United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Point Pleasant Beach, NJ, Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1308
Issued: January 7, 2020

Case Submitted on the Record

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

JURISDICTION
On May 24, 2019 appellant, through counsel, filed a timely appeal from a December 21,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated August 16, 2017, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.3

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.

3
The Board notes that appellant submitted additional evidence on appeal. 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 12, 2016 appellant, then a 49-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on November 1, 2016 he strained his left knee while
turning to reach for dropped mail while in the performance of duty.
In a development letter dated November 29, 2016, OWCP advised appellant that further
factual and medical evidence was necessary to establish his claim. It provided him a questionnaire
for completion and afforded him 30 days to submit the necessary evidence. Appellant did not
respond.
By decision dated December 30, 2016, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record was insufficient to establish the medical component of fact of
injury as no medical condition was diagnosed. It concluded, therefore, that the requirements had
not been met to establish an injury as defined by FECA.
On January 17, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held telephonically
on June 30, 2017.
In a July 10, 2017 report, Dr. Karl R. Blum, a Board-certified orthopedic surgeon, noted
that he examined appellant on November 10, 2016 for a twisting injury of the left knee which
appellant indicated occurred at work on November 1, 2016. He indicated that the magnetic
resonance imaging (MRI) scan revealed a medial meniscal tear and some bone marrow edema at
the posteromedial aspect of the tibial plateau consistent with either a contusion or degenerative
changes. Dr. Blum identified the diagnosis as “rule out medial meniscal tear.” He then opined
that appellant sustained a medial meniscal tear to appellant’s left knee causally related to the
November 1, 2016 employment incident.
By decision dated August 16, 2017, an OWCP hearing representative modified the
December 30, 2016 decision to reflect that, although there was a medical diagnosis, the claim
remained denied as the medical evidence of record was insufficient to establish that appellant’s
diagnosed left knee condition was causally related to the accepted November 1, 2016 employment
incident.
On August 1, 2018 appellant, through counsel, requested reconsideration. Counsel
discussed Dr. Blum’s previously submitted report of July 10, 2017 and indicated that Dr. Blum
had access to the MRI scan. He argued that it was error for OWCP’s hearing representative to
deny appellant’s claim when Dr. Blum specifically opined that the medial meniscal tear to
appellant’s left knee was causally related to the claimed November 1, 2016 employment injury.
A November 15, MRI scan left knee was submitted to the record which revealed: bone
marrow edema at the posterior aspect of the medial tibial plateau, consistent with osseous

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contusion; a horizontal tear, reaching inferior meniscal surface at the posterior horn of the medial
meniscus; small joint effusion; and cystic lesion, suggestive of ganglion.
By decision dated December 21, 2018, OWCP denied appellant’s request for
reconsideration of the merits of his claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration, without
reopening the case for a review on the merits.8
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.9 He or she needs only
to submit relevant, pertinent evidence not previously considered by OWCP.10 When reviewing an
OWCP decision denying merit review, the function of the Board is to determine whether OWCP
properly applied the standards set forth at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.11

4

This section provides in pertinent part: [t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.606(b)(3).

8

Id.

9

J.F., Docket No. 17-1508 (issued March 28, 2018).

10

C.F., Docket No. 18-0360 (issued July 19, 2018); Mark H. Dever, 53 ECAB 710 (2002).

11

See T.B., Docket No. 19-0029 (issued June 21, 2019); C.F., id.; Annette Louise, 54 ECAB 783 (2003).

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The Board also has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a claim.12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The Board notes that the underlying issue in this case was whether appellant’s left knee
condition was causally related to the accepted November 1, 2016 employment incident. That is a
medical issue which must be addressed by relevant medical evidence not previously considered.13
In his August 1, 2018 request for reconsideration, counsel alleged that it was error for
appellant’s claim to be denied as he concluded that the medical evidence demonstrated that
appellant sustained a medial meniscal tear of the left knee causally related to the November 1,
2016 employment incident. Causal relationship is a medical issue which must be addressed by
relevant medical evidence not previously considered.14 As the issue is medical in nature, it can
only be resolved through the submission of medical evidence. Counsel’s opinion regarding the
sufficiency of the medical evidence is not medical evidence and is therefore irrelevant to the
medical issue of causal relationship.15 Thus, the arguments on reconsideration did not show that
OWCP erroneously applied or interpreted a specific point of law, or advance a new and relevant
legal argument not previously considered by OWCP. Consequently, appellant was not entitled to
a review of the merits based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).
The Board further finds that appellant has not submitted relevant and pertinent new
evidence in support of his request for reconsideration. While OWCP received the November 15,
2016 MRI scan report, the Board has explained that diagnostic studies lack probative value as they
do not address whether the accepted employment incident caused any of the diagnosed
conditions.16 This report is therefore irrelevant and does not constitute a basis for reopening the
claim as it does not address the particular issue involved.17 Appellant was therefore not entitled to
a review of the merits of his claim based on the third requirement under 20 C.F.R. § 10.606(b)(3).

12

See M.E., Docket No. 18-0553 (issued November 5, 2018); S.T., Docket No. 17-0790 (issued May 22, 2018);
M.E., 58 ECAB 694 (2007).
13

R.S., Docket No. 19-0312 (issued June 18, 2019); D.L., Docket No. 16-0342 (issued July 26, 2016).

14

Id.

15

B.S., Docket No. 17-0697 (issued April 25, 2018); Y.S., Docket No. 08-0440 (issued March 16, 2009).

16

N.P., Docket No. 18-0173 (issued August 21, 2019); M.S., Docket No. 19-0587 (issued July 22, 2019).

17

See supra note 12.

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The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.18
On appeal counsel asserts that OWCP erred in issuing a nonmerit decision as appellant had
offered both new medical evidence and legal argument not previously considered by OWCP. For
the reasons set forth above, appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18
See S.M., Docket No. 18-0673 (issued January 25, 2019); A.R., Docket No. 16-1416 (issued April 10, 2017);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Bern, NC, Employer
__________________________________________

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

Docket No. 15-1931
Issued: February 4, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 28, 2015 appellant filed a timely appeal from a September 17, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty.
FACTUAL HISTORY
On July 31, 2015 appellant, then a 31-year-old clerk, filed a traumatic injury claim
alleging a right wrist injury in the performance of duty. She alleged that she sustained the injury

1

5 U.S.C. § 8101 et seq.

when she lifted and pulled letter trays on July 18, 2015. Appellant did not stop work. The
employing establishment controverted the claim and asked that OWCP fully develop the claim.
In a July 27, 2015 report, a nurse practitioner advised that appellant sustained a right
wrist strain on July 20, 2015 from overuse, but noted that appellant could return to work that day
with lifting limited to two pounds.
In a July 27, 2015 duty status report, Form CA-17, a nurse practitioner limited lifting to
two pounds and fine manipulation to four hours per day.
By letter dated August 13, 2015, OWCP informed appellant that evidence submitted was
insufficient to establish her claim. Appellant was instructed to return a questionnaire
establishing the factual element of her claim and also advised of the type of medical evidence
needed. OWCP allowed her 30 days from the date of the letter to submit responsive evidence.
In a July 27, 2015 duty status report, Form CA-17, a nurse practitioner advised that
appellant was able to return to work without restrictions.
A July 27, 2015 x-ray of the wrist performed by CCHC Imaging Center revealed no acute
fracture or dislocation.
In an August 7, 2015 report, Dr. Mary Kirby, Board-certified in family medicine, advised
that appellant was experiencing wrist pain. On examination she noted strong grip strength and
tenderness of the medial proximal wrist. Dr. Kirby assessed wrist joint pain.
In an August 17, 2015 report, a nurse practitioner advised that appellant’s symptoms had
improved and she was ready to return to work. On examination she noted normal movements of
the upper extremity and no pain with flexion or extension. The nurse practitioner assessed pain
in the wrist joint.
By decision dated September 17, 2015, OWCP denied appellant’s claim because the
evidence of record was insufficient to establish that the claimed events occurred as described.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.3 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.4

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.6
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and her subsequent
course of action. An employee has not met his or her burden in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.7
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish an
employment-related right wrist injury on July 18, 2015. The record did not support her
allegation that a specific employment event occurred which caused an injury. By letter dated
August 13, 2015, OWCP informed appellant of the type of evidence needed to support her claim.
Appellant did not submit any description of the specific circumstances of the injury as requested
by OWCP and consequently did not provide any requested confirmation as to how the claimed
injury occurred. She did not indicate where she was when the claimed injury occurred, the
precise time that it occurred, or if anyone witnessed it or had immediate knowledge of the
claimed injury.
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value. However, lack of confirmation of injury and continuing to work
without apparent difficulty following the alleged injury may, if otherwise unexplained, cast
doubt on an employee’s statement in determining whether a prima facie case has been
established.8 OWCP requested that appellant provide further information to confirm how the
claimed injury occurred but appellant was not responsive to this request.
The Board, therefore, concludes that appellant failed to establish a traumatic injury in the
performance of duty on July 18, 2015. Where a claimant does not establish an employment

5

T.H., 59 ECAB 388 (2008).

6

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

7

Betty J. Smith, 54 ECAB 174 (2002).

8

See supra notes 6 and 7.

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incident alleged to have caused his or her injury, it is not necessary to consider the medical
evidence.9
On appeal appellant contends that she and her supervisor submitted the required
paperwork. However, as explained above, she has not submitted sufficient evidence to establish
her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in
the performance of duty on July 18, 2015.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

S.P., 59 ECAB 184 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.E., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Santa Clarita, CA,
Employer
__________________________________________

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

Docket No. 15-1494
Issued: December 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 30, 2015 appellant, through counsel, filed a timely appeal from a June 3, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and schedule award benefits under 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On August 18, 2010 appellant, then a 40-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he sustained neck, arm, and knee injuries as a result of
1

5 U.S.C. § 8101 et seq.

his federal employment. The reverse of the claim form indicated that he had stopped working as
of June 17, 2010. In an accompanying statement, appellant indicated that his job duties involved
loading and unloading trucks. The medical evidence shows that he underwent a left elbow ulnar
nerve release on June 25, 2010.
OWCP accepted the claim on October 7, 2010 for lesion of the left ulnar nerve. In
addition, it has accepted a neck sprain, bilateral knee derangement, displacement of cervical
intervertebral disc without myelopathy, and brachial neuritis or radiculitis.
Appellant remained off work and received treatment from Dr. Narinder Grewal, a Boardcertified anesthesiologist. In a work capacity evaluation (Form OWCP-5c) dated October 4,
2012, Dr. Grewal provided work restrictions, which included three to four hours of sitting. The
employing establishment offered appellant a part-time sedentary position on January 4, 2013.
Appellant refused the offer on January 7, 2013, asserting that he could not physically perform the
position.
On February 13, 2013 the employing establishment offered appellant a full-time position
as a customer care agent. The physical requirements of the customer care agent were reported as
sitting up to eight hours with some standing, simple grasping up to eight hours intermittently,
pushing/pulling of a computer mouse up to eight hours, and fine manipulation using a keyboard
up to eight hours. Appellant submitted a February 18, 2013 note from Dr. Grewal indicating that
appellant could not perform the offered position.
OWCP prepared a statement of accepted facts (SOAF) dated April 4, 2013 and referred
appellant to Dr. G.B. Ha’Eri, a Board-certified orthopedic surgeon, for a second opinion
examination and opinion regarding work restrictions. In a report dated May 1, 2013, Dr. Ha’Eri
provided a history and results on examination. With respect to the position of customer care
agent, Dr. Ha’Eri opined that appellant was not capable of performing the position as he had to
repeatedly use his hands eight hours per day with no breaks.
The record indicates that on May 28, 2013 appellant underwent an authorized C4-6
anterior microdiscectomy and interbody fusion surgery. In a toxicology report dated August 13,
2013, he tested positive for one prescription drug, Tapentadol, and for THC-COOH. The report
indicated that the referring physician was Dr. Hrair Darakjian, a Board-certified orthopedic
surgeon.
On December 24, 2013 OWCP prepared a new SOAF and again referred appellant to
Dr. Ha’Eri for a second opinion examination. In a December 24, 2013 letter, the employing
establishment discussed the offered position of customer care agent and asserted that appellant
could sit or stand as needed for comfort, and there was no continuous typing.
In a report dated February 5, 2014, Dr. Ha’Eri provided a history and results on
examination. He diagnosed left elbow cubital tunnel syndrome, bilateral knee patellofemoral
stress syndrome, cervical sprain/strain, and aggravation of preexisting multilevel cervical
degenerative disc disease and protrusions, giving rise to neck pain and upper extremity
radiculopathies, left worse than right. Dr. Ha’Eri opined that the degenerative cervical condition
was permanently aggravated by the employment injury. He indicated that the cervical surgery

2

had failed and appellant continued to have neck pain and stiffness associated with bilateral upper
extremity radiculopathy. As to the offered position, Dr. Ha’Eri reported: “It is my opinion that
the claimant is able to return to a sedentary work as long as he has 15-minute breaks every 2
hours. The job offer of customer care agent was reviewed and it seems a suitable position for
him.”
In a toxicology report dated March 17, 2014, appellant tested for positive for two
nonprescribed substances: THC-COOH and 7-Aminoclonazepam. He did not test positive for
any prescribed medications.
On March 28, 2014 the employing establishment offered appellant the full-time position
of customer care agent. Appellant refused the job offer, indicating that it was not medically
suitable.
Appellant submitted an April 3, 2014 report from Dr. Darakjian, who provided a history
and results on examination, indicating that he had reviewed records, including the job of
customer care agent. As to examination results, Dr. Darakjian noted spasm and tenderness of the
cervical paraspinal muscles, with paresthesias in both hands involving C6 and C7 nerve
distribution. He diagnosed status post cervical anterior interbody fusion with residual
radiculopathy, and status post left cubital tunnel syndrome. Dr. Darakjian reported that appellant
would continue to take pain medication, Nucynta (Tapentadol) and Neurontin (Gabapentin), and
was currently managing his pain well with this medication. According to him, the medication
made appellant drowsy, and he had difficulty sitting in one position more than 45 minutes at a
time Dr. Darakjian reported that appellant was not able to do repetitive movements, such as
typing on a keyboard or using a computer mouse more than 15 minutes at a time. He concluded,
“Based on my evaluation and review of records that have been provided to me, I am of the
opinion that the patient is not capable of performing the duties of customer care agent for a call
center due to the length of time needed to focus, sit, and use the hands to operate the computer.
Dr. Darakjian remains totally disabled.”
By letter dated April 18, 2014, OWCP advised appellant that it found the job offer of
customer care agent suitable. It found that Dr. Ha’Eri represented the weight of the medical
evidence. Appellant was advised of the provisions of 5 U.S.C. § 8106(c)(2) and further advised
if he failed to accept the position he should provide written explanation of reasons within 30
days.
Appellant submitted a letter on May 8, 2014 in which he asserted that the SOAF was not
entirely accurate as he was only a supervisor from 2004 to 2006 for a couple of months a year.2
He again opined that the job offered was not medically suitable based on the evidence. The
record contains a toxicology report dated May 12, 2014, indicating that appellant did not test
positive for any prescribed medication. In a toxicology report dated June 5, 2014, appellant
again did not test positive for any prescribed medication by Dr. Darakjian. The positive results
were for Tramadol, Zolpidem, and 7 -- Aminoclonazepam.

2

The December 24, 2013 SOAF had indicated that appellant worked as a supervisor in the year prior to his
injury.

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By letter dated June 27, 2014, OWCP advised appellant that the reasons for refusing the
job offer were not acceptable. It advised him that he had an additional 15 days to accept the
position or his entitlement to wage-loss compensation and schedule award benefits would be
terminated.
On August 4, 2014 appellant submitted a July 3, 2014 report from Dr. Darakjian, who
provided results on examination. Dr. Darakjian indicated that appellant reported persistent pain,
with weakness in the hands. He reported that he was concerned that appellant’s pain medications
will make it difficult for him to focus, use a keyboard or watch a computer screen. Dr. Darakjian
noted that he had found in his April 3, 2014 report that appellant could not perform the customer
care agent position, and his opinion remained unchanged.
By decision dated July 16, 2014, OWCP terminated wage-loss compensation and
entitlement to a schedule award effective July 16, 2014 pursuant to 5 U.S.C. § 8106(c)(2). It
found Dr. Ha’Eri represented the weight of the medical evidence, as there was no evidence from
a treating physician disputing his findings. With regard to medications, OWCP found that the
toxicology reports dated May 12 and June 5, 2014 did not test positive for the prescribed
medications. It also stated that there were August 13, 2013 and March 17, 2014 which were
positive for THC-COOH, which was indicative of marijuana use, and Dr. Darakjian did not
address this finding.
In a report dated August 28, 2014, Dr. Darakjian indicated that appellant continued to
report neck pain. He stated that appellant reported that the prescribed medication of Nucynta and
Gabapentin made him sleepy. Dr. Darakjian stated that appellant was disabled “as he is not able
to do even the modified duties that have been provided to him due to the fact that he has
difficulty with prolonged sitting, repetitive use of the hands, typing, focusing and concentrating
on his work.”
Appellant requested a telephone hearing with an OWCP hearing representative, which
was held on March 18, 2015. At the hearing, he argued that the claim should be expanded to
include a permanent aggravation of the cervical condition.
By decision dated June 3, 2015, the hearing representative affirmed the July 16, 2014
suitable work termination. The hearing representative found OWCP met its burden of proof to
terminate compensation for refusal of suitable work.
LEGAL PRECEDENT
5 U.S.C. § 8106(c) provides in pertinent part, “A partially disabled employee who …
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.3 To justify such a termination, OWCP
must show that the work offered was suitable.4 An employee who refuses or neglects to work

3

Henry P. Gilmore, 46 ECAB 709 (1995).

4

John E. Lemker, 45 ECAB 258 (1993).

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after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.5
With respect to the procedural requirements of termination under section 8106(c), the
Board has held that OWCP must inform appellant of the consequences of refusal to accept
suitable work, and allow appellant an opportunity to provide reasons for refusing the offered
position.6 If appellant presents reasons for refusing the offered position, OWCP must inform the
employee if it finds the reasons inadequate to justify the refusal of the offered position and afford
appellant a final opportunity to accept the position.7
ANALYSIS
In the present case, the employing establishment offered appellant a full-time position as
a customer care agent. The position was primarily sedentary, with computer keyboarding and
the ability to stand as needed. The second opinion physician, Dr. Ha’Eri, found that appellant
was capable of performing the duties of the position. In his February 5, 2014 report, he provided
a complete factual and medical background. While Dr. Ha’Eri indicated that appellant had a
degenerative cervical condition that was permanently aggravated by the employment injury, he
reviewed the duties of the offered position and found appellant could perform the job. The
Board notes that appellant had argued that the accepted conditions should include permanent
aggravation of the cervical condition. As to whether an offered position is medically suitable, it
is well established OWCP must consider preexisting and subsequently-acquired medical
conditions, as well as employment-related conditions.8 The issue is not whether a condition is
employment related or not, but whether appellant can perform the duties of the offered position.
Dr. Ha’Eri provided an opinion that appellant could perform the position based on appellant’s
current condition.
Appellant submitted an April 3, 2014 report from Dr. Darakjian, who opined that
appellant could not perform the job. Dr. Darakjian does not provide a rationalized medical
opinion on the issue. Rationalized medical opinion evidence is medical evidence that is based on
a complete factual and medical background, of reasonable medical certainty, and supported by
medical rationale explaining the opinion.9 Dr. Darakjian refers to the prescribed pain medication
and asserts that it made appellant drowsy. In this regard, he makes no mention of the toxicology
reports that he had ordered in this case. The March 17, 2014 report, for example, did not show
the presence of any prescription drugs, but did show other substances. Dr. Darakjian does not
clearly explain his opinion in light of these findings, or otherwise provide a clear explanation as
to why prescribed medication would prevent appellant from performing the offered position. As
to the opinion that appellant could not physically perform the position, Dr. Darakjian provides no
5

Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

6

Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

7

Id.

8

Janice S. Hodges, 52 ECAB 379 (2001).

9

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

5

additional explanation or medical rationale. The position was a very light-duty, sedentary
position that did not require continuous typing and would allow appellant to stand as necessary.
The Board finds that the weight of the medical evidence rests with Dr. Ha’Eri in this
case. Dr. Ha’Eri provided a rationalized medical opinion based on a complete background that
appellant could perform the duties of the offered position. The position of customer care agent
was medically suitable based on the weight of the medical evidence.
OWCP followed its procedures and advised appellant that it found the job offer to be
suitable, and provided appellant an opportunity to accept the position or provide valid reasons for
refusing the position. In addition, it advised appellant of 5 U.S.C. § 8106(c)(2) and the
consequences for refusing an offer of suitable work. Appellant provided a statement that he felt
the SOAF had incorrectly identified the period he worked as a supervisor. The issue in the case
was whether appellant currently had the ability to perform the duties of the selected position.
Dr. Ha’Eri was provided a proper background for this issue and as noted above, provided a
rationalized medical opinion on the issue. OWCP properly advised appellant that his reasons for
refusing the offered position were not considered valid, and he had another 15 days to accept the
position.
Following the July 16, 2014 suitable work termination, appellant submitted an August 28,
2014 report from Dr. Darakjian. Dr. Darakjian reiterates his opinion without providing
additional medical rationale or remedying the deficiencies noted above in his April 3, 2014
report. The weight of the evidence, for the reasons discussed, remained with the second opinion
physician, Dr. Ha’Eri.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and schedule award benefits under 5 U.S.C. § 8106(c)(2).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 3, 2015 is affirmed.
Issued: December 24, 2015
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
DEPARTMENT OF THE ARMY, DURHAM
U.S. ARMY HEALTH CLINIC, Carlisle, PA,
Employer
__________________________________________

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

Docket No. 19-0839
Issued: November 12, 2019

Case Submitted on the Record

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

JURISDICTION
On March 13, 2019 appellant filed a timely appeal from a February 28, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 28, 2019 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her conditions
were causally related to the accepted September 14, 2018 employment incident.
FACTUAL HISTORY
On January 10, 2019 appellant, then a 53-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging that she sustained hip and knee injuries on September 14, 2018 when her
legs straddled “like doing a split” when she was mopping while in the performance of duty. She
indicated that she did not immediately report her injury because she did not think anything was
wrong until she started experiencing knee problems. On the reverse side of the claim form, the
employing establishment controverted the claim. J.B., a supervisor, explained that appellant did
not report her injury within 30 days of the date of injury and that no medical evidence supporting
causal relationship was provided.
OWCP received work excuse slips dated October 5 and 15, November 13, and
December 5, 2018, and January 9, 2019, from Dr. James A. Oliverio, a Board-certified orthopedic
surgeon. A January 4, 2019 note from a nurse was also received regarding treatment provided.
A January 15, 2019 magnetic resonance imaging (MRI) scan of appellant’s left hip
interpreted by Dr. Elie M. Azar, an interventional radiologist, demonstrated signal changes in the
left femoral neck and intertrochanteric region consistent with bone infarcts.
In a January 22, 2019 treatment note, Dr. Adam Buerk, a Board-certified orthopedic
surgeon, indicated that appellant was seen for evaluation of left hip pain following an employment
injury. He noted that she had a “mechanical fall in September 2018 while mopping a floor at work
causing her to do a split.” Dr. Buerk diagnosed avascular necrosis with collapse, left hip.
In a development letter dated January 25, 2019, OWCP advised appellant that the evidence
received to date was insufficient to establish her claim. It informed her of the type of factual and
medical evidence necessary to establish her claim and provided a questionnaire for her completion.
OWCP afforded appellant 30 days to submit the necessary evidence.
OWCP received appellant’s supplemental statement describing the employment incident.
Appellant noted that her left leg straddled faster than her right leg; however, she was able to pull
herself back up. She explained that, while she experienced pain, she did not initially report the
incident because she did not believe that she was injured. Appellant continued to work, however,
a few days later, her knee swelled and she saw her physician. She explained that she did not
mention the incident to her physician because she did not realize that it was related. Appellant
explained that, when she saw an orthopedic surgeon, she informed him that she had slipped.
In an October 5, 2018 report, Dr. Oliverio noted that appellant presented for evaluation of
bilateral knee pain. He indicated that she began to develop swelling over the posterior aspects of
the knees. Dr. Oliverio noted that appellant denied any known injury or trauma. He diagnosed
intermittent synovitis, and bilateral knees. An October 5, 2018 x-ray of the right knee read by
Dr. Oliverio, revealed intermittent synovitis of the bilateral knees.

2

A January 5, 2019 x-ray of the left hip interpreted by Dr. Raymond Dahl, a Board-certified
orthopedic surgeon, revealed ilio tibial band syndrome with trochanteric bursitis.
A January 3, 2019 hospital report from Dr. Gerald E. Willwerth, an interventional
radiology specialist, noted that appellant presented with left hip and left-sided back pain. He
indicated that, approximately two months prior, she sustained an injury to her low back and left
hip when she slipped and “did a split.” Dr. Willwerth diagnosed acute low back pain and acute
left hip pain.
A January 24, 2019 MRI scan of the left hip, interpreted by Dr. Azar, revealed findings
consistent with bone infarcts and no convincing evidence of an acute fracture.
In response to a series of questions from OWCP, Dr. Buerk in a February 1, 2019 letter,
indicated that he had appended his notes to answer all, but one of the questions. In response to the
remaining question, as to whether the September 14, 2018 injury necessitated surgery, he opined
that “[i]t is with a reasonable degree of medical certainty the current treatment and need for surgery
is directly related to the September 14, 2018 work injury. The mechanism of injury as described
by [appellant] directly correlates to her clinical examination.”
By decision dated February 28, 2019, OWCP accepted that the September 14, 2018
employment incident occurred as alleged. However, it denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between her diagnosed conditions and the accepted September 14, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that

3

S.N., Docket No. 18-1627 (issued May 15, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

allegedly occurred.6 The second component is whether the employment incident caused a personal
injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve.8 A physician’s opinion regarding causal relationship between the diagnosed
condition and the implicated employment incident must be based on a complete factual and
medical background.9 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and an employment incident.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
conditions were causally related to the accepted September 14, 2018 employment incident.
OWCP received work excuse notes in support of appellant’s claim. The notes dated
October 5 and 15, November 13, and December 5, 2018, and January 9, 2019, from Dr. Oliverio,
and the January 22, 2019 work excuse from Dr. Buerk, do not provide an opinion on the issue of
causal relationship. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.11 These reports, therefore, are insufficient to establish appellant’s claim.
Similarly, in a January 3, 2019 hospital report, Dr. Willwerth diagnosed acute low back
pain and acute left hip pain. However, pain is a symptom and not a valid diagnosis.12 This report
was insufficient to establish appellant’s claim as it did not provide a firm diagnosis of a medical
condition causally related to the accepted employment incident.13
In an October 5, 2018 report, Dr. Oliverio noted that appellant began to develop swelling
over the posterior aspects of the knees, but denied any known injury or trauma. He diagnosed
intermittent synovitis, bilateral knees. The Board finds that Dr. Oliverio did not offer an opinion
as to the cause of appellant’s diagnosed conditions and did not describe any injury as occurring at
work. As noted above, the Board has held that medical evidence that does not offer an opinion

6

See T.O., Docket No. 18-1012 (issued October 29, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

7

See T.O., id.; John J. Carlone, 41 ECAB 354 (1989).

8

See K.C., Docket 17-1693 (issued October 29, 2018); Robert G. Morris, 48 ECAB 238 (1996).

9

See K.C., id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

Id.

11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

D.B., Docket No. 18-1359 (issued May 14, 2019).

13

Id.

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regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.14 This report is insufficient to establish appellant’s claim.
In a January 22, 2019 treatment note, Dr. Buerk reported that, in September 2018,
appellant’s legs split while mopping at work. He diagnosed avascular necrosis with collapse, left
hip; however, he offered no opinion that the diagnosed condition was the result of the employment
incident. As previously noted, the Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.15 This report is also insufficient to establish appellant’s claim.
In a February 1, 2019 report, Dr. Buerk opined: ‘‘[i]t is with a reasonable degree of
medical certainty the current treatment and need for surgery is directly related to the
[September] 14, 2018 work injury.” He explained that “the mechanism of injury as described by
[appellant] directly correlates to her clinical examination.” However, Dr. Buerk did not provide a
history of injury or offer medical rationale explaining how appellant’s conditions were caused by
the employment incident. Simply, offering a conclusion is insufficient to establish a causal
relationship.16 To be of probative medical value, a medical opinion must explain how
physiologically the movements involved in the employment incident caused or contributed to the
diagnosed conditions.17 Lacking this rationalized explanation, Dr. Buerk’s reports are therefore
insufficient to establish appellant’s claim.
OWCP also received a January 4, 2019 note from a nurse. Nurses, however, are not
considered “physician[s]” as defined under FECA.18 Consequently, their medical findings and/or
opinions will not suffice for purposes of establishing entitlement to FECA benefits.19
Appellant submitted diagnostic imaging studies in the form of an October 5, 2018 x-ray of
the right knee, a January 5, 2019 x-ray of the left hip, and MRI scans of the left hip dated
January 15 and 24, 2019. The Board has held that diagnostic studies lack probative value as they

14

Supra note 11.

15

Id.

16

See id.

17

T.C., Docket No. 18-1498 (issued February 13, 2019).

5 U.S.C. § 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law; see T.T., Docket No. 18-0838 (issued September 19, 2019). See also David P. Sawchuk, 57 ECAB 316,
320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to
render a medical opinion under FECA). 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). O.R., Docket No. 18-1458 (issued
August 2, 2019) (nurse practitioners are not considered a physician as defined under FECA).
18

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).

5

do not provide an opinion on causal relationship between the employment incident and her
diagnosed conditions.20 These reports are therefore also insufficient to establish appellant’s claim.
As there is no well-reasoned medical opinion establishing appellant’s claim for
compensation, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
conditions were causally related to the accepted September 14, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 28, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 2019
Washington, DC

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

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

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

20

See R.C., Docket No. 19-0376 (issued July 15, 2019); C.B., Docket No. 18-0071 (issued May 13, 2019).

6


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

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

Docket No. 14-1022
Issued: July 1, 2014

Case Submitted on the Record

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

JURISDICTION
On March 31, 2014 appellant filed a timely appeal from a February 13, 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.2
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in
the performance of duty on December 17, 2012.

1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant submitted evidence with his appeal to the Board. The Board cannot review this
evidence as its jurisdiction is limited to the evidence that was before OWCP at the time it issued its final decision.
20 C.F.R. § 501.2(c); J.T., 59 ECAB 293 (2008).

On appeal appellant maintained that, because he had to continue to carry mail, he had to
stop work when the pain became unbearable, and that after that time, his physician told him that
his arm pain was coming from his neck and shoulder.
FACTUAL HISTORY
On December 20, 2012 appellant, then a 50-year-old letter carrier, filed a traumatic injury
claim alleging that on December 17, 2012 he injured his left arm lifting a large box. He did not
stop work. An employing establishment supervisor indicated that the package weighed
approximately 20 to 25 pounds and was well within the weight limit for carriers.
In a treatment note dated December 20, 2012, Dr. Paul F. Maranzini, a Board-certified
osteopath specializing in family medicine at Concentra, indicated that appellant felt pain in his
left elbow and biceps on December 17, 2012 after lifting a heavy package. Examination of the
left arm showed full range of motion with pain of the left elbow. Dr. Maranzini noted that a left
elbow x-ray demonstrated a large olecranon spur and no fracture. He diagnosed left elbow pain
and advised that appellant could work full duty. A copy of the December 20, 2012 x-ray report
was attached.
By letter dated January 7, 2013, OWCP informed appellant of the evidence needed to
support his claim. In a December 17, 2012 statement, appellant indicated that he told a manager
that a package was too heavy to deliver and that, when he picked it up, he heard a snap in his left
arm and, when he delivered it, it aggravated his arm more. On an OWCP questionnaire, signed
by appellant on January 31, 2013, he stated that he had to lift the package from the floor, which
caused pain in his left arm, and he then had to place it in a hamper and then into his truck and
deliver it. He indicated that he had some help getting the package into the hamper, that his arm
had hurt continuously since that time, and that he was working full duty. Andrew Howe, a
coworker, stated that he witnessed appellant telling a manager that the box was too heavy and
that his arm hurt when he attempted to pick up the box.
Nicola Hawk, a physician’s assistant at Concentra, provided a treatment note dated
January 4, 2013 in which she indicated that appellant had full range of motion of the left elbow
with no pain or tenderness. She diagnosed elbow pain and ordered a magnetic resonance
imaging (MRI) scan study. A January 11, 2013 MRI scan of the left elbow demonstrated no
evidence of significant internal derangement. On January 22, 2013 Dr. Maranzini noted
appellant’s complaint of continued left elbow pain. Left shoulder range of motion was normal
with negative drop test, apprehension test and Hawkins impingement test. Left elbow and wrist
also demonstrated normal range of motion with no tenderness on examination. Dr. Maranzini
diagnosed left elbow and arm pain and recommended an upper extremity electrodiagnostic study.
On January 22 and February 1, 2013 he indicated that appellant could work regular duty.
The employing establishment controverted the claim. Florence Brittingham, manager of
customer service, indicated that on Monday, December 17, 2012 appellant asked her if she
would get someone to deliver a package that was too heavy for him to lift. She stated that, upon
observation, the package was large and bulky but not too heavy, and that she and he lifted it from
the floor, and that later that day appellant reported that he injured his arm lifting the package.
Ms. Brittingham indicated that appellant signed a letter, stating that he did not wish to file a

2

CA-1 claim form, and that he was not scheduled to work the next day. She stated that he called
in sick on Wednesday, December 19, 2012, and when he returned to work on Thursday,
December 20, 2012, indicated that he wished to file a CA-1 form. Appellant was sent to
Concentra and did not return to work. When he was reached by telephone, he indicated that he
was agitated because the physician told him he could return to work. Appellant returned to work
on December 21, 2012 and delivered mail without complaint.
In a February 7, 2013 decision, OWCP denied the claim on the grounds that appellant did
not establish fact of injury.3 Appellant stated that he did not receive the February 7, 2013
decision and it was determined that it was mailed to an incorrect zip code.
On September 30, 2013 OWCP reissued the February 7, 2013 decision. On October 3,
2013 appellant requested reconsideration. He submitted a statement in which he indicated that
on December 12, 2012 he had no help putting the package into his vehicle or delivering it.
The medical evidence submitted subsequent to the February 7, 2013 decision includes a
December 19, 2012 report in which Allison Ferris, a nurse practitioner, ordered x-rays of the
cervical spine and left shoulder for complaints of cervicalgia and left shoulder pain. In an
August 23, 2013 treatment note, Adrienne Willard, a nurse practitioner, indicated that she saw
appellant in follow-up for muscle spasm, cervicalgia, paresthesia, and left shoulder joint pain.
She ordered cervical spine x-rays and a left shoulder MRI scan study. A cervical spine x-ray
dated August 23, 2013 demonstrated mild-to-moderate degenerative disc disease and cervical
lordosis and mild cervicothoracic scoliosis. An August 28, 2013 MRI scan study of the left
shoulder demonstrated a partial thickness tear along the bursal aspect of the supraspinatus tendon
that had progressed from a prior study done in 2009. In an August 30, 2013 treatment note, Sara
Niedzwiecki, a physician’s assistant, advised that appellant could return to work with physical
restrictions. Duty status reports dated August 30 and September 24, 2013 with illegible
signatures provided restrictions.
On September 13, 2013 Dr. Gautam Kothari, a Board-certified physiatrist, reported a
history that appellant lifted a heavy object at work several months previously and had an onset of
arm pain and later began to develop neck pain radiating into his left arm. Cervical spine
examination demonstrated tenderness to palpation and decreased range of motion. Shoulder
range of motion was full and active without impingement. Dr. Kothari reviewed the cervical
spine MRI scan study and diagnosed axial neck and left arm pain due to cervical disc disease at
C5-6 and left C5 radiculitis. He advised that appellant’s symptomatology was due to a work
incident that had occurred several months previously.
In a nonmerit decision dated October 16, 2013, OWCP denied appellant’s October 3,
2013 reconsideration request. On October 23, 2013 appellant again requested reconsideration,
3

On August 28, 2012 appellant filed a recurrence claim, stating that he sustained a recurrence of disability on
August 20, 2012 when carrying mail caused left upper extremity pain running up his arm into his neck. He stopped
work that day. The employing establishment controverted the claim, noting that appellant had been on annual leave
from July 20 to August 3, 2012 and had not returned to work since August 20, 2012.
Appellant telephoned OWCP on September 27, 2013, questioning the status of his recurrence claim. He was told
that since his claim was denied, he could not be considered for a recurrence.

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stating that from December 17, 2012 until August 20, 2013, he carried his mailbag which
weighed 35 pounds, caused arm pain. He submitted a December 12, 2013 report in which
Dr. Paul A. Marchetto, a Board-certified orthopedic surgeon, noted appellant’s complaint of left
shoulder pain, and that he had been treated for cervical and shoulder pain over the past six
months, including aggressive physical therapy, with no improvement. He reported the left
shoulder MRI scan findings and recommended arthroscopic rotator cuff repair and cervical
decompression. Appellant also submitted evidence previously of record and duty status reports
dated November 8, December 5 and 15, 2013 with illegible signatures.
In a merit decision dated February 13, 2014, OWCP denied appellant’s traumatic injury
claim on the grounds that, even if the December 17, 2012 incident occurred as alleged, the
medical evidence was insufficient to establish causal relationship. It noted that the claimed
cervical condition could be considered an occupational disease claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.4
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.5 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.6
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
4

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

5

20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004).

6

Gary J. Watling, supra note 4.

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

4

relationship between the diagnosed condition and the specific employment factors identified by
the employee.8 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.9
ANALYSIS
The Board finds that the evidence establishes that on December 17, 2012 appellant lifted
a large package of indeterminate weight from a hamper into his postal vehicle and delivered it
that day, without help. The Board, however, finds that the medical evidence submitted by
appellant is insufficient to establish that this incident caused a medical condition.
The reports from Ms. Hawk, Ms. Ferris, Ms. Willard and Ms. Niedzwiecki are not
considered medical evidence as nurse practitioners and physician’s assistants are not considered
physicians under FECA.10 Likewise, a medical report may not be considered as probative
medical evidence if there is no indication that the person completing the report qualifies as a
“physician” as defined in 5 U.S.C. § 8102(2). The Board has found that reports lacking proper
identification, such as unsigned notes, do not constitute probative medical evidence.11 Thus the
duty status reports with illegible signatures are not probative.
The diagnostic studies, including the December 20, 2012 left elbow x-ray, the
January 11, 2013 MRI scan study of the left elbow, the August 23, 2013 cervical spine x-ray and
the August 28, 2013 MRI scan study of the left shoulder, do not address the cause of any
diagnosed condition. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.12
The medical evidence most contemporaneous with the December 17, 2012 work incident
includes the December 20, 2012 report in which Dr. Maranzini noted that appellant felt pain in
his left elbow and biceps on December 17, 2012 after lifting a heavy package. The physician
provided examination findings, diagnosed left elbow pain and advised that appellant could return
to full duty. On January 22, 2013 Dr. Maranzini noted appellant’s complaint of continued left
elbow pain. He again provided physical examination findings, noting that left shoulder, elbow
and wrist demonstrated normal range of motion with no tenderness on examination.
Dr. Maranzini diagnosed left elbow and arm pain and recommended an upper extremity
electrodiagnostic study. On January 22 and February 1, 2013 he indicated that appellant could
work regular duty. Dr. Maranzini did not provide a cause of the diagnosed conditions in any of
his reports. His reports are therefore insufficient to meet appellant’s burden of proof.
8

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

9

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

10

Roy L. Humphrey, 57 ECAB 238 (2005). Section 8101(2) of FECA provides that “physician” includes
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners
within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2).
11

R.M., 59 ECAB 690 (2008).

12

Willie M. Miller, 53 ECAB 697 (2002).

5

There are no medical reports of record subsequent to the February 1, 2013 note from
Dr. Maranzini until appellant claimed that he sustained a recurrence of disability on
August 20, 2013. In a September 13, 2013 report, Dr. Kothari reported a history that appellant
lifted a heavy object at work several months previously and had an onset of arm pain. He
indicated that appellant later began to develop neck pain radiating into his left arm, and cervical
spine examination demonstrated tenderness to palpation and decreased range of motion.
Shoulder range of motion was full and active without impingement. Dr. Kothari reviewed the
cervical spine MRI scan study and diagnosed axial neck and left arm pain due to cervical disc
disease at C5-6 and left C5 radiculitis. He advised that appellant’s symptoms were due to work
incident that occurred several months previously.
The Board finds that Dr. Kothari’s report lacks sufficient detailed medical rationale to
discharge appellant’s burden of proof that he sustained an injury on December 17, 2012.
Dr. Kothari seemed unaware of the date the claimed incident occurred, which was almost nine
months prior to his examination. He also did not describe the circumstances of the claimed
injury other than to say that appellant lifted a heavy object at work. Dr. Kothari did not offer any
explanation of the mechanics of the incident and resulting injury. Without a detailed medical
report describing the employment incident in detail and noting how and why appellant sustained
a left shoulder and cervical condition as a result of the December 17, 2012 incident,
Dr. Kothari’s opinion is not sufficient to meet appellant’s burden of proof.13 Appellant also
submitted a December 12, 2013 report from Dr. Marchetto who noted appellant’s complaint of
left shoulder pain, and that he had been treated for cervical and shoulder pain over the past six
months. As Dr. Marchetto also did not discuss a cause of appellant’s cervical and shoulder
conditions, his report is of no probative value on the issue of causation.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition. Dr. Kothari, the only physician who
discussed causal relationship, did not do so.14 Appellant, therefore, did not meet his burden of
proof to establish that he sustained a traumatic injury on December 17, 2012.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained an employment-related
injury on December 17, 2012.

13

D.L., Docket No. 13-1226 (issued August 22, 2013).

14

Leslie C. Moore, supra note 8.

6

ORDER
IT IS HEREBY ORDERED THAT the February 13, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
INFORMATION OPERATION COMMAND,
Sugar Grove, WV, Employer
__________________________________________

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

Docket No. 16-1306
Issued: March 15, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 7, 2016 appellant filed a timely appeal from a May 24, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than two percent monaural hearing loss in the
right ear for which he received a schedule award.
FACTUAL HISTORY
On June 4, 2015 appellant, then a 57-year-old maintenance worker, filed an occupational
disease claim (Form CA-2) alleging that he sustained permanent hearing loss at work. He
1

5 U.S.C. § 8101 et seq.

became aware of his hearing loss on April 16, 2015 and realized it was causally related to his
employment on the same day. Appellant did not stop work and continued to be exposed to noise.
By letter dated June 16, 2015, OWCP advised appellant of the type of evidence needed to
establish his claim. In a letter of the same date, it requested that the employing establishment
address the sources of appellant’s noise exposure, decibel and frequency level, period of
exposure, and hearing protection provided.
In a June 4, 2015 statement, appellant indicated that he had no history of previous hearing
loss. He noted noise exposure from hunting, cutting wood and mowing the lawn. Appellant
reported still being exposed to hazardous noise. He noted that during the annual physical
examination in December 2014 he failed the hearing test three times. On April 16, 2015
appellant received notification from the employing establishment hearing conservation program
of a significant threshold shift in his hearing. He was informed that hearing tests revealed
deterioration in his hearing since the last reference audiogram. Appellant was advised to use
hearing protection around both recreational and work-related hazardous noise.
A statement of accepted facts (SOAF) noted that appellant’s nonfederal employment was
from 1976 to 1994 where he was exposed to minimal noise. From July 1976 to August 1980
appellant worked as a boiler technician; from April 1981 to September 1981 he worked as a
groundskeeper; from October 1981 to July 1982 he worked as a laborer; from August 1982 to
June 1983 he worked as a laboratory technician; and from September 1983 to May 1994 he
worked as a boiler plant operator and was subject to noise associated with electric and pneumatic
tools for approximately 40 hours per week. He wore ear protection in all positions. Appellant
was employed by the Federal Government from August 1994 to May 2005 as a food service
worker, where he was subject to minimal noise, and later as a maintenance worker, where he was
exposed to noise from hand tools for about three hours a week. Ear protection was worn.
Appellant’s hobbies associated with exposure to loud noises were hunting and cutting wood.
The employing establishment submitted audiograms dated May 18, 2004 to June 30,
2015 which showed a standard threshold shift bilaterally when compared to the December 10,
2009 audiogram. It also noted that appellant participated in a hearing conservation program
from May 18, 2004 to March 25, 2008.
An April 20, 2015 employing establishment
occupational audiology treatment note advised that, in addition to hearing loss, appellant had
mildly bothersome tinnitus in both ears.
On September 25, 2015 OWCP referred appellant, together with a SOAF, to Dr. Wayne
Shaia, a Board-certified otolaryngologist, for an otologic examination and an audiological
evaluation. In a November 6, 2015 report, Dr. Shaia provided results on examination and
referenced appellant’s exposure to workplace noise. He noted that there was no prior medical
history for him to review. Dr. Shaia diagnosed noise-induced sensorineural hearing loss that was
in part or all, due to the noise exposure of appellant’s federal civilian employment. Examination
of the right pinna was normal, external auditory canal and tympanic membranes were normal,
with no evidence of middle ear infection, effusion or perforation. Dr. Shaia noted basic tuning
fork tests were normal with no indication of acoustic neuroma or Meniere’s disease. He
performed an otologic evaluation of appellant on November 6, 2015 and audiometric testing was
conducted on his behalf on the same date. Testing at the frequency levels of 500, 1,000, 2,000,

2

and 3,000 cycles per second (cps) revealed the following: right ear 15, 15, 30, and 45 decibels;
left ear 10, 10, 20, and 55 decibels. Dr. Shaia opined that amplification by hearing aids was not
necessary and recommended that appellant wear ear protection when around loud machinery or
loud noises. He indicated that appellant had bilateral sensorineural hearing loss which was
consistent with a noise-induced hearing loss pattern. Dr. Shaia noted that the date of maximum
medical improvement was November 6, 2015. He advised that pursuant to the hearing
impairment calculation sheet appellant had 0 percent monaural hearing loss in the left ear and 2.5
percent monaural hearing loss in the right ear. Dr. Shaia further opined that the hearing loss was
greater than what would be normally predicted on the basis of presbycusis. He noted the
workplace exposure was of sufficient intensity and duration to cause the hearing loss.
On December 9, 2015 OWCP accepted appellant’s claim for bilateral sensorineural
hearing loss due to noise exposure.
On February 7, 2016 an OWCP medical adviser reviewed Dr. Shaia’s report and the
audiometric test of November 6, 2015. He reported appellant’s work history and noise exposure.
The medical adviser noted that the earliest audiogram available to review was from 2004 which
was essentially within normal limits except for an early acoustic notch noted in the right ear at 25
decibels and in the left ear at 30 decibels suggestive of acoustic trauma. He noted the latest
audiogram of November 6, 2015 showed normal hearing bilaterally up to 1,000 Hz and at this
frequency the right ear dropped to an acoustic notch of 60 decibels at 4,000 Hz and in the left ear
55 decibels. The medical adviser explained that these patterns were very consistent with
acoustic trauma most probably induced by work noise. He noted appellant’s hearing worsened
significantly from his work start in 2004. The medical adviser concluded that, in accordance
with the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment,2 (A.M.A., Guides) appellant had 1.88 percent (rounded up to two
percent) monaural hearing loss in the right ear and zero percent hearing loss in the left ear with
binaural hearing loss of .3 percent. He indicated that appellant’s hearing was quite good in
speech range and he would not be a candidate for hearing aids. The medical adviser noted that
no mention was made of tinnitus so there would be none to mask by use of an aid. He
recommended yearly audiograms and hearing protection in noisy environments.
In a decision dated March 17, 2016, OWCP granted appellant a schedule award for two
percent permanent impairment of the right ear. The period of the award was from November 6
to 13, 2015.
On April 26, 2016 appellant requested reconsideration. He indicated that he started
working for the Federal Government in 1994 and not 2004. Additionally, appellant noted
advising Dr. Shaia that he had tinnitus and experienced bilateral hearing loss. He submitted
audiograms dated January 1985 to March 2016.
In a decision dated May 24, 2016, OWCP denied modification of the decision dated
March 17, 2016.

2

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

3

LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 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. However, FECA 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.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000, and 3,000 cps, the losses at each
frequency are added up and averaged.7 Then, the “fence” of 25 decibels is deducted because, as
the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to
hear everyday speech under everyday conditions.8 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss.10 The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.11
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.12 The A.M.A., Guides state that if tinnitus
interferes with activities of daily living, including sleep, reading (and other tasks requiring
concentration), enjoyment of quiet recreation, and emotional well-being, up to five percent may
be added to a measurable binaural hearing impairment.13
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

A.M.A., Guides 250 (6th ed. 2009).

7

Id.

8

Id.

9

Id.

10

Id.

11

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
12

See supra note 6 at 249.

13

Id. See also R.H., Docket No. 10-2139 (issued July 13, 2011); Robert E. Cullison, 55 ECAB 570 (2004).

4

OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.14 OWCP may follow the advice
of its medical adviser or consultant where he or she has properly utilized the A.M.A., Guides.15
ANALYSIS
OWCP accepted appellant’s claim for bilateral sensorineural hearing loss. The issue is
whether appellant has greater than two percent permanent impairment of the right ear for which
he received a schedule award.
OWCP referred appellant to Dr. Shaia, a Board-certified otolaryngologist, for a second
opinion evaluation on November 6, 2015. Dr. Shaia diagnosed noise-induced sensorineural
hearing loss that was due to the noise exposure of appellant’s federal civilian employment. He
opined that amplification by hearing aids was not necessary and recommended that appellant
wear ear protection at all times when around loud machinery or loud noises. Dr. Shaia noted that
the date of maximum medical improvement was November 6, 2015. He noted that pursuant to
the hearing impairment calculation sheet appellant had zero percent monaural hearing loss in the
left ear and 2.5 percent monaural hearing loss in the right ear.
OWCP referred the medical evidence to OWCP’s medical adviser, for a rating of
permanent impairment in accordance with the A.M.A., Guides.16 The medical adviser opined
that appellant had 1.88 percent (rounded up to two percent) monaural hearing loss in the right ear
and zero percent hearing loss in the left ear with binaural hearing loss of .3 percent (rounded
down to zero) based on the results of the November 6, 2015 audiogram and Dr. Shaia’s second
opinion report. He indicated that appellant would not be a candidate for hearing aids. The
medical adviser noted that no mention was made of tinnitus so there would be none to mask by
use of an aid. He recommended yearly audiograms and hearing protection in noisy
environments.
The Board finds that OWCP’s medical adviser properly calculated appellant’s hearing
loss based on the findings from the audiogram performed for Dr. Shaia. Although Dr. Shaia
calculated 2.5 percent monaural hearing loss for the right ear, this was incorrect. As noted,
testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cps revealed
decibels losses of 15, 15, 30, and 45, respectively. These decibels were totaled at 105 and were
divided by four to obtain an average hearing loss at those cycles of 26.25 decibels. The average
of 26.25 decibels was then reduced by 25 decibels (the first 25 decibels were discounted as
discussed above) to equal 1.25 which was multiplied by the established factor of 1.5 to compute

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
15

See Ronald J. Pavlik, 33 ECAB 1596 (1982).

16

See Hildred I. Lloyd, 42 ECAB 944 (1991).

5

a 1.875 percent monaural loss of hearing for the right ear (rounded up to two percent).17 Testing
for the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cps revealed decibels
losses of 10, 10, 20, and 55 respectively. These decibels were totaled at 95 and were divided by
four to obtain the average hearing loss at those cycles of 23.75 decibels. The average of 23.75
decibels was then reduced by 25 decibels (the first 25 decibels were discounted as discussed
above) to zero which was multiplied by the established factor of 1.5 to compute a zero percent
hearing loss for the left ear. To determine binaural hearing loss the lesser loss of zero is
multiplied by 5, then added to the greater loss of 1.875 and the total is divided by 6 to arrive at
the amount of the binaural hearing loss of .3 percent (rounded down to zero).18
The A.M.A., Guides allows for compensation of up to five percent for tinnitus in the
presence of measurable hearing loss if the tinnitus impacts the ability to perform activities of
daily living.19 In this case, Dr. Shaia did not reference tinnitus and did not provide a detailed
description of appellant’s symptoms pertaining to tinnitus and how the condition interfered with
his activities of daily living. Therefore additional impairment for tinnitus is not warranted.20
Appellant may request an increased schedule award, at any time, based on evidence of a
new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant had no more than two percent monaural hearing loss in the
right ear for which he received a schedule award.

17

The policy of OWCP is to round the calculated percentage of impairment to the nearest whole point. Results
should be rounded down for figures less than .5 and up for .5 and over. See supra note 14 at Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3.b (January 2010); Carolyn E. Sellers, 50 ECAB 393, 394 (1999).
18

Id.

19

See R.H., supra note 13; Robert E. Cullison, supra note 13.

20

Supra note 12 and 13.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 24, 2016 is affirmed.
Issued: March 15, 2017
Washington, DC

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

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

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

7