fault with respect to the overpayment, as she should have reasonably been aware that she was not entitled to compensation for lost wages after her return to duty.

The Board agreed with the amount of the overpayment, but found that the claimant was without fault for the portion of the overpayment that she received prior to the February 26 telephone call (a periodic roll check dated February 8, covering the period from January 12 through February 8, 1992). They reiterated the principle that the content of a form letter such as the one sent in this case cannot be used to establish what a claimant knew or didn't know with regard to the receipt of a subsequent payment, because it contains no specific information concerning the specific check. The Board also found that the finding of fault for the next check, dated March 7, 1992, was correct because after the February 26 telephone call, the claimant should have known that she was not entitled to the check.

This serves as a reminder that the circumstances of the individual case must be fully considered when making fault determinations.

OVERPAYMENT - FINDING OF FAULT

Thomas Ray, Docket No. 94-1356, Issued April 19, 1996

The claimant in this decision sustained a wrist injury which was accepted by the Office, and for which he received total disability benefits for approximately three years. When he was placed on the periodic roll, he was sent a letter CA-1049, which stated that he must notify the Office immediately upon any return to work and must return payments for periods that he worked. He was also sent CA-1032 letters, which also reiterated that employment should be reported immediately.

The claimant began to work full-time in a lower-paying job in August 1992, which was reported in an August rehabilitation report. The claimant continued to receive compensation for total disability through February 6, 1993, at which time compensation payments were reduced, based upon his loss of wage-earning capacity. The Office declared an overpayment of $4,443.22 for the period from August until February, based on the claimant having received benefits for total disability when he was only entitled to partial disability payments, due to his employment. The office found that the claimant was with fault in the matter of the overpayment, because he should have known that he was not entitled to compensation for total disability for this period.

The claimant requested a hearing on the issues of fault and waiver. He testified that he had tried to contact the Office after he returned to work, and received written information that the amount of compensation he was receiving was correct. The hearing representative affirmed the finding of fault and directed repayment based on financial information provided by the claimant.

The Board found that the amount of the overpayment was correct, but that the Office had improperly determined that the claimant was with fault. They found that the Office had not submitted sufficient evidence to establish that the claimant accepted payments that he knew or should have known were incorrect, since the record did not contain copies of the compensation payments or other evidence relating to the correctness of the payments. The CA-1049 letter in and of itself was not sufficient because it did not contain information regarding the period covered by a specific subsequent payment. The case was remanded for consideration of the claimant's eligibility for waiver.

PERFORMANCE OF DUTY - COMPENSABLE FACTORS OF EMPLOYMENT

Elmer G. Tardie, Docket No. 94-1107, Issued May 6, 1996

A significant number of ECAB Quarterly Summary Circulars issued during the past few years have included decisions which dealt with compensable factors of employment in claims for emotional conditions. In reviewing ECAB decisions over the past few years, it is noted that in general, claims examiners are becoming more skilled at differentiating between compensable and non-compensable employment factors. A larger proportion of decisions are being affirmed by the Board.

In this decision, the claimant stated that a few weeks after starting his new job, he became confused and depressed, and experienced headaches. He described the nature of his work as sorting materials into appropriate bins. He was required to work quickly and to make as few mistakes as possible. While working he would get anxious and confused, and he made some mistakes. He stated that he was not pushed to work faster, and that everyone at his employing establishment was friendly. His employer stated that the claimant was a perfectionist, that he was consistently a top achiever, and that he became upset with himself when he made an error. The employer stated that they had reassured him that they were pleased with his performance, but that he was still self-critical.

The Office denied the claim on the basis that fact of injury was not established. They accepted that the described events occurred as stated, but found that the medical evidence did not support that a medical condition resulted from the work exposure.

A hearing was requested and conducted. The hearing representative found that the claim was based upon the claimant's anxiety over his ability to perform his duties, which was self-generated and therefore not compensable. The District Office's decision was affirmed.

The Board disagreed. They found that the claimant described the specific duties and requirements of his job to which he attributed his condition, and that these related to his assigned duties and were compensable. The Board also found that the claimant had submitted sufficient medical evidence to establish a prima facie claim. They remanded the case for additional development.

PERFORMANCE OF DUTY - COMPENSABLE FACTORS OF EMPLOYMENT

Leo Bumpus, Docket No. 94-1128, Issued April 19, 1996

The claimant in this decision was a mailhandler who claimed aggravation of asthma due to a conversation he had with his employer about union time.

The claimant was administrative vice president of the local union. On the Saturday of Labor Day weekend, after working about an hour, he asked his supervisor for union time for the remainder of the shift (about six hours). The supervisor told him that he could have one or two hours, but that he needed the claimant to work the rest of the time. After further discussion concerning whether the claimant was really needed to work, the claimant had an asthma attack. The employer submitted a statement that on most occasions, the claimant had in the past been given the total time requested for union affairs. On the date of injury, the staffing was reduced, and the mail volume was heavy, so management's offer of one to two hours of union time was reasonable.

The Office denied the claim on the basis that the injury did not occur in the performance of duty. The claimant requested a hearing. At the hearing, the claimant's representative contended that the claimant was on the clock in the performance of his duties as a union representative at the time of his injury. The claimant stated that he had filed a grievance over the denial of union time, which was at Step 3 and had not been resolved. The claimant also submitted a copy of a decision of a labor relations specialist from his employing agency which was reportedly related to a grievance on a prior denial of union time. The decision stated that "steward time will not be unreasonably denied" , and "there may have been occasions when the grievant was not allowed to do union business for eight hours a day based on the needs of the service. The file indicates that the grievant has been allowed eight hours of union time on other occasions. No disclosure of discrimination has been demonstrated..." The claimant also submitted a copy of the union/agency agreement, which stated that requests for official time by union stewards should not be unreasonably denied. The hearing representative affirmed the district office's decision, finding that the denial of union time was an administrative action, and there was no evidence that the agency's action was abusive or in error.

The Board found that the claimant was not actually engaged in representational functions at the time of his asthma attack, and that determining whether or not to grant union time was an administrative function of the agency which would not be covered under the Act absent a showing of error or abuse. The decision was affirmed.

REFUSAL OF SUITABLE WORK

Lawrence T. Pisapio, Docket No. 95-25, Issued April 15, 1996

The claimant was a credit union examiner stationed in California at the time he injured his back. The claim was accepted for a lumbosacral strain and a herniated disc.

Approximately one year prior to his injury, the claimant had been detailed to the California office, received a temporary promotion shortly after that, and then was reassigned to a permanent auditor position. Prior to his injury, he had moved his family back to Massachusetts, which is where he lived prior to being detailed to the California Office. He had applied for a transfer back to Massachusetts, but was still employed in California at the time of his injury.

The claimant's physician submitted medical evidence supporting that the claimant could return to work with no heavy lifting or prolonged sitting. The employer offered him employment as an auditor in California. The office reviewed the job offer and informed the claimant that it was suitable. The claimant refused the job on the basis that commuting from Massachusetts to California was not compatible with his medical condition. The Office received information from the agency showing that a PCS move from Massachusetts to California had been authorized, and that the claimant had established a residence in California. After verifying that the California residence was within commuting distance of the California office, the Office informed the claimant that his reason for refusing the job offer was unacceptable, that the job would be held open an additional 15 days to allow him to accept it, and that failure to accept the offered employment would result in termination of compensation. The Office received no further response from the claimant, and compensation was terminated.

The claimant requested a hearing. He stated that he had been in the process of arranging for a transfer when the injury occurred, and that the suitable work position was not in his commuting area as his residence was in Massachusetts. The hearing representative affirmed the Office's decision, finding that his duty station was in California, and the issue of whether the claimant had moved his household back to Massachusetts was irrelevant. The claimant also requested reconsideration, for which the Office denied modification.

The Board affirmed the Office's decisions. They reiterated the principle that if a continuously employed individual moves away from the employer's commuting area, a refusal of suitable work on the basis that it is not within the commuting area will not be acceptable.

REPRESENTATIVES - SENDING COPIES OF CORRESPONDENCE

Ivan R. Sturdivant, Docket No. 94-1809, Issued May 10, 1996
Irene M. Williams, Docket No. 94-1831, Issued May 29, 1996

Both of these decisions involve failure of the district offices to send copies of correspondence to authorized representatives.

In Sturdivant, the Office accepted that the claimant's head injury resulted in a mild contusion. The claimant subsequently resigned from his job due to a nonemployment-related condition, retained an attorney, and filed a claim for an unspecified recurrence of disability. The Office acknowledged the representative, and sent him procedures with regard to representative's fee applications. In a separate letter, the claimant was advised of the information required to establish his claim for recurrence. No copy of the letter was sent to the authorized representative. After receiving no response from the claimant, the Office denied the claim for recurrence. No copy of the denial decision was sent to the representative.

The Board set aside the Office's decision because the Office failed to send the representative notice of the deficiencies of the claim, thereby depriving him of the opportunity to assist in remedying the deficiencies. The case was remanded for the Office to notify both the claimant and the representative of the deficiencies of the claim.

In Williams, after paying compensation and medical benefits, the Office terminated the claimant's compensation on the basis that she had no continuing work-related disability. The Office had obtained second and impartial medical opinions on the issue, and the termination was based upon the opinions of those examiners. The authorized representative had requested that he be made part of the selection of any impartial medical specialist, but did not state the reason for participation in the selection, until after the termination of benefits was made. The Office did not inform the representative of the appointment for the impartial examination. In response to the proposed termination of compensation, the representative objected on the basis that he had not been allowed to participate in the selection of the impartial examiner, and that the reason for the request was that the claimant preferred to be examined by a female physician. The Office finalized the termination.

The representative requested reconsideration, citing the procedural error made with respect to the selection of the impartial physician. The Office denied modification of the prior decision.

The Board found that the impartial physician's report was not sufficient to constitute the weight of the medical evidence because it did not provide medical rationale for the opinions expressed, and reversed the decisions on the basis that the Office had not met its burden of proof to terminate benefits. With respect to the impartial physician selection, the Board stated that since no valid reason for participating in the selection process was offered by the representative, the Office's failure to provide him with a copy of the referral letter constituted harmless error.

Although in the Williams decision, the Office's failure to send a copy of correspondence to the authorized representative was found to be harmless error, the importance of sending copies of all correspondence to the authorized representative cannot be emphasized too much.

REPRESENTATIVES' FEES - ABUSE OF DISCRETION

Charles Hufford, Docket No. 94-1551, Issued April 22, 1996

The representative in this case requested approval of a fee in the amount of $7,774.00, based upon 23.92 hours of work at an hourly rate of $325.00. The claimant objected to the fee request, and stated that the fees were "excessive and unconscionable". The Office approved a fee in the amount of $4,784.00, based upon the claimed number of hours and an hourly rate of $200.00 rather than $325.00. As justification for reducing the hourly rate, the Office stated that the rate appeared high when compared to what attorneys in northern California charge (the attorney was located in Los Angeles), that an attorney in Long Beach charged less for similar cases, that there were attorneys in northern California who charged less than $100.00 per hour, and that there could not be that much of a difference between northern and southern California.

The Board found that the Office had abused its discretion in approving the reduced fee. The sole area of dispute was the hourly rate. The Office had not provided probative evidence to support that $200.00 per hour was a "customary local charge for similar services". The Los Angeles Bar Association or a similar organization had not been contacted for information concerning customary local charges.

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