United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Delaware, OH, Employer
__________________________________________

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

Docket No. 15-0759
Issued: July 5, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 18, 2015 appellant filed a timely appeal from a December 23, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation based on
appellant’s failure to cooperate with vocational rehabilitation.
FACTUAL HISTORY
On January 11, 2008 appellant, then a 45-year-old distribution clerk, filed for a
recurrence of disability commencing on December 21, 2007 causally related to an April 20, 1993
employment injury when he twisted his back after jumping up suddenly. OWCP determined that
1

5 U.S.C. § 8101 et seq.

he was alleging a new occupational disease as he attributed his condition to a change from
managerial to clerk duties. It accepted the claim for lumbar sprain and lumbosacral spondylosis
and assigned file number xxxxxx804. OWCP paid appellant wage-loss compensation beginning
December 27, 2007 and was placed on the periodic rolls effective August 30, 2008.2
In an attempt to determine appellant’s capacity to return to work, OWCP referred
appellant to Dr. Manhal Ghanma, an orthopedic surgeon, for a second opinion evaluation, on
March 16, 2012. In his April 3, 2012 report, Dr. Ghanma found that appellant had no residuals
of his November 27, 1992 or April 20, 1993 work injuries, but had residuals from his March 28,
2003 laminectomy and decompression from L3 to S1, including atrophy of the left calf and
decreased sensation of the leg and foot. He opined that appellant could work with permanent
restrictions. In an April 3, 2012 work restriction evaluation, Dr. Ghanma determined that
appellant could sit, walk, and stand for eight hours per day and push, pull, and lift up to 25
pounds for eight hours per day.
On April 20, 2012 OWCP referred appellant for vocational rehabilitation.
Appellant underwent a functional capacity evaluation (FCE) on July 17, 2012 which
reflected that he could perform light work constantly sitting, occasionally walking and standing,
and frequently lifting and carrying up to 10 pounds.
In an August 22, 2012 work restriction evaluation, Dr. Larry T. Todd, Jr., an osteopath,
found that appellant could work eight hours per day within the restrictions of the FCE. Also on
August 22, 2012 Dr. Emily J. Yu, a Board-certified physiatrist, reviewed the FCE and
determined that appellant could perform light work sitting up to 50 minutes and standing up to
15 minutes at a time and lifting and carrying 10 pounds frequently and 20 pounds occasionally.3
Appellant underwent vocational testing on December 3, 2012. The evaluator noted that
appellant had obtained an associate’s degree in finance in 1981.
On February 27, 2013 Dr. Yu described appellant’s injury to his back in the 1990s that
was treated with a fusion in 2003 and a lifting injury at work in December 2007 causing pain
radiating into the lower extremities.4 She further noted that in 2011 he underwent an extension

2

OWCP had previously accepted that appellant sustained a disc herniation at L3-4 on November 27, 1992 under
file number xxxxxx176 and lumbar strain and a herniated disc at L3-4 and L4-5, under file number xxxxxx415, that
he sustained as a result of lifting, bending, and twisting. Appellant underwent a laminectomy at L4-5 on August 16,
1993, a laminectomy and decompression from L3 to S1 on March 28, 2003, and a spinal fusion at L2-3 on
August 30, 2011. On August 30, 2011 appellant underwent a laminectomy and fusion at L2-3 that OWCP
authorized under file number xxxxxx804.
3

On June 12, 2012 Dr. Yu noted that appellant reported that he could not sit, walk, or stand for long periods or
lift over five pounds. She recommended steroid injections.
4

Dr. Yu also submitted a progress report dated February 27, 2013.

2

of his fusion to L2-3. Dr. Yu also noted that appellant had inadequately controlled diabetes. She
stated:
“[Appellant] has positive straight leg raising on the left more than right,
tenderness in the lumbar and sacroiliac joint region, weakness in the left foot
dorsiflexor. It is my medical opinion that his persistent symptoms are directly
[the] result of his initial work-related injury, which resulted in the L3-S1 fusion,
as well as the subsequent injury in 2007 with a need for extension to the L2-L3
level and persistent symptoms due to that. At this time, it is my medical opinion
that he is unable to maintain any gainful employment due to the multitude of his
persistent symptoms.”
On June 30, 2013 the rehabilitation counselor reviewed Dr. Yu’s February 27, 2013
report and noted that appellant intended to retire on disability if the Office of Personnel
Management (OPM) approved his application.
In a progress report dated July 10, 2013, Dr. Yu disputed appellant’s ability to attend
college and to obtain a degree in accounting. She stated, “[He] feels that he is unable to do that
as he cannot stand, walk, or sit for any prolonged periods of time. [Appellant] certainly cannot
walk around on a campus. He cannot sit for more than 15 minutes at a time for any classes.”
Dr. Yu diagnosed status post an April 19, 1993 employment injury and bilateral sacroiliac joint
dysfunction. She advised that “attending classes and sitting and walking on campus will
significantly exacerbate [his] symptoms.”
A job classification dated July 29, 2013 identified the position of payroll clerk as a
sedentary job requiring a specific vocational preparation of three to six months. The
rehabilitation counselor advised that appellant could meet the vocational preparation by
obtaining a bookkeeping certificate. She noted that he had an associate’s degree in finance from
30 years earlier but that it was outdated because he did not understand computer software
packages. The rehabilitation counselor determined that the position was available in sufficient
numbers in his geographical area.
On August 15, 2013 an OWCP rehabilitation specialist approved a plan for appellant to
attend a training program for four months to prepare to work as either a payroll clerk or
bookkeeper.
On August 21, 2013 the rehabilitation counselor reported that appellant agreed to obtain a
bookkeeping certificate because he could take the classes on the computer.
On October 9, 2013 Dr. Yu noted that appellant began attending classes in August 2013
but had not returned to class since the first week due to increased pain. She reported that
appellant complained of depression.5

5

In a disability certificate dated July 10, 2013, received by OWCP on August 26, 2013, Dr. Yu advised that
appellant could not stand over five minutes or climb stairs.

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In a report dated October 26, 2013, the rehabilitation counselor related that appellant was
having difficulty focusing on his course work due to stress. In a telephone call dated October 18,
2013, the rehabilitation counselor related:
“[Appellant] stated that he is not able to concentrate on his classes and essentially
has [not] attended classes in the past [two to three] weeks. He noted that he was
doing ok at the beginning of the term but has [not] turned in any homework
assignments or taken any quizzes or examinations in the past [three] weeks.
[Appellant] feels that he is probably failing his courses at this point.”
The rehabilitation counselor noted that appellant had received treatment at the emergency
room for psychological issues. She advised him to submit medical evidence from his provider
addressing his inability to participate in the vocational rehabilitation program.
On October 31, 2013 Dr. Matthew D. Cook, who specializes in family medicine,
indicated that appellant was unable to “do work rehab[ilitation] or on line classes due to
depression [and] anxiety.”
By letter dated November 19, 2013, OWCP informed appellant that the medical evidence
from Dr. Cook was insufficient to show that he was unable to participate in vocational
rehabilitation as he was not a psychiatrist and had not provided rationale for his opinion. OWCP
advised appellant of the provisions of section 8113(b) of FECA and instructed him to contact
OWCP to make arrangements to continue with the training program or provide reasons for his
refusal with any supporting evidence within “the allotted period.”
On December 11, 2013 the rehabilitation counselor reported that appellant had expressed
concern, in a telephone call on November 26, 2013, about the November 21, 2013 letter from
OWCP suggesting that he had refused to participate in vocational rehabilitation and instructing
him to return to his training program. She told appellant that, as he had not participated, OWCP
would only approve “a job search program for [him] to pursue a direct placement program.”
Appellant advised that OWCP had instructed him to return to the original training program. The
rehabilitation counselor indicated that she had contacted an OWCP rehabilitation specialist.
In an e-mail dated December 23, 2013 to OWCP’s claims examiner, an OWCP
rehabilitation specialist indicated that she had read the proposed sanction letter advising
appellant to resume training.6 She noted that appellant had failed the training and that he had
attributed his failure to stress. The rehabilitation specialist disagreed that appellant could resume
coursework and asked if appellant would be rated on the position that he could have performed if
he completed the training or jobs he could currently perform. In response, an OWCP claims
examiner advised that he could not rate appellant on a position for which he had failed his
training.”
6

In a report dated November 20, 2013, a rehabilitation counselor had reviewed appellant’s contention that his
physician found that he was not mentally stable enough to participate in vocational rehabilitation. She advised that
appellant needed to submit a detailed medical report. Appellant noted that he was on a suicide watch in the hospital
in October 2013 but did not want to give OWCP this information because it was private. He related that he could
not be reimbursed for treatment from a mental health professional under his insurance.

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In a December 23, 2013 reply, OWCP rehabilitation specialist advised that appellant
should have notified his rehabilitation counselor earlier that he was having difficulty with
training, but instead quit without notice. She found that it was “reasonable to assume that had he
maintained a ‘C’ average OR had he NOT quit attending training he would have succeeded….”
(Emphasis in original). The vocational rehabilitation specialist opined that appellant should be
rated based on the job he would have received had he completed training.
In a report dated January 1, 2014, the rehabilitation counselor informed appellant that
OWCP might tell him to reenroll in training, begin a job search within his capabilities, or issue a
loss of wage-earning capacity determination based on either the goal of the training program or
an entry-level position.
In a vocational rehabilitation report dated January 6, 2014, the rehabilitation counselor
noted that on January 3, 2014 appellant suggested that he could sign up for courses in pursuit of
his bookkeeping certificate in the spring. She advised appellant that this did “not appear to be an
option at this point.”
On January 8, 2014 the OWCP rehabilitation specialist closed the rehabilitation file. She
determined that appellant had enrolled in training classes but had not advised the rehabilitation
counselor that he was failing the class or that he had quit. The rehabilitation specialist noted that
appellant had attributed his lack of participation to stress but had not submitted sufficient
supporting medical evidence. She cited the procedure manual that noncooperation with
vocational rehabilitation included failing to maintain a “C” average, failing to go to class, and
failing to apply sufficient effort. The rehabilitation specialist determined that it was “reasonable
to assume had [appellant] continued his training courses and sought [additional] assistance from
his [rehabilitation counselor] he would have successfully completed training to the most logical
conclusion.” She found that the positions of payroll clerk and bookkeeper were medically and
vocationally suitable and performed in sufficient numbers in his geographical area at weekly
wages of $480.00 for payroll clerk and $440.00 for bookkeeper.
On January 13, 2014 Dr. Yu diagnosed low back pain after a fusion, chronic
radiculopathy, and bilateral sacroiliac joint dysfunction. On examination, she found a negative
straight leg raise with full strength and sensation. Dr. Yu stated, “[Appellant] is unable to work
due to the severity of his pain. He is unable to proceed with vocational rehabilitation due to the
severity of his pain.” Dr. Yu also noted that appellant was “battling severe depression.”
In a report dated January 15, 2014, the rehabilitation counselor noted asking appellant
about his job goals for direct placement and appellant advised that he did not feel he could
currently work.
On January 15, 2014 OWCP referred appellant to Dr. Ghanma for an updated second
opinion evaluation. In a report dated February 18, 2014, Dr. Ghanma discussed his history of
work injuries and resulting surgeries. He reviewed the positions of bookkeeper and payroll clerk
and found that appellant was medically capable of performing the duties of both positions as they
were sedentary in nature.

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In a report dated March 17, 2014, Dr. Yu diagnosed bilateral sacroiliac joint dysfunction
due to a change in mechanics resulting from appellant’s employment-related L2 through S1
fusion. She found that he was totally disabled from employment.
Appellant elected to receive retirement benefits from OPM in lieu of workers’
compensation benefits effective December 1, 2014.
On July 1, 2014 OWCP requested that Dr. Yu review Dr. Ghanma’s report and advise
whether appellant could perform the positions of bookkeeper and payroll clerk.
The rehabilitation counselor indicated that the position of payroll clerk was sedentary and
reasonably available within appellant’s geographical area at entry-level wages of $472.00 per
week. She noted that OWCP had approved a year-long training program for him to “develop
modern day skills for record keeping activities such as payroll, accounts receivable and accounts
payable, records preparation and other types of financial record-keeping activities.”
On November 10, 2014 OWCP advised appellant of its proposed reduction of his
compensation as he had the capacity to earn wages as a payroll clerk at the rate of $472.00 per
week.
On December 4, 2014 appellant challenged the proposed reduction of his compensation.
He argued that the second opinion physician was a “quack” and that Dr. Yu found that he was
unable to work. Appellant disputed that he failed to notify his rehabilitation counselor of his
situation. He maintained that Dr. Ghanma did not have all of his medical records to review.
By decision dated December 23, 2014, OWCP reduced appellant’s compensation benefits
effective that date based on its finding that he had the physical and vocational capacity to work
as a payroll clerk earning wages of $472.00 per week. It noted that it closed his vocational
rehabilitation because he stopped going to classes without promptly informing the rehabilitation
counselor. OWCP concluded that if appellant had completed rehabilitation he could have
worked as a payroll clerk. It applied the formula set forth in Albert C. Shadrick7 to determine his
wage-earning capacity.
On appeal appellant argues that his physicians found that he was unable to work and that
he notified the rehabilitation counselor that he was failing his classes.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.8 Under section 8115(a), wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent his or her wage7

5 ECAB 376 (1953); codified by regulations at 20 C.F.R. § 10.403.

8

See T.O., 58 ECAB 377 (2007).

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earning capacity, or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, his or
her usual employment, age, qualifications for other employment, the availability of suitable
employment and other factors or circumstances which may affect wage-earning capacity in his or
her disabled condition.9
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his
physical limitations, education, age, and prior experience.10 Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick11 will result in the percentage of the employee’s loss of
wage-earning capacity.
Section 8113(b) of FECA further provides, “If an individual without good cause fails to
apply for and undergo vocational rehabilitation when so directed under section 8104”12 OWCP,
after finding that in the absence of such failure the wage-earning capacity of the individual
would likely have increased substantially, “may reduce prospectively the monetary
compensation of the individual in accordance with what would probably have been [her] wageearning capacity in the absence of the failure, until the individual in good faith complies” with
the directions of OWCP.13 OWCP procedures require that prior to reduction of compensation a
claimant be notified of the provisions of section 8113(b) and provided an opportunity to either
resume participation in vocational rehabilitation or provide reasons for not continuing
participation.14 Under section 8104 of FECA, the employee’s failure to willingly cooperate with
vocational rehabilitation may form the basis for terminating the rehabilitation program and the
reduction of monetary compensation.15 OWCP’s implementing regulations indicate that the

9

Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999).

10

Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000).

11

See supra note 6.

12

Section 8104(a) of FECA pertains to vocational rehabilitation and provides: “The Secretary of Labor may
direct a permanently disabled individual whose disability is compensable under this subchapter to undergo
vocational rehabilitation. The Secretary shall provide for furnishing the vocational rehabilitation services.”
13

5 U.S.C. § 8113(b).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.17 (February 2011).
15

See Wayne E. Boyd, 49 ECAB 202 (1997) (the Board found that OWCP properly reduced the claimant’s wageloss compensation benefits as he failed to cooperate with the early and necessary stages of developing an appropriate
training program).

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reduction remains in effect “until such time as the employee acts in good faith to comply with
the directions of [OWCP].”16
Regarding the failure to cooperate with the training stage of vocational rehabilitation,
OWCP’s procedure state:
“Refusing or Impeding Training: Specific instances of non-cooperation during
this phase of vocational rehabilitation include: failure to attend classes; failure to
apply appropriate effort to succeed in such classes; failure to maintain a ‘C’
average; and failure to undergo training after a training program has been
approved. If the claimant refuses or impedes rehabilitation training, the CE
[claims examiner] shall notify the injured worker, in writing, of the provisions of
5 U.S.C. § 8113(b) and direct the injured worker to apply for, participate in, or
resume participation in the training program. The letter should advise the injured
worker to comply or provide a written explanation of [his] failure to comply
within 30 days, or the provisions of 5 U.S.C. § 8113(b) will be applied and
benefits will be reduced based on the jobs targeted in the approved training
plan.”17
ANALYSIS
OWCP accepted that appellant sustained lumbar sprain and lumbosacral spondylosis
under file number xxxxxx804, a disc herniation at L3-4 under file number xxxxxx176, and
lumbar strain and a herniated disc at L3-4 and L4-5 under file number xxxxxx415. He
underwent a laminectomy at L4-5 on August 16, 1993, a laminectomy and decompression from
L3 to S1 on March 28, 2003, a spinal fusion at L2-3 on August 30, 2011, and a laminectomy and
fusion at L2-3 on August 20, 2011.
OWCP paid appellant compensation for total disability under file number xxxxxx804
beginning December 21, 2007. On April 3, 2012 Dr. Ghanma, an OWCP referral physician,
found that he could work with restrictions of pushing, pulling, and lifting up to 25 pounds for
eight hours per day. Based on his report, OWCP referred appellant for vocational rehabilitation.
OWCP properly found that the medical evidence established that appellant had the
capacity to perform the duties of a payroll clerk. The position is classified as sedentary and
requires occasional lifting up to 10 pounds; thus, it is within the restrictions set forth by
Dr. Ghanma.
In a report dated February 27, 2013, Dr. Yu advised that appellant was unable to work
due to his employment injury. She did not, however, specifically address the relevant issue of
whether he could participate in vocational rehabilitation. On July 30, 2013 Dr. Yu opined that
appellant’s symptoms would be aggravated by attending classes and walking around the campus.
16

20 C.F.R. § 10.519.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.17(c)
(February 2011).

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Her restrictions, however, were prophylactic in nature, and the possibility of a future injury does
not form the basis for the payment of compensation under FECA.18
In a report dated January 13, 2014, Dr. Yu diagnosed low back pain subsequent to a
fusion, chronic radiculopathy, and bilateral sacroiliac joint dysfunction. She found that appellant
was totally disabled from work and unable to participate in vocational rehabilitation due to pain.
On March 17, 2014 Dr. Yu diagnosed sacroiliac joint dysfunction due to mechanical dysfunction
related to his fusion at L2 through S1 and opined that he was unable to perform employment
duties. She did not, however, provide rationale for his finding that he was unable to participate
in employment duties. Further, OWCP did not accept sacroiliac joint dysfunction as work
related. Where appellant claims that a condition not accepted or approved by OWCP was due to
his employment injury, he bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence.19
Dr. Yu, while attributing the bilateral sacroiliac joint dysfunction to a change in mechanics
resulting from a fusion, did not fully explain the reason for the development of the condition or
why it resulted in total disability. A physician must provide rationale for the opinion reached.
Where no such rationale is present, the medical opinion is of diminished probative value.20
On January 15, 2014 OWCP again referred appellant to Dr. Ghanma. On February 18,
2014 Dr. Ghanma reviewed the position of payroll clerk and determined that it was within his
physical capacity. In July 2014 OWCP requested that Dr. Yu review and comment on
Dr. Ghanma’s February 18, 2014 report, but she did not respond to the request. The Board finds
that OWCP properly determined that appellant had the physical capacity to perform the position
of payroll clerk based on the opinion of Dr. Ghanma. While appellant contended that he was
unable to participate in vocational rehabilitation due to depression, he submitted only an
October 31, 2013 report from Dr. Cook, a family physician, who found that he was unable to
participate in vocational rehabilitation as a result of depression and anxiety. As Dr. Cook is not a
psychiatrist or psychologist, his opinion is of reduced probative value as he is not a specialist in
the appropriate field.21
The Board finds, however, that OWCP did not meet its burden of proof to reduce
appellant’s monetary compensation. The rehabilitation counselor found that appellant met the
physical requirements for the position of payroll clerk, but that he required additional training
before he had the vocational capacity to perform the position. Consequently, appellant began
attending school to obtain certification as a bookkeeper. Appellant stopped doing his
coursework and did not receive his certificate. OWCP considered this failure as a lack of
cooperation with vocational rehabilitation and used this as a basis to reduce compensation under
section 8113 of FECA for failure to cooperate with vocational rehabilitation.

18

Andy J. Paloukos, 54 ECAB 712 (2003).

19

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

20

Jean Culliton, 337 ECAB 728 (1996).

21

See P.S., Docket No. 07-2020 (issued March 12, 2008); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

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Section 8113(b) of FECA provides that, if a claimant without good cause fails to undergo
vocational rehabilitation when instructed by OWCP, it may reduce his wage-earning capacity in
accordance with what would have been his earning capacity without the failure to participate.
When a claimant fails to proceed with an approved training program, OWCP must direct him to
comply with the program and explain that if he fails to comply it will apply the provisions of
section 8113(b) and reduce his monetary compensation.22 By letter dated November 19, 2013,
OWCP advised appellant of the provisions of section 8113(b) and instructed him to make
arrangements to continue his training program or submit reasons for his refusal to participate in
vocational rehabilitation “within the allotted period.” OWCP’s procedures provide that a
warning letter advising a claimant of the penalties for failing to cooperate with vocational
rehabilitation indicate that he must be provided with a letter allowing 30 days for a written
explanation for his failure to cooperate.23 In its November 19, 2013 letter, OWCP did not
specify a time in which appellant needed to respond to its letter, and thus it did not comply with
its procedural requirements.
The Board finds that OWCP failed to properly reduce wage-loss compensation based on
appellant’s failure to cooperate with vocational rehabilitation.
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation based on
appellant’s failure to cooperate with vocational rehabilitation under section 8113.

22

Id. at Chapter 2.813.17(c) (February 2011).

23

Id.

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ORDER
IT IS HEREBY ORDERED THAT the December 23, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 5, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Barstow, CA,
Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1029
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On April 14, 2020 appellant, through counsel, f iled a timely appeal from a March 12, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On February 16, 2018 appellant, then a 49-year-old management assistant, filed a traumatic
injury claim (Form CA-1) alleging that on February 12, 2018 she experienced stress, anxiety,
nausea, and depression while in the performance of duty when her second-line supervisor informed
her that she was referenced in “graphic sexual harassment material.” She noted that she had also
received a death threat in August 2017. Appellant stopped work on February 14, 2018.
In a development letter dated February 23, 2018, OWCP advised appellant of the factual
and medical evidence necessary to establish her claim and attached a questionnaire for her
completion. It also requested that she clarify whether she was claiming an occupational disease or
a traumatic injury. OWCP afforded appellant 30 days to respond.
In a March 23, 2018 response, appellant related that, in her position as secretary treasurer
of the local union, she had uncovered questionable financial actions taken by the union. 3 An
outside audit had revealed improprieties and the union had been placed under Trusteeship.
Appellant alleged that, when officials came to assume control over the union, the union president,
R.R., yelled that it was because appellant was “f**king” those higher-ups in rank and “sleeping
around with them.” R.R.’s associates, C.L., B.S., and E.C., agreed with him and began to spread
this rumor throughout the office. Employees who were angry about the audit posted falsified
minutes of union meetings and a photograph of appellant from Facebook on bulletin boards at
work. Appellant also alleged that they vandalized her vehicle at work. Coworkers that appellant
did not know approached her and asked if she was sleeping with the man who took over the union.
Appellant further asserted that on August 17, 2017 someone had placed a death threat on
her office desk threatening her and her family and accusing her of being a “snitch b***h.” Her
home was vandalized with shattered glass bottles. Appellant sold her house quickly at a reduced
price because she was afraid. She further asserted that on February 12, 2018 her second-line
supervisor, S.B., called her into his office and informed her that “some extremely vulgar/graphic
images of pornography” altered to resemble her had been placed in various locations at work.
Appellant’s cellphone number was next to the face on the image with instructions to call the
number for a “good time.”
Appellant related that she had filed an Equal Employment Opportunity (EEO) complaint
after receiving the death threat. The Criminal Investigation Division (CID) and military police
(MP) had investigated the threat. They found that some parts of her claim did not deal with
employing establishment issues.
In a March 29, 2018 statement, appellant advised that her claim was for an occupational
disease rather than a traumatic injury. She attributed her condition to harassment, sexual
3

Appellant also submitted medical evidence in support of her claim.

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harassment, a hostile work environment, death threats, vandalism, slander, and defamation of
character.
Thereafter, OWCP received a September 14, 2017 closed investigation report from the CID
of the employing establishment. M.L., the investigator, advised that an individual had placed a
letter on appellant’s desk, noting that “snitches get stitches” and threatening her and her family.
The investigator indicated that appellant “believed [that] the letter and other harassing incidents
were due to [appellant’s] reporting the misuse of [u]nion [f]unds,” but did not know who had put
the letter on her desk. Appellant gave M.L. a flyer showing a social media post accusing her of
making false accusations about the union after partying with union members. M.L. noted that the
former union president had been interviewed about the letter, but could not provide any
information. The investigator advised that the investigation was closed as no “logical leads or
suspects have been discovered….”
In a witness statement dated September 28, 2017, L.P. related that, during a union meeting
on July 6, 2017, R.R. had used profanity and accused appellant of sleeping with another individual.
In a February 6, 2018 e-mail, P.K. confirmed that on July 6, 2017 R.R. had used profanity and
vulgarity regarding appellant.
In a January 11, 2018 interrogatory, appellant related that on July 5, 2017 the local union
had been put under trusteeship after she had requested an external audit that found a
misappropriation of funds. Affected individuals had spread lies about her and placed pictures on
a bulletin board on August 10, 2017. Appellant reported the incident to her supervisor, S.S., who
tried to ascertain whether cameras covered the area. The plant manager, C.S., advised her that it
was a union matter and ignored her concerns. On August 14, 2017 an employee appellant did not
know yelled at her and asked if she was “f**king” the new union leader. On August 17, 2017 at
the start of her work shift, she found a death threat saying that snitches get stitches, that she and
her family would pay, and that she should die because she was a “snitch b***h.” Appellant did
not know who had left the threatening letter on her desk. She immediately reported the incident
to her supervisors.
On February 13, 2018 M.P., the employing establishment commanding officer, partially
dismissed appellant’s September 28, 2017 discrimination complaint. He found that the employing
establishment was not the proper agency for the incidents that had occurred at union meetings on
July 6 and 18, 2017 as well as an August 8, 2017 occurrence when a union vice president had
yelled at her and used profanity outside the workplace as the matters arose out of union concerns.
M.P. also dismissed appellant’s claim that she had to sell her residence on January 10, 2018 due
to vandalism as she had not shown damages by the employing establishment. He noted that an
investigation was pending into the February 12, 2018 placement of a pornographic flyer at work
with her name and cellphone number.
In an undated statement received on April 2, 2018, appellant related that, when she started
work in 2010, G.S., a coworker, had spread rumors that she had worked as a stripper and was a
kind of prostitute of the former manager. G.S. and C.H. had complained about what she wore to
work and her supervisor sent her home to change clothes. In 2012, appellant had undergone
treatment for cancer and G.S. had asserted that she was disgusting and leaving hair in the restroom.
G.S. made a hurtful comment after the death of her brother. On May 3, 2017 appellant requested

3

her supervisor’s help processing a document. When she returned to the office, G.S. and others
thought that it was unfair that she was being trained to process documents accurately.
In an April 27, 2018 letter, OWCP advised appellant that it was adjudicating her claim as
an occupational disease claim. It again requested that she provide the evidence necessary to
establish her claim as set forth in its February 23, 2018 development letter.
In a June 12, 2018 development letter, OWCP requested that the employing establishment
provide comments from a knowledgeable supervisor regarding the accuracy of appellant’s
allegations and statements from the individuals referenced in the allegations, including G.S., R.R.,
C.L., B.S., and E.C. It further requested that it clarify whether she was on official time for the
July 6, 2017 union meeting or any of the other dates that involved union matters.
In a June 27, 2018 response, the employing establishment maintained that appellant’s
issues had begun over union matters and, thus, it had no authority to take corrective measures. It
noted that it was unaware of the findings of the CID, but that “no person was culpable in any
wrong-doing based on her allegations.” The employing establishment enclosed statements with
its response.
In a June 25, 2018 statement, C.L. advised that she was not at the July 6, 2017 union
meeting and had no knowledge of false union minutes posted on a bulletin board.
R.R. submitted a June 21, 2018 statement denying he was at the July 6, 2017 meeting and
advising that he had no knowledge of anyone placing union information on a bulletin board at
work. He indicated that he did not know whether appellant had used official time for the July 6,
2017 union meeting or other union activity.
In an undated statement, B.S. asserted that R.R. had not raised his voice or accused her of
sexual impropriety. He denied that anyone had posting false minutes of union meetings on the
bulletin board. B.S. also denied using vulgarity in reference to appellant.
In a June 28, 2018 statement, R.V. advised that on July 10, 2017 appellant had notified her
that “somebody had posted something bad about [appellant] on the bulletin board” and that R.R.
had stated inappropriate things about her at a union meeting. She did not want to file a complaint.
R.V. advised her to contact C.S., the plant manager. C.S. had informed her that he could
investigate who posted something on a bulletin board if she provided names, but that he had no
control over things that took place in union meetings. Appellant did not want to give the
individuals’ names.
By decision dated July 12, 2018, OWCP denied appellant’s emotional condition claim. It
found that she had not established any compensable employment factors.
On July 21, 2018 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In an incident report dated September 18, 2018, appellant related that her coworker’s car,
which she had driven to work, had been vandalized in the parking lot. The officer noted that the

4

coworker believed that it had been vandalized because appellant had been driving it as she had
previously received threats due to whistleblowing in connection with union activity.
On December 7, 2018 appellant submitted a time and attendance screenshot, which she
asserted showed that she was in regular work status and not on leave or on official time on
August 17, 2017 and February 12, 2018.
A telephonic hearing was held on December 14, 2018. Appellant’s representative asserted
that she had experienced retaliation after reporting misconduct. He noted that on February 10,
2018 her supervisor told her that material “offensive to any person” had been found and distributed
to multiple locations throughout the base. Appellant also received death threats and had her car
vandalized. He related that she was at work and was not conducting union matters or on official
time when the harassment, death threat, and car vandalism had occurred. Appellant testified that,
on August 17, 2017 S.S., her first-line supervisor, had called security about the death threat. The
MPs arrived and turned the case over to the CID because it involved a death threat. Appellant had
not experienced problems prior to reporting the misappropriation of funds, so she believed that the
incidents were connected. The union vice-president made inappropriate comments to her on
August 8, 2017 after work hours, but on the premises of the employing establishment. Coworkers
heard rumors that appellant was sleeping around. A coworker’s car was vandalized in
August 2018 on base after she drove the vehicle. G.S., a coworker, spread rumors that appellant
had been a former manager’s private stripper. Appellant related that she saw R.R., the former
union president, every day because he worked in a nearby cubicle. She asserted that, when she
returned to work after being off due to stress, the pictures of her were still being passed around the
office.
Following the hearing, appellant submitted a copy of the threatening letter and the
pornographic photographs. She also submitted an August 17, 2017 e-mail from R.S.,4 the plant
manager, advising that on that date a note had been left on an employee’s computer threatening
the employee and family, and that information about the employee had also been placed on an
official bulletin board in violation of rules and policy. R.S. advised that an investigation was
currently being conducted to find the person or persons responsible.
On August 17, 2017 S.S. advised that on that date appellant had showed her a paper that
contained “clearly a written threat of harassment stating harm to [appellant] and her family.” She
had called the MPs and also emergency personnel because appellant required medical attention.
The MPs had contacted CID because the threat was “above what he is allowed to process.” The
CID agent had possession of a picture of appellant with a harassing caption from the union bulletin
board.
In a February 13, 2018 e-mail to the employing establishment, R.S. advised that
pornographic images of an employee had been placed at multiple locations throughout the
workstation. He indicated that the conduct would not be tolerated and was being investigated.

4

R.S. is also referred to in the record by his nickname, C.S.

5

By decision dated May 10, 2019, OWCP’s hearing representative affirmed the July 12,
2018 decision, finding that the events that appellant had established as factually occurring
pertained to union matters unrelated to the performance of her federal work duties.
On December 2, 2019 appellant, through counsel, requested reconsideration.
By decision dated March 12, 2020, OWCP denied modification of the May 10, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, 6 including that he or she sustained an injury in the
performance of duty, and that any specific condition or disability f or work for which he or she
claims compensation is causally related to that employment injury. 7 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on a
traumatic injury or an occupational disease.8
To establish an emotional condition in the performance of duty, a claimant must submit:
“(1) factual evidence identifying an employment factor or incident alleged to have
caused or contributed to his or her claimed emotional condition; (2) medical
evidence establishing that he or she has a diagnosed emotional o r psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the
accepted compensable employment factors are causally related to the diagnosed
emotional condition.”9
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable. 10 However, disability is not compensable when it results from factors such as an

5

Supra note 2.

6

S.S., Docket No. 19-1021 (issued April 21, 2021); O.G., Docket No. 18-0359 (issued August 7, 2019); J.P., 59
ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).
7

S.S., id.; G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

20 C.F.R. § 10.115; M.K., Docket No. 18-1623 (issued April 10, 2019); Michael E. Smith, 50 ECAB 313 (1999).

9

See S.K., Docket No. 18-1648 (issued March 14, 2019); Donna Faye Cardwell, 41 ECAB 730 (1990).

10

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).

6

employee’s fear of a reduction-in-force, or frustration from not being permitted to work in a
particular environment, or to hold a particular position.11
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur. 12
Mere perceptions of harassment are not compensable under FECA. 13
The Board has adhered to the principle that union activities are personal in nature and are
not considered to be within the course of employment. 14 Attendance at a union meeting, for
example, is exclusively for the personal benefit of the employee and devoid of any mutual
employer-employee benefit that would bring it within the course of employment. 15
However, the Board has recognized an exception to this general rule when employees
performing representational functions, which entitle them to official time, are injured when in the
performance of duty. 16 The underlying rationale for this exception is that an activity undertaken
by an employee in the capacity of a union official may simultaneously serve the interest of the
employer.17 OWCP’s procedures indicate that representational functions include authorized
activities undertaken by employees on behalf of other employees pursuant to such employees’
right to representation under statute, regulation, executive order, or terms of a collective bargaining
agreement.18
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered. 19 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a

11

Lillian Cutler, id.

12

S.L., Docket No. 19-0387 (issued October 1, 2019); S.B., Docket No. 18-1113 (issued February 21, 2019).

13

Id.

14

R.L., Docket No. 18-1375 (issued May 1, 2019); Jimmy E. Norred, 36 ECAB 726 (1985).

15

R.L., id; J.G., Docket No. 17-1948 (issued September 13, 2018).

16

J.G., id.; R.F., Docket No. 14-0770 (issued September 29, 2015) (those on official time performing activities
related to the internal business of a labor organization such as soliciting new members or collecting dues are not
considered to be in the performance of duty. The singular fact that one is on paid official time for union representation
is not enough to establish that every interaction during such official time is within the performance of duty).
17

J.G., id.; Marie Boylan, 45 ECAB 338 (1994).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16(b) (July 1997).

19

See R.B., Docket No. 19-0434 (issued November 22, 2019); O.G., supra note 6.

7

compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence. 20
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has not attributed her condition to the performance of her regularly or specially
assigned duties under Cutler.21 Instead, she maintained that she experienced harassment at work
after she had reported financial impropriety by the union in her role as union secretary and
treasurer.
There is no dispute that on August 17, 2018 someone placed a threatening letter on
appellant’s work desk. Appellant’s supervisor confirmed that appellant had received the
threatening letter and called the MPs, who contacted the CID. The Board has held that verbal and
written threats, when sufficiently detailed by the claimant and suppo rted by evidence, may
constitute compensable employment factors. 22 Appellant has established with corroborating
evidence that she received written threats made against her and her family. The Board has
recognized the compensability of threats when the factual aspects of such claimed threats are
established. 23 The Board finds that the letter left on appellant’s desk, which threatened her with
death and also threatened her family, rises to the level of a credible bodily threat. 24 Consequently,
the Board finds that she has established a compensable employment factor with regard to the death
threat.25
Appellant also attributed her condition to the placement of pornographic pictures
purporting to be of her, noting her cellphone number, in multiple locations around her worksite on
February 12, 2018. Harassment and discrimination by supervisors and coworkers, if established
as occurring and arising from the performance of work duties, can constitute a compensable work
factor.26 A claimant, however, must substantiate allegations of harassment and discrimination with
probative and reliable evidence. 27
Appellant maintained that on February 12, 2018 her second-line supervisor, S.B., told her
that vulgar and graphic images altered to resemble her had been placed throughout the work
20

Id.

21

Supra note 11.

22

J.W., Docket No. 17-0999 (issued September 4, 2018).

23

See K.W., Docket No. 20-1504 (issued July 30, 2021); Z.S., Docket No. 16-1783 (issued August 16, 2018).

24

See M.R., Docket No. 17-1803 (issued February 8, 2019) (finding that a statement made directly to the claimant
that he would be “among the nonliving” was a credible bodily threat directed at the claimant).
25

See J.Z., Docket No. 19-1156 (issued July 28, 2020).

26

See M.S., Docket No. 19-1589 (issued October 7, 2020).

27

See A.F., Docket No. 29-0525 (issued September 14, 2020); Robert Breeden, 57 ECAB 622 (2006).

8

location. In a February 13, 2018 e-mail to the employing establishment, R.S., the plant manager,
advised that pornographic pictures had been placed throughout work and asserted that the conduct
would not be tolerated. While appellant expressed her belief that the images were placed around
work as retaliation for union whistleblowing activities, there is no evide nce of record from the
employing establishment identifying the perpetrator. The incident occurred while appellant was
performing her employment duties rather than union activities and the images were placed
throughout the work location. The evidence factually supports that a coworker placed graphic and
vulgar images of a sexual nature purporting to be of appellant around her work location and, thus,
she has established a compensable work factor. 28
Appellant further attributed her condition to R.R. yelling at her and accusing her of sleeping
with the new union head at a July 6, 2017 union meeting. She related that she had uncovered
financial irregularities and had called for an outside audit of the union and , as a result, the union
had been placed under Trusteeship. When officials arrived to take control of the union, R.R. yelled
at her and used profanity. Appellant maintained that on August 10, 2017 union members angry
about the audit had posted false union minutes and photographs of her on the bulletin board at
work. She advised that R.R.’s friends spread rumors about her around the office. Appellant has
not alleged that she was performing representational functions or was on official union time at the
time of these incidents. As there is no connection between these incidents and her employment,
the actions taken by the union members in reaction to the investigation and audit did not occur in
the performance of duty and are not compensable under FECA. 29
Appellant maintained that on July 18, 2017 her car was scratched and that on
September 18, 2018 a coworker’s car that she had driven was vandalized. She also asserted that
her home was vandalized. Appellant, however, has not submitted any evidence establishing that
these incidents occurred as part of her employment duties or evidence that the vandalism was the
result of harassment by coworkers. 30 Thus, she has not established a compensable work factor.
Appellant also maintained that a coworker had approached her and asked her about rumors
of a sexual nature circulating about her and that after work on August 8, 2017 B.S. called her a
whore and liar. She further alleged that a coworker, G.S., had accused her of being a stripper, told
others that the hair in the restroom was from her and that she was disgusting, attacked her for
speaking with her supervisor for guidance, complained about her work clothes, and made an
unkind comment when her brother passed away. Appellant, however, has not provided any
evidence such as witness statements supporting her allegations of harassment by either of the
unknown coworkers, B.S. or G.S.31 Consequently, she has not established a compensable work
factor with respect to these allegations. 32

28

See I.D., Docket No. 16-0581 (issued December 12, 2016).

29

Id.

30

See J.B., Docket No. 070664 (issued September 13, 2007).

31

Id.

32

See L.S., Docket No. 18-1471 (issued February 26, 2020); S.B., Docket No. 11-0766 (issued October 20, 2011).

9

The case will, therefore, be remanded for an evaluation of the medical evidence to
determine whether appellant has established an emotional condition causally related to the
compensable employment factors. 33 Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proc eedings
consistent with this decision of the Board.
Issued: March 18, 2022
Washington, DC

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

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

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

33

See D.B., Docket No. 19-1310 (issued July 21, 2020).

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
DEPARTMENT OF THE NAVY, AIR
SYSTEMS COMMAND, Cherry Point, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1359
Issued: November 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 29, 2014 appellant filed a timely appeal from an April 8, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his claim for a schedule award
and denying authorization for hearing aids. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are: (1) whether appellant sustained a ratable hearing loss causally related to
factors of his federal employment; and (2) whether OWCP properly denied authorization for
hearing aids.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In an order dated November 25, 2011,
the Board set aside a November 18, 2010 OWCP decision rescinding acceptance of appellant’s
claim for bilateral hearing loss on the grounds that the claim duplicated a previously accepted
April 1998 hearing loss claim, assigned file number xxxxxx353.2 The Board also set aside a
January 6, 2011 nonmerit decision denying his request for reconsideration. The Board found that
the record for file number xxxxxx353 was not of record and, therefore, the basis for the
rescission was not subject to review. The Board remanded the case for OWCP to combine the
evidence from file number xxxxxx353 with the current case record. By decision dated
January 3, 2013, the Board affirmed in part and set aside in part a June 1, 2012 decision denying
appellant’s claim for a schedule award due to hearing loss and denying authorization for hearing
aids.3 The Board reviewed OWCP’s 1998 finding in file number xxxxxx353 that appellant’s
hearing loss was not severe enough to be ratable. The Board noted that OWCP had combined
the current file with file number xxxxxx353 and again accepted that appellant sustained bilateral
hearing loss based on the December 27, 2011 report of Dr. Robert H. Hosea, a Board-certified
otolaryngologist and OWCP referral physician. The Board found that OWCP properly
determined that the increase in his hearing loss after the April 1998 acceptance of his claim was
not work related. The Board affirmed OWCP’s denial of appellant’s schedule award based on its
determination that his hearing loss was not ratable and that the subsequent increase in hearing
loss did not result from his federal employment. The Board determined, however, that appellant
might still be entitled to hearing aids and remanded the case for further development of this
issue. The facts and circumstances from the prior decisions and order are hereby incorporated by
reference.
On January 29, 2013 an OWCP medical adviser reviewed the medical evidence and
stated, “In summary, it appears that this claimant has a hearing loss that is due in part to
workplace noise exposure, but that this loss if nonratable. On that basis, hearing aids are not
authorized. Any hearing loss experienced by this claimant following his retirement [is] not
related to his federal employment.”
In a decision dated March 1, 2013, OWCP denied authorization for hearing aids.
On December 18, 2013 appellant requested reconsideration of the denial of his schedule
award claim. He listed the evidence submitted in support of his request. Appellant submitted
statements previously submitted on a prior appeal to the Board, a March 10, 2010 report from
Dr. Charles Beasley, a Board-certified otolaryngologist and OWCP referral physician, and a
May 3, 2012 report from Dr. Paul S. Camnitz, a Board-certified otolaryngologist. He also
submitted a November 11, 2009 audiogram.

2

Order Remanding Case, Docket No. 11-804 (issued November 25, 2011).

3

Docket No. 12-1482 (issued January 3, 2013). On December 3, 2009 appellant, then a 68-year-old retired jet
engine mechanic, filed an occupational disease claim alleging that he sustained hearing loss due to noise exposure in
the course of his federal employment. He was last exposed to the employment factors identifying as causing his
condition on September 1, 1995.

2

In a letter dated January 30, 2013, appellant argued that OWCP did not take any action on
his prior hearing loss claim, assigned file number xxxxxx353. He related that he obtained his
records from the employing establishment but received nothing regarding an accepted claim.
Appellant stated that he was last exposed to hazardous noise and jet engines in 1981, not 1995.
He noted that Dr. Beasley and Dr. Hosea shared an audiologist and alleged that Dr. Hosea lied
and violated the privacy act by sharing his records.
On February 10, 2014 appellant related that when he began work there was no hearing
conservation program. He asserted that the opinion of Dr. Jonathan R. Workman, a Boardcertified otolaryngologist, supported that his current hearing loss and tinnitus resulted from his
noise exposure.
Appellant resubmitted audiograms from the employing establishment
commencing in 1965.
In a report dated April 8, 2013, Dr. Workman related that appellant had “decreased
hearing and tinnitus starting back when he had noise exposure years ago when he worked with
the [employing establishment].” He stated that audiograms obtained on that date showed “a
modest hearing loss throughout mid and high frequencies. This would all be consistent with
multifactorial hearing loss problems. Certainly, noise exposure can play a key role in this
hearing loss. I think that he would do well to benefit from a hearing aid.” Dr. Workman
diagnosed bilateral high and mid frequency sensorineural hearing loss due to noise exposure,
diabetes, hypertension and presbycusis.
By letter dated February 11, 2014, appellant challenged OWCP’s finding that he had a
claim accepted in 1998. He related that he went to see Dr. Beasley in 1998 on his own and
provided him with his own records. Appellant maintained that OWCP violated his privacy by
obtaining his records and made false statements.
On February 13, 2014 appellant requested reconsideration of the March 1, 2013 decision.
By decision dated April 8, 2014, OWCP denied modification of its denial of appellant’s
schedule award claim and its March 1, 2013 decision denying hearing aids.
LEGAL PRECEDENT -- ISSUE 1
FECA4 provides compensation for both disability and physical impairment. “Disability”
means the incapacity of an employee, because of an employment injury, to earn the wages the
employee was receiving at the time of injury.5 In such cases, FECA compensates an employee
for loss of wage-earning capacity. In cases of physical impairment, FECA, under section
8107(a), compensates an employee, pursuant to a compensation schedule, for the permanent loss
of use of certain specified members of the body, regardless of the employee’s ability to earn
wages.6
4

5 U.S.C. § 8101 et seq.

5

Lyle E. Dayberry, 49 ECAB 369 (1998).

6

Renee M. Straubinger, 51 ECAB 667 (2000).

3

A claimant seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence; it is thus the claimant’s burden to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of his or her employment injury
entitling him or her to a schedule award.7
Regarding progression of hearing loss, OWCP’s procedures provide, “Noise-induced
hearing loss does not typically progress after exposure to noise ceases. A claimant with an
audiogram showing less than a 25 decibel loss soon after exposure ceases and a second
audiogram showing a ratable loss may be denied if the DMA [district medical adviser] provides
a well-reasoned opinion.”8
ANALYSIS -- ISSUE 1
In a decision dated January 3, 2013, the Board affirmed OWCP’s finding that the
evidence was insufficient to establish that appellant sustained an increase in hearing loss after
1998 as a result of noise exposure during the course of his federal employment. It found that the
May 21, 2012 report from Dr. Hosea, an OWCP referral physician, constituted the weight of the
medical evidence and established that the deterioration in his hearing after 1998 was not work
related.
Appellant submitted a May 2, 2012 report from Dr. Camnitz and the results from prior
audiograms. The Board, however, previously considered this same evidence and found that it
was insufficient to outweigh the report of Dr. Hosea or to create a conflict in medical opinion.
Appellant submitted a March 10, 2010 report from Dr. Beasley, an OWCP referral
physician, who found that his bilateral sensorineural hearing loss due to noise exposure;
however, he did not address the issue of whether appellant’s hearing loss after 1998 resulted
from job-related noise exposure prior to that date.
In a report dated April 8, 2013, Dr. Workman interpreted audiograms as showing a
modest hearing loss in the mid and high frequencies. He discussed appellant’s history of noise
exposure years ago. Dr. Workman attributed his hearing loss to multiple issues, including noise
exposure. He recommended hearing aids. Dr. Workman did not, however, address whether
appellant’s increase in hearing loss after 1998 resulted from job-related noise exposure prior to
that date. Thus, his opinion is of diminished probative value.
As discussed, hearing loss does not usually progress after noise exposure ceases.9 At the
time of his retirement in 1995, appellant’s hearing loss was not significant enough to be ratable.
After comparing audiometric testing in 1995 with current audiometric testing, Dr. Hosea, an
OWCP referral physician, determined that the progression of his hearing loss was not
employment related but instead due to presbycusis. Appellant did not submit a report addressing
7

See Veronica Williams, 56 ECAB 367 (2005); Annette M. Dent, 44 ECAB 403 (1993).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(3) (January 2010).

9

Id.

4

his work stoppage in 1995 or explaining why his subsequent increase in hearing loss resulted
from noise exposure during the course of his employment. Consequently, he has not met his
burden of proof.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of FECA10 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability or aid in lessening the amount of monthly compensation.11
OWCP must therefore exercise discretion in determining whether the particular service,
appliance or supply is likely to affect the purposes specified in FECA.12
Following medical evaluation of a claim, if the hearing loss is determined to be
nonratable for schedule award purposes, other benefits such as hearing aids may still be payable
if any employment-related hearing loss exists.13
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision regarding whether OWCP
should authorize hearing aids. On prior appeal, the Board noted that Dr. Hosea, the second
opinion physician, recommended that hearing aids be authorized and the medical adviser did not
sufficiently explain why hearing aids should not be authorized.
In a report dated January 29, 2013, an OWCP medical adviser recommended that OWCP
deny appellant’s request for hearing aids because the hearing loss that occurred subsequent to the
cessation of his noise exposure was not ratable. He opined that the hearing loss sustained
following appellant’s retirement was unrelated to his federal employment. As noted by the
Board, however, if hearing loss is determined to be nonratable for schedule award purposes,
other benefits such as a hearing aid may still be provided if any causally related hearing loss
exists.14 Consequently, as OWCP has not provided an acceptable reason for denying
authorization for hearing aids, the Board finds that the case must be remanded for further
development on this issue. Following this and other such development as deemed necessary, it
should issue a de novo decision.
10

5 U.S.C. § 8101 et seq.

11

Id. at § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

12

Id. at § 8103.

13

See F.D., Docket No. 10-1175 (issued January 4, 2011); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Medical Services and Supplies, Chapter 3.400.3(d)(2) (October 1995).
14

Id.

5

CONCLUSION
The Board finds that appellant has not established that he sustained a ratable hearing loss
causally related to factors of his federal employment. The Board further finds that the case is not
in posture for decision regarding whether OWCP properly denied authorization for hearing aids.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: November 20, 2014
Washington, DC

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

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

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

6


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

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

Docket No. 20-1137
Issued: September 30, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 7, 2020 appellant filed a timely appeal from an April 13, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees ’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $7,096.35 because she concurrently received Office of Personnel Management (OPM)
1
The Board notes that following the April 13, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

retirement benefits and FECA wage-loss compensation for the period June 18 through
September 14, 2019 without an appropriate offset; and (2) whether OWCP properly found that
appellant was at fault in the creation of the overpayment, thereby precluding waiver of recovery
of the overpayment.
FACTUAL HISTORY
On October 21, 2003 appellant, then a 53-year-old postal clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed right shoulder pain and tenderness due to
factors of her federal employment, including throwing magazine bundles, parcels, and bags. She
did not stop work. OWCP assigned that claim OWCP File No. xxxxxx144 and, on August 6, 2004,
accepted the claim for right shoulder rotator cuff tear and aggravation of degenerative rotator cuff
disease under OWCP File No. xxxxxx144. Appellant underwent right shoulder surgery for torn
rotator cuff, subacromial bursitis, acromioclavicular (AC) joint pain, fraying biceps tendon, and
anterior acromial spur on January 9, 2007. She stopped work on January 8, 2007 and returned to
work in a modified clerk position for four hours a day beginning on June 10, 2007. On
November 14, 2007 OWCP expanded its acceptance of appellant’s claim under OWCP File No.
xxxxxx144 to include adhesive capsulitis of the right shoulder. On May 22, 2008 appellant again
stopped work and underwent additional right shoulder surgery due to adhesions and severe
subacromial bursitis. She returned to work four hours a day on August 11, 2008 and on October 6,
2008 was released to work six hours a day with restrictions regarding her right arm. Beginning
May 26, 2010, OWCP paid appellant wage-loss compensation on the periodic rolls for her loss of
earning capacity of two hours a day effective May 9, 2010.
On February 2, 2017 appellant filed a traumatic injury claim (Form CA-1) alleging that on
that date she strained her left shoulder when pulling and lifting tubs of mail while in the
performance of duty. She continued to perform limited-duty work with restrictions. OWCP
assigned that claim OWCP File No. xxxxxx801and on April 14, 2017 OWCP accepted it for left
shoulder strain/sprain and tear of the supraspinatus tendon, left shoulder, rotator cuff. On June 27,
2017 appellant underwent left shoulder arthroscopy with subacromial decompression, bursectomy,
biceps tenotomy, and debridement of the torn labrum. 3
In a letter dated November 15, 2017, OWCP advised appellant of her weekly compensation
rate on the periodic rolls. It further informed her that she must report any retirement income
received from any federal agency, as federal employees who receive wage-loss compensation
benefits under FECA are not permitted to concurrently receive benefits under certain other federal
programs, including the Civil Service Retirement System (CSRS) or the Federal Employees
Retirement System (FERS).
In a July 1, 2019 letter, the employing establishment informed OWCP that appellant had
voluntarily retired effective June 18, 2019. It noted that she retired under FERS and was entitled
to receive Social Security Administration (SSA) age-related retirement benefits.

3
On August 21, 2017 OWCP administratively combined OWCP File Nos. xxxxxx144 and xxxxxx801, with the
latter serving as the master file.

2

On July 1, 2019 OWCP provided appellant with an election of benefits form. On July 15,
2019 it received an election of benefits form, signed by appellant on July 8, 2019 in which she
indicated that, effective June 18, 2019, she was electing to receive benefits from FECA.
In a November 29, 2019 letter, OWCP requested that OPM address whether appellant was
currently receiving OPM retirement benefits. In a separate letter of even date, it informed appellant
that she had elected to receive FECA benefits, effective June 18, 2019, and requested that she
confirm whether this election was correct.
On January 14, 2020 OWCP received an election of benefits form, signed by appellant on
December 16, 2019, in which she indicated that, effective June 18, 2019, she elected to receive
OPM retirement benefits in lieu of any benefits, which she might be entitled to under FECA.
Appellant reported that a lump-sum annuity had not been paid from OPM as part of an alternative
annuity under CSRS, or as part of the death benefit under FERS.
OPM responded to OWCP’s request for information on January 14, 2020 and noted that it
had received an application for retirement benefits from appellant with an effective date of June 18,
2019, but that as of January 14, 2020 no retirement benefits had been paid.
In a February 27, 2020 memorandum to file, OWCP noted that OPM had not yet started
paying benefits, but that it planned to proceed with the preliminary overpayment determination as
appellant had continued to receive wage-loss compensation on the periodic rolls after
June 18, 2019.
On February 27, 2020 OWCP issued a preliminary overpayment determination that an
overpayment of compensation was created in the amount of $7,096.35 because appellant received
prohibited dual benefit payments for the period June 18 through September 14, 2019. It explained
that the overpayment occurred because she concurrently received both FECA benefits and OPM
retirement benefits during this period. OWCP found appellant at fault in the creation of the
overpayment because she accepted a payment that she knew or reasonably should have known, to
be incorrect. OWCP provided her an overpayment action request form and an overpayment
recovery questionnaire (Form OWCP-20) and afforded her 30 days to respond. Appellant did not
respond.
By decision dated April 13, 2020, OWCP finalized the preliminary overpayment
determination, finding that appellant received an overpayment of compensation in the amount of
$7,096.35 for the period June 18 through September 14, 2019 and that she was at fault in the
creation of the overpayment, thereby precluding waiver of recovery of the overpayment. It
requested that she repay the overpayment in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment. 4 Section 8116 limits the right of an employee to receive compensation:
4

5 U.S.C. § 8102(a).

3

While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States. 5
Section 10.421(a) of OWCP’s implementing regulations provides that a beneficiary may
not receive wage-loss compensation concurrently with a federal retirement or survivor annuity. 6
The beneficiary must elect the benefit that he or she wishes to receive. 7 OWCP’s procedures also
explain that the employee must make an election between FECA benefits and OPM benefits. The
employee has the right to elect the monetary benefit which is the more advantageous. This policy
also applies to reemployed annuitants. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $7,096.35 for the period June 18 through
September 14, 2019.
OWCP based its overpayment finding on its determination that appellant had received a
prohibited dual benefit by receipt of OPM and FECA benefits for the period June 18 through
September 14, 2019. While the record reflects that she received FECA wage-loss compensation
for this period, the Board finds that OWCP has not established that she also received OPM benefits
for this same period.9
On December 16, 2019 appellant elected OPM retirement benefits, effective June 18, 2019,
in lieu of FECA benefits. However, there is no evidence of record which establishes that OWCP
or OPM received the election forms prior to December 16, 2019. On January 14, 2020 OPM noted
that it had received an application for retirement benefits from appellant with an effective date of
June 18, 2019, but that as of January 14, 2020 no retirement benefits had been paid. Furthermore,
on February 27, 2020 OWCP noted that OPM had not yet started paying benefits. OWCP was,
therefore, aware that appellant had not received OPM benefits for the period in question to
establish that her receipt of FECA benefits amounted to prohibited dual benefits.10 The Board has
previously held that the mere fact that a claimant received FECA benefits after the effective date
of an OPM election will not establish receipt of a prohibited dual benefit.11 While the record

5

Id. at § 8116.

6

20 C.F.R. § 10.421(a).

7

Id.

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (January 1997); R.S.,
Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued March 30, 1994).
9

L.H., Docket No. 19-1485 (issued August 14, 2020); R.R., Docket No. 18-0032 (issued May 3, 2018).

10

Id.

11
V.B., Docket No. 19-1874 (issued June 4, 2020); J.A., Docket No. 18-0259 (issued August 5, 2019); M.C., Docket
No. 18-0074 (issued August 1, 2019).

4

reflects that appellant received FECA benefits for this period, the Board finds that OWCP had not
established that she also received OPM retirement benefits for that same period. 12
The Board, thus, finds that OWCP improperly determined that appellant received an
overpayment in the amount of $7,096.35 for the period June 18 through September 14, 2019.13
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation. 14
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: September 30, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

12

Id.

13

G.M., Docket No. 17-0784 (issued August 23, 2017); D.O., Docket No. 15-1004 (issued July 28, 2015).

14

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 09-1804
Issued: June 23, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 7, 2009 appellant filed a timely appeal from a June 18, 2009 nonmerit decision of
the Office of Workers’ Compensation Programs denying his request for reconsideration and a
February 24, 2009 merit decision denying his claim for an increased schedule award. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has established more than 50 percent permanent
impairment of his right eye, for which he received a schedule award; and (2) whether the Office
properly denied his request to reopen his case for further review of the merits under 5 U.S.C.
§ 8128.
FACTUAL HISTORY
On July 23, 1996 appellant, then a 43-year-old file clerk, filed a claim for a right eye
condition. He indicated that, while using a defective drill press from October 1994 to

April 1995, his right eye was penetrated by a metal object. The Office accepted the claim for
pseudophakia, old retinal detachment, removal of intraocular foreign body and deep vein
thrombosis of the left lower leg. The claim was expanded to include precipitation of primary
open angle glaucoma and precipitation of ocular hypertension. Appellant underwent right eye
surgeries on January 12, 1996 and December 12, 1998. The Office paid compensation benefits.
On September 27, 2004 appellant filed a claim for a schedule award. By decision dated
February 15, 2005 and amended on March 25, 2005, the Office granted appellant a schedule
award for 15 percent permanent impairment of his right eye. Appellant requested a hearing. By
decision dated March 7, 2006, an Office hearing representative found the schedule award
decision premature as the schedule award was based on visual acuity with correction. The case
was remanded for recalculation of the impairment rating of the right eye without regards to
correction.
After receipt of a supplemental report from Dr. Robert L. Peets, an ophthalmologist and
Office referral physician, the Office awarded appellant a schedule award for an additional 19
percent permanent impairment to the right eye, for a total impairment of 34 percent, in a May 16,
2006 decision. Appellant disagreed with the decision and requested a hearing. By decision
dated January 12, 2007, an Office hearing representative set aside the May 16, 2006 decision and
remanded the case to the Office for further medical development. The Office was directed to
give appellant due process in providing the medical evidence necessary to establish impairment
of the right eye based on uncorrected visual acuity. It was also directed to refer appellant for a
second opinion evaluation.
In a January 25, 2007 letter, appellant and his physician were advised of the necessary
evidence needed to establish impairment under the fifth edition of the American Medical
Associations, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).
They were advised that loss of vision was based on uncorrected visual acuity.
In a February 26, 2007 report, Dr. Roger H.S. Langston, a Board-certified
ophthalmologist, advised that appellant reached maximum medical improvement in his right eye
in December 2002 after he had cataract surgery and a “YAG capsulotomy of capsulotomy of
capsule opacity” that occurred after the cataract surgery. He advised the cataract surgery was
necessitated by the injury. Dr. Langston indicated that currently appellant’s injured eye was
stable with glaucoma, adequately controlled by medication and intermittent mild iritis, probably
related to the original injury. He indicated that he examined appellant on February 23, 2007 and
appellant’s uncorrected visual acuity was 20/80+2 in the right eye at distance. At near, reading
distance, it was J5 on the right. Dr. Langston noted that, with corrective spectacle lenses, the
visual acuity in the right eye was 20/20. He opined that appellant had no further disability
although the glaucoma and occasional iritis in the injured right eye may require further treatment
in the future.
In a March 22, 2007 report, Dr. James G. Ravin, a Board-certified ophthalmologist and
Office medical adviser, indicated the history of the injury and his review of Dr. Langston’s
February 26, 2007 report. He indicated that the information provided did not include visual
fields which are a part of the A.M.A., Guides. Under Tables 12-2 and 12-3, Dr. Ravin opined

2

that appellant had zero percent impairment. However, he noted recalculation may be necessary
if he was provided with visual fields that indicate a defect.
On April 17, 2007 the Office wrote Dr. Langston and requested information pertaining to
visual fields. On May 3, 2007 it received copies of appellant’s single field analysis done
September 22, 2006. On May 4, 2007 the Office denied appellant’s claim for an increased award
on the basis that the requested information pertaining to appellant’s visual fields were not
provided. On May 7, 2007 it requested that appellant disregard its May 4, 2007 decision as it
had received the requested information and was sending it to its Office medical adviser for
finalization of his impairment rating.
In a May 14, 2007 letter, Dr. Ravin, the Office medical adviser, indicated that the visual
field analysis failed to provide any evidence that appellant had glaucoma and no defect was
noted. He stated that his opinion remained that appellant had no impairment. In a June 20, 2007
report, Dr. Ravin advised that appellant’s uncorrected visual acuity was 20/200 in the right eye
and 20/80 in the left eye. He indicated that this gave appellant a visual acuity score of 50 for the
right eye and 70 for the left eye, which corresponded to an overall functional acuity score of 66
and an impairment rating of 34 percent based on uncorrected visual acuity.
On July 9, 2007 the Office denied an additional schedule award for permanent
impairment of the right eye based on the Office medical adviser’s opinion. In a March 14, 2008
decision, an Office hearing representative vacated the July 9, 2007 decision. She requested that
the Office medical adviser provide a fully-reasoned supplemental report, based on appellant’s
uncorrected vision measurements, for the visual acuity impairment rating for appellant’s right
eye only, that cited the page, table and figure numbers of the A.M.A., Guides which supported
his calculations.1
The Office requested its medical adviser provide a supplemental report. In an April 22,
2008 supplemental report, Dr. Ravin indicated that his calculations were made based on Chapter
12, visual system, page 284 of the fifth edition of the A.M.A., Guides. He advised that
appellant’s visual acuity has been affected in his right eye by a retinal detachment. Dr. Ravin
stated that previous calculations using the A.M.A., Guides relied on Tables 12-2 and 12-3. He
stated that the computation was based on uncorrected visual acuities and when recalculated they
came out the same. Dr. Ravin stated that appellant’s right eye had an uncorrected visual acuity
of 20/200 which was a visual acuity score of 50 and a visual acuity impairment rating of 50
percent for that eye alone.
In an August 12, 2008 decision, the Office awarded appellant 16 percent additional
permanent impairment of the right eye, for a total impairment of 50 percent. Appellant requested
a telephonic hearing that was held on December 10, 2008. He testified that he was blind in his
right eye and that he regained sight in the eye through an artificial means. Appellant’s attorney
argued that appellant should be entitled to a schedule award for 100 percent impairment to the
right eye. Dr. Ravin stated that appellant has no vision in his right eye without correction. In a
January 15, 2009 letter, appellant’s attorney reiterated that appellant should be entitled to a
schedule award for 100 percent impairment to the right eye.
1

A hearing was held on December 20, 2007.

3

By decision dated February 24, 2009, an Office hearing representative affirmed the
Office’s August 12, 2008 decision.
In an April 6, 2009 letter, appellant’s attorney requested reconsideration of the
February 24, 2009 decision. He quoted another case where a claimant was awarded 100 percent
loss of vision of the right eye when the right eye was removed. Counsel argued that appellant’s
total loss of vision in the right eye was the same as the total removal of the eye.
By decision dated June 18, 2009, the Office denied appellant’s request for
reconsideration finding that as he did not raise any substantive legal questions or include any
new and relevant evidence his request was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage of loss shall
be determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.4
In determining the amount of a schedule award, preexisting permanent impairment of that
scheduled member or function should also be included.5 Section 8107(c)(19) of the Act provides
that the degree of loss of vision or hearing under this schedule is determined without regard to
correction.6 A permanent visual impairment is defined by the A.M.A., Guides as a permanent
loss of vision that remains after maximal medical improvement of the underlying medical
condition has been reached.7 The A.M.A., Guides indicate that the evaluation of visual
impairment is based on the functional vision score (FVS), which is the combination of an

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.404.

4

Ronald R. Kraynak, 53 ECAB 130 (2001).

5

See, e.g., Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3.b (June 1993).
6

5 U.S.C. § 8107(c)(19).

7

A.M.A., Guides 278 (5th ed. 2001).

4

assessment of visual acuity; the ability of the eye to perceive details necessary for activities such
as reading and an assessment of visual field; and the ability of the eye to detect objects in the
periphery of the visual environment, which relates to orientation and mobility.8 The A.M.A.,
Guides also allow for individual adjustments for other functional deficits, such as contrast and
glare sensitivity, color vision defects and binocularity, stereopsis, suppression and diplopia, only
if these deficits are not reflected in a visual acuity or visual field loss.9 However, the A.M.A.,
Guides specifically limit adjustment of the impairment rating for these deficits to cases which are
well documented and states that the adjustment should be limited to an increase in the
impairment rating of the visual system (reduction of the FVS) by, at most, 15 points.10
ANALYSIS -- ISSUE 1
The Office medical adviser based his April 22, 2008 impairment rating on loss of visual
acuity only. In previous reports, he indicated that his impairment rating was based on a review
of Dr. Langston’s February 26, 2007 report and visual field analysis. The Office medical adviser
stated that, while appellant’s visual acuity had been affected in his right eye by a retinal
detachment, the visual field analysis failed to provide any evidence that appellant had any type of
glaucoma and no defect was noted. Although the A.M.A., Guides provide that impairment
ratings should be based on the best-corrected visual acuity,11 the Act mandates that the degree of
loss of vision under the schedule award provisions must be determined without regard to
correction.12 The Office medical adviser’s April 22, 2008 visual acuity impairment rating was
based on a reported uncorrected visual acuity result of 20/200 in the right eye. Application of
Table 12-2, Impairment of Visual Acuity, to an uncorrected visual acuity result of 20/200 in the
right eye reveals a visual acuity score of 50 and a visual acuity impairment rating of 50 percent.13
As the postsurgical visual field results were negative, the Office medical adviser did not
calculate impairment of the visual field.
The Board finds that the Office medical adviser’s impairment rating conforms to the
A.M.A., Guides and, thus, establishes that appellant has no more than 50 percent impairment of
the right eye. Appellant has not submitted any credible medical evidence indicating he has
greater than 50 percent impairment of the right eye. While appellant argued that he would be
blind in his right eye but for surgical correction, the medical evidence reflects appellant’s
uncorrected visual acuity of 20/200 in the right eye was obtained after appellant reached
8

Id. at 278, 280, 296. This represents a change from the visual efficiency scale that was used up to the fourth
edition of the A.M.A., Guides, as the extra scale and losses for diplopia and aphakia have been removed. The
current edition of the A.M.A., Guides, the fifth edition, also utilizes a different formula for calculating visual
impairment ratings to better account for situations where the binocular function is not identical to the function of the
better eye.
9

A.M.A., Guides 297.

10

Id.

11

A.M.A., Guides 282, Section 12.2b.3.

12

5 U.S.C. § 8107(c)(19).

13

A.M.A., Guides 284.

5

maximum medical improvement from his surgical procedures. Accordingly, the Office properly
awarded appellant a total impairment of 50 percent for the right eye.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.14 Section 10.608(b) of Office
regulations provides that when an application for reconsideration does not meet at least one of
the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.15 The
Board has held that the submission of evidence or argument which does not address the
particular issue involved does not constitute a basis for reopening a case.16
ANALYSIS -- ISSUE 2
In support of his reconsideration request, appellant’s attorney argued that appellant’s total
loss of vision in his right eye is the same as a total removal of an eye. In support of his
argument, he quoted a case where a claimant was awarded a schedule award for 100 percent loss
of use of an eye based on total removal of that eye. The issue of appellant’s entitlement to
schedule award compensation is medical in nature and can only be resolved by the submission of
medical evidence. Appellant did not submit any medical evidence in support of his
reconsideration request. Additionally, his argument pertaining to total removal of an eye is not
persuasive as the medical evidence shows that appellant has 20/200 visual acuity in that eye and
is not totally blind. Should appellant’s impairment increase, a schedule award could be filed
with the Office at that time.
Appellant has not established that the Office improperly denied his request for further
review of the merits of its February 24, 2009 decision under section 8128(a) of the Act, because
he did not submit evidence or argument showing that the Office erroneously applied or
interpreted a specific point of law, advancing a relevant legal argument not previously
considered by the Office, or constituting relevant and pertinent new evidence not previously
considered by the Office.
CONCLUSION
Appellant has not established that he has greater than 50 percent impairment of the right
eye. The Board further finds that the Office properly denied his request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
14

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

15

Id. at § 10.608(b); K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

16

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

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ORDER
IT IS HEREBY ORDERED THAT the June 18 and February 24, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 23, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7