United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harrisburg, PA, Employer
__________________________________________

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

Docket No. 17-0209
Issued: February 8, 2018

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 November 9, 2016 appellant, through counsel, filed a timely appeal from a June 24,
2016 decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established a recurrence of total disability
commencing March 27, 2015 causally related to his accepted August 19, 2007 employment
injury.
FACTUAL HISTORY
On August 26, 2007 appellant, then a 53-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he developed a lumbar injury due to loading and
unloading heavy containers filled with mail weighing between 500 and 1,500 pounds. He
stopped work on August 19, 2007 and returned to light duty on October 22, 2007.
By decision dated January 22, 2008, OWCP accepted the claim for back strain, lumbar
region. On August 8, 2008 appellant returned to full-duty work. He received wage-loss
compensation and medical benefits on the periodic rolls from August 21 until October 22, 2007.
On September 28, 2012 appellant filed a recurrence claim (Form CA-2a) alleging a
return/increase of disability beginning on September 8, 2012. On December 14, 2012 he
underwent a right partial lumbar laminectomy and discectomy at L4-5 on December 14, 2012.3
OWCP expanded acceptance of the claim to include L4-5 lumbar disc herniation. Appellant
again received compensation on the supplemental rolls as of September 14, 2012.
On March 21, 2013 OWCP referred appellant to Dr. Robert Smith, a Board-certified
orthopedic surgeon, for a second opinion evaluation. Dr. Smith opined that appellant could
return to work with restrictions. On August 13, 2013 appellant accepted an offer of modified
assignment as a mail handler based on Dr. Smith’s limited-duty work restrictions. He returned to
work in a limited-duty full-time capacity on August 17, 2013.4
In a March 26, 2015 emergency department report, Dr. Courtney Devlin, Board-certified
in emergency medicine, reported that appellant presented to the emergency room (ER) via
ambulance due to chronic low back pain. Appellant reported a longstanding history of low back
pain secondary to herniated discs with prior surgery in 2012. Dr. Devlin diagnosed herniated
disc and discharged appellant from the ER. She noted that he could return to work on March 30,
2015 with restrictions.
In an April 1, 2015 medical report, Dr. Ravi Yalamanchili, a Board-certified
neurosurgeon, reported that appellant complained of low back and bilateral leg pain. He ordered
a lumbar spine MRI scan due to urinary dribbling and increased leg and back symptoms.
Dr. Yalamanchili related that appellant could return to work on April 13, 2015 without
restrictions.

3

Appellant has a history of prior laminectomy at L5-S1 in 1989.

4
By letter dated December 23, 2013, Dr. Yalamanchili concurred with Dr. Smith regarding appellant’s work
restrictions.

2

In an April 4, 2015 diagnostic report, Dr. Alex Wurm, a Board-certified radiologist,
reported that lumbosacral spine views with flexion-extension revealed mild scoliotic and
degenerative changes.
In another April 4, 2015 diagnostic report, Dr. Robert Mazzei, a Board-certified
diagnostic radiologist, reported that the lumbar spine MRI scan revealed no significant change
when compared to the previous lumbar MRI scan dated September 16, 2013. Dr. Mazzei
reported degenerative disc and facet disease throughout the lumbar spine, no central stenosis or
disc herniation, foraminal stenosis on the left at L4-5 and L5-S1, and foraminal stenosis on the
right at L3-4 and L5-S1.
In an April 15, 2015 report, Dr. Yalamanchili reported that appellant’s diagnostic reports
did not show any instability. He noted that his MRI scan was essentially unchanged from the
one he had 14 months prior with foraminal narrowing, but no central canal narrowing.
Dr. Yalamanchili reported that he did not have an explanation for the urinary dribbling and did
not see any reason for the MRI scan to account for these symptoms. As such, he discharged
appellant from treatment and reported that he could return to work without restrictions on
June 15, 2015.
On May 7, 2015 appellant filed a Form CA-2a alleging a recurrence of total disability
beginning on March 27, 2015. He reported that, since his recurrence in 2012, his condition
continued to worsen resulting in difficulty walking and constant back pain. Appellant stopped
work on March 27, 2015 and did not return.
On May 7, 2015 appellant filed claim for compensation forms (Form CA-7) for leave
without pay beginning March 27, 2015 and continuing.
In a May 13, 2015 return to work slip, Dr. Yalamanchili reported that appellant was off
work from April 1 through May 15, 2015 at which point he could return to full-time work with
permanent restrictions. He noted no lifting, pushing, or pulling over 10 pounds and to avoid
walking and standing for more than 15 minutes at a time.
By letter dated June 22, 2015, OWCP informed appellant that the evidence of record was
insufficient to support his recurrence claim. Appellant was advised of the medical and factual
evidence needed to establish his claim and provided a development questionnaire for completion.
He was afforded 30 days to submit the necessary evidence. No response was received within the
time allotted.
By decision dated August 19, 2015, OWCP denied appellant’s recurrence claim finding
that the medical evidence of record failed to establish a recurrence of disability on or after
March 27, 2015 due to a material change/worsening of his accepted work-related condition.
On August 24, 2015 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative. Appellant continued to submit medical evidence to the record
including a September 16, 2013 diagnostic report by Dr. George Saba, a Board-certified
radiologist, which reported that lumbosacral spine views with flexion-extension revealed
multilevel degenerative arthritis and disc disease.

3

On a September 25, 2013 report Dr. Yalamanchili reported that appellant’s lumbar spine
MRI scan revealed laminectomies on the right at L4-5 and L5-S1. He noted significant bilateral
foraminal stenosis at both L4-5 and L5-S1. Dr. Yalamanchili diagnosed lumbar spondylosis
without myelopathy and lumbar post laminectomy. His remaining medical reports documented
treatment for appellant’s lower back complaints.
In a September 26, 2013 diagnostic report, Dr. John Filigenzi, a Board-certified
radiologist, compared appellant’s current lumbar MRI scan with that from September 17, 2012.
He noted postsurgical changes at L4-5 and L5-S1 and the previously observed right paracentral
disc extrusion at L4-5 had been resected. Dr. Filigenzi reported no recurrent disc herniation and
unchanged small left paracentral disc protrusion at L4-5 indenting the left ventral lateral thecal
sac. He further noted that disc bulges at the remaining levels were also unchanged. Dr. Filigenzi
reported degenerative changes resulting in foraminal stenosis from L2-3 through L5-S1, most
prominent on the right at L5-S1, with no significant change since the prior report. He further
indicated that L5-S1 revealed encroachment upon the descending right S1 nerve root as it exited
thecal sac by disc bulge, facet joint, and ligamentum flavum hypertrophy.
Appellant also submitted medical reports dated October 11, 2007 through November 5,
2014 from Dr. Yalamanchili. In an October 11, 2007 report, Dr. Yalamanchili reported that a
lumbar MRI scan revealed L4-5 stenosis and left-sided disc bulge. In an August 30, 2013 report,
he recommended a repeat MRI scan of the lumbar spine due to the persistence of symptoms.
In a November 12, 2014 consultation report, Dr. Sana Shaikh, Board-certified in pain
medicine, reported that appellant complained of low back pain with lower extremity radiation.
The onset of this pain was gradual and began in August 2012 with his original injury occurring
in August 2007. Dr. Shaikh noted a lumbar laminectomy with discectomy in 1989, as well as in
December 2012. She provided findings on physician examination and reviewed diagnostic
testing. Dr. Shaikh noted that a lumbar spine MRI scan revealed diffuse degenerative disc
disease with spondylosis, most notable at L4-5 and L5-S1 with postsurgical changes. She
diagnosed lumbosacral radiculopathy, lumbosacral spondylosis, degeneration of lumbar
intervertebral disc, chronic pain syndrome, and lumbar postlaminectomy syndrome.
A hearing was held on April 13, 2016. Appellant testified that he stopped work on
March 27, 2015 due to pain and difficulty walking and standing. He explained that he had been
working a limited-duty assignment since August 2013 until he stopped work on March 27, 2015.
Appellant testified that nothing had changed with his job, but that he had to stop work due to
worsening of his pain.
Following the hearing, appellant submitted a May 11, 2016 report from Dr. Yalamanchili.
Dr. Yalamanchili diagnosed low back pain and lumbosacral spondylosis without myelopathy.
He requested that appellant undergo a functional capacity evaluation (FCE) to determine specific
limitations on various activities. Once completed, Dr. Yalamanchili would provide him work
restrictions.
Appellant also submitted a May 25, 2016 FCE.

4

By decision dated June 24, 2016, an OWCP hearing representative affirmed the
August 19, 2015 decision, finding that appellant failed to establish recurrent disability beginning
March 27, 2015 due to a material change/worsening of his accepted August 19, 2007 workrelated injuries.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.5 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.6
OWCP procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. OWCP does not
include a condition that results from a new injury, even if it involves the same part of the body
previously injured.7
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of proof to establish by the weight of the substantial, reliable, and
probative evidence that the disability for which he or she claims compensation is causally related
to the accepted injury. This burden of proof requires that a claimant furnish medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that, for each period of disability claimed, the disabling condition is causally related to
the employment injury, and supports that conclusion with medical reasoning.8 Where no such
rationale is present, the medical evidence is of diminished probative value.9
ANALYSIS
The issue is whether appellant has established a recurrence of disability beginning
March 27, 2015 and continuing causally related to his accepted August 19, 2007 employment
injuries. OWCP accepted appellant’s claim for lumbar strain and L4-5 lumbar disc herniation as
a result of the August 19, 2007 work injury. On December 14, 2012 appellant underwent a right
5

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). Kenneth R.
Love, 50 ECAB 193, 199 (1998).
8

Ronald A. Eldridge, 53 ECAB 218 (2001).

9

Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

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partial lumbar laminectomy and discectomy at L4-5. He stopped work and returned to full duty
with restrictions on August 17, 2013. OWCP accepted a recurrence of disability from
September 14, 2012 until appellant returned to work on August 17, 2013.
The Board finds that appellant has not established a recurrence of disability commencing
March 27, 2015 causally related to his accepted August 19, 2007 employment injury.
Appellant has not alleged a change in his light-duty job requirements. Instead, he
attributed his inability to work due to a change in the nature and extent of his employmentrelated conditions. Appellant, therefore, has the burden of proof to provide medical evidence to
establish that he was disabled due to a worsening of his accepted work-related conditions.10
However, he has not submitted probative medical evidence demonstrating total disability for this
period of time due to his accepted conditions. The Board finds that appellant has not met his
burden of proof to establish his claim.
In support of his claim, appellant submitted a March 26, 2015 report from Dr. Devlin
which reported that he presented to the emergency department for lower back complaints.
Dr. Devlin diagnosed herniated disc and reported that appellant could return to work with
restrictions on March 30, 2015. While she diagnosed disc herniation and found him disabled for
a period of four days, Dr. Devlin failed to provide the causal relationship relating the disability to
his previously accepted work injuries to establish a spontaneous worsening of the accepted
condition.11 As such, this report is insufficient to establish appellant’s recurrence claim.
Appellant also submitted a series of medical reports from Dr. Yalamanchili, his treating
physician. The Board notes that the reports of Dr. Yalamanchili failed to provide sufficient
medical rationale to establish recurrent total disability.
In an April 1, 2015 report,
Dr. Yalamanchili evaluated appellant and ordered a lumbar spine MRI scan. On April 15, 2015
he reviewed the findings of the April 4, 2015 lumbar MRI scan, noting that the reports showed
no instability and were essentially unchanged from the prior study with foraminal narrowing, but
no central canal narrowing. Dr. Yalamanchili reported that appellant was restricted from work
through June 15, 2015, but he failed to find him totally disabled as a result of his accepted
lumbar strain and L4-5 lumbar disc herniation, nor did he provide adequate bridging evidence to
show a spontaneous worsening of the accepted conditions.12 Rather, he reported that he could
not explain appellant’s symptoms as there were no changes in his April 4, 2015 lumbar MRI
scan. The Board notes that an increase in pain alone does not constitute objective evidence of
disability.13 As Dr. Yalamanchili could not determine the cause of appellant’s symptoms, he
failed to establish a work-related recurrence of disability.
In a May 13, 2015 return to work slip, Dr. Yalamanchili reported that appellant was off
work from April 1 through May 15, 2015, at which point he could return to full-time work with
10

D.L., Docket No. 13-1653 (issued November 22, 2013).

11

T.M., Docket No. 06-0440 (issued August 7, 2006).

12

J.H., Docket No. 14-0775 (issues July 14, 2014).

13

See Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1500.6.a(2) (June 2013).

6

permanent restrictions. He noted no lifting, pushing, or pulling over 10 pounds and to avoid
walking and standing for more than 15 minutes at a time. While Dr. Yalamanchili provided
work restrictions, he failed to discuss why appellant was unable to work due to his original
August 19, 2007 employment injury,14 nor did he discuss appellant’s limited-duty assignment to
profess some knowledge as to why he could not work for the claimed periods. The Board has
held that a medical opinion that is not fortified by rationale is of diminished probative value.15
As such, Dr. Yalamanchili’s opinion is insufficient to support that appellant sustained a
spontaneous worsening of his work-related condition sufficient to cause total disability.16
The remaining medical evidence of record is also insufficient to establish appellant’s
recurrence claim. These additional records include reports of Drs. Wurm, Mazzie, Saba, and
Filigenzi.
Dr. Shaikh’s November 12, 2014 report and Dr. Yalamanchili’s medical reports dated
October 11, 2007 through November 5, 2014 are irrelevant to establishing appellant’s claim as
they predate the March 27, 2015 date of disability.17
The April 4, 2015 diagnostic reports of record are also insufficient to establish appellant’s
claim as the physicians interpreted diagnostic imaging studies and provided no opinion on
disability or the cause of appellant’s injury.18
The May 25, 2016 FCE is also insufficient to establish appellant’s claim as there was no
accompanying report by a physician explaining any work restrictions or determining that
appellant was totally disabled as a result of the August 19, 2007 employment injury.19
Appellant did not submit any medical reports from a physician who explained with
medical rationale that he sustained a spontaneous worsening of his accepted conditions on or
after March 27, 2015 as a result of his accepted August 19, 2007 employment injury, sufficient
to cause total disability.20 He has failed to establish by the weight of the reliable, probative, and
substantial evidence, a change in the nature and extent of the injury-related condition resulting in
his inability to perform his employment duties or need for continued medical treatment. As
appellant has not submitted any medical evidence showing that he sustained a recurrence of

14

R.A., Docket No. 14-1327 (issued October 10, 2014).

15

Cecilia M. Corley, 56 ECAB 662 (2005).

16

See Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements merely asserting
causal relationship generally do not discharge a claimant’s burden of proof).
17

See M.C., Docket No. 15-1762 (issued August 16, 2016).

18

J.P., Docket No. 14-0087 (issued March 14, 2014).

19

B.J., Docket No. 15-1576 (issued October 21, 2015). See 5 U.S.C. § 8101(2), which 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.
20

K.P., Docket No. 15-1711 (issued January 14, 2016).

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disability due to his accepted employment injury, the Board finds that he has not met his burden
of proof.21
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of total disability on or after March 27, 2015, causally related to his accepted August 19, 2007
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 24, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 8, 2018
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

21

L.L., Docket No. 13-2146 (issued March 12, 2014). See also William A. Archer 55 ECAB 674, 679 (2004).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mableton, GA, Employer
__________________________________________

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

Docket No. 14-1469
Issued: August 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On June 16, 2014 appellant filed a timely appeal from a December 30, 2013 merit
decision and a May 27, 2014 nonmerit decision of the Office of Workers’ Compensation
Programs1 (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.
ISSUES
The issues are: (1) whether appellant has established entitlement to a schedule award;
and (2) whether OWCP properly refused to reopen appellant’s case for further review on the
merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that everything was done to establish his claim.

1

Appellant did not file an appeal from the June 6, 2014 decision terminating benefits and, as such, is not
currently before the Board. See 20 C.F.R. § 501.3.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 25, 2012 appellant, then a 62-year-old senior mail processor, filed a claim for
a recurrence of disability causally related to a July 29, 2002 employment injury, commencing on
July 19, 2012.3 He alleged that on July 19, 2012 he assisted a coworker with lifting and putting
away rubber floor mats which caused inflammation in his lower back and resulted in severe back
pain. OWCP accepted appellant’s claim for a new traumatic injury for sprain of the lumbar
region of the back.4 It paid compensation benefits.
In a November 7, 2013 report, Dr. Craig Underset, a general practitioner and appellant’s
treating physician, noted that appellant had a history of overuse and manual labor as well as
chronic pain associated with his July 19, 2012 workers’ compensation injury. He noted the
following positive findings: positive muscle spasms and guarding in his thoracic and lumbar
regions, bilateral hip spasm and pain, decreased range of motion in his lower back and S1 JTS
bilaterally; and positive orthopedic tests for soft tissue trauma. Dr. Underset noted that appellant
had not worked since August 1, 2013 because of his chronic pain exacerbations and no light duty
available at his job. He anticipated that appellant would be able to return to work with
restrictions on December 1, 2013.
On November 17, 2013 appellant filed a claim for a schedule award.
By letter dated November 22, 2013, OWCP asked Dr. Underset to submit a medical
opinion detailing the date of maximum medical improvement, the diagnosis upon which the
impairment is based, a detailed description of any permanent impairment, and a final rating of
permanent impairment pursuant to the applicable criteria of the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (2009). Dr. Underset
did not submit a timely response.
By decision dated November 25, 2013, OWCP accepted appellant’s claim for a
recurrence of disability effective August 8, 2013. At that time it expanded the acceptance of
appellant’s claim to include herniated nucleus pulposus L2-S1 and authorized payment for
appropriate periods of disability.
In a decision dated December 30, 2013, OWCP denied appellant’s claim for a schedule
award.
On May 13, 2014 appellant requested reconsideration. In support thereof, he submitted a
May 5, 2014 report wherein Dr. Vidyadhar S. Chitale, a Board-certified neurosurgeon,
interpreted appellant’s May 5, 2014 magnetic resonance imaging (MRI) scan as showing, inter
alia: lumbar disc herniation at L1-2 level with central herniation and thecal sac compression;
right foraminal disc herniation causing significant stenosis at L4-5; bilateral facet effusions and
3

In File No. xxxxxx765, OWCP accepted that on July 29, 2002 appellant experienced lumbosacral disc syndrome
and radiculitis in the performance of duty.
4

After OWCP accepted appellant’s claim, it received an October 25, 2012 traumatic injury claim for the same
incident.

2

bilateral neuroforaminal stenosis at L3-4 level; bilateral facet effusions at L2-3 with mild
neuroforaminal stenosis; disc spondylotic ridging at T1-12 and T12-L1; and conus eads at L1
level. Dr. Chitale also noted multilevel disc degeneration.
Other evidence submitted by appellant since the December 30, 2013 decision includes
work capacity evaluations of February 19 and March 27, 2014 by Dr. Underset wherein he
indicated that appellant was limited to four hours per workday of sitting, walking, standing,
reaching, and twisting. Dr. Underset also limited appellant to bending, stooping, pushing,
pulling, lifting, squatting, kneeling, and climbing to four hours and 10 pounds. Appellant also
submitted a February 28, 2014 impairment rating report, by Dr. Underset, concluding that
appellant had an impairment rating of eight percent of the whole person based on the fifth edition
of the A.M.A., Guides (2001). In reaching this conclusion, the report described flexion, side
bending, gait and strength and discussed neurological findings for reflexes and sensation. The
report concluded that appellant fell under diagnosis-related estimates lumbosacral category II at
page 384 of the fifth edition of the A.M.A., Guides.
By decision dated May 27, 2014, OWCP denied appellant’s request for reconsideration
without conducting a merit review.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA5 and its implementing regulations6 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 stands applicable to all
claimants. OWCP evaluates the degree of permanent impairment according to the standards set
forth in the specified edition of the A.M.A., Guides.7 The A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.8
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for a sprain of the lumbar region of the back and
herniated nucleus pulposus L2-S1. Appellant filed a claim for a schedule award. To be entitled
to a schedule award, he must establish that he is at maximum medical improvement and
sustained a permanent impairment of a scheduled member of the body due to an employment
injury.9
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404.

8

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

9

R.E., Docket No. 14-713 (issued June 26, 2014).

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The Board finds that appellant failed to submit sufficient medical evidence to establish
that he is at maximum medical improvement or the extent of any permanent impairment.
Appellant submitted a November 7, 2013 report by Dr. Underset. However, Dr. Underset did not
provide an impairment rating, discuss whether the accepted condition caused permanent
impairment, or state an opinion as to whether appellant was at maximum medical
improvement.10 Moreover, he indicated that appellant was anticipated to return to work with
restrictions on December 1, 2013, which would indicate that appellant was not at maximum
medical improvement as of the date of Dr. Underset’s November 7, 2013 report. As
Dr. Underset did not support that the accepted condition caused any permanent impairment, his
report is insufficient to establish that appellant has any permanent impairment due to the
accepted condition.
Without probative medical opinion evidence from a physician addressing how appellant’s
impairment correlated to the appropriate edition of the A.M.A., Guides and explaining the causal
relationship between these findings and his permanent impairment, appellant did not meet his
burden of proof to establish entitlement to a schedule award.
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
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,11
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.12 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.13 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.14
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof. He or she need only
submit relevant, pertinent evidence not previously considered by OWCP. When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
10

A schedule award is not payable unless it is determined by probative medical evidence that the employee is at
maximum medical improvement. See D.R., 57 ECAB 720 (2006).
11

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[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).
12

20 C.F.R. § 10.606(b)(3).

13

Id. at § 10.607(a).

14

Id. at § 10.608(b).

4

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.
ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim for a schedule award as he failed to submit sufficient
evidence with regard to permanent impairment. The Board finds that OWCP properly declined
to reopen appellant’s case for further merit review. Appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He also did not advance a relevant
legal argument not previously considered by OWCP.
Although appellant submitted work capacity evaluations by Dr. Underset and the MRI
scan report by Dr. Chitale, they do not address the issue of permanent impairment. The Board
has found that submission of evidence which does not address the particular issue involved does
not comprise a basis for reopening a case.15 Appellant also submitted a February 28, 2014
impairment rating report, by Dr. Underset, concluding that appellant had eight percent whole
person impairment based on the fifth edition of the A.M.A., Guides. However, effective May 1,
2009, schedule awards are determined in accordance with the second printing of the sixth edition
of the A.M.A., Guides.16 Therefore, as Dr. Underset did not apply the correct edition of the
A.M.A., Guides, his report does not constitute pertinent new and relevant evidence and is thus
insufficient to require OWCP to conduct a merit review.
Because appellant has failed to meet any of the criteria enumerated under section
10.606(b)(3) of OWCP’s regulations, he was not entitled to further merit review of the claim.
CONCLUSION
The Board finds that appellant has not established entitlement to a schedule award. The
Board further finds that OWCP properly denied merit review under 5 U.S.C. § 8128(a).

15

S.L., Docket No. 14-81 (issued May 1, 2014).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 27, 2014 and December 30, 2013 are affirmed.
Issued: August 18, 2015
Washington, D.C.

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
L. STOKES MEDICAL CENTER,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 16-0890
Issued: November 9, 2016

Case Submitted on the Record

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

JURISDICTION
On March 29, 2016 appellant, through counsel, filed a timely appeal of a February 16,
2016 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 to consider 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 (2006). 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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective December 13, 2014.
On appeal counsel contended that OWCP’s decision was contrary to fact and law.
FACTUAL HISTORY
On February 22, 2012 appellant, then a 53-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on February 18, 2012 a patient hit her from behind with his power
wheel chair, thereby knocking the breath out of her. The patient then put his wheelchair into
reverse pinning her between his wheel chair and the closet. She alleged that she sustained
injuries to her middle back and the back of both thighs and both legs. Appellant stopped work
on February 19, 2012, but returned to work full-time restricted duty on March 26, 2012.
On May 9, 2012 appellant was in a nonwork-related motor vehicle accident. She was
hospitalized for a nonwork-related condition on May 17, 2012. Appellant returned to restricted
duty on May 25, 2012. She stopped work again on June 14, 2012, and filed a claim for wageloss compensation (Form CA-7) commencing June 17, 2012. Appellant was on military leave
from June 17 through 30, 2012. By letter dated June 29, 2012, the employing establishment
controverted her claim for further wage-loss compensation.
On July 2, 2012 OWCP accepted appellant’s claim for sprain of the lumbar region and
thoracic regions of the back, and contusions of the back, left hip, and left thigh. On October 11,
2012 it expanded the acceptance to include left L5-S1 herniated disc to the list of accepted
conditions. Appellant returned to restricted duty on February 13, 2013 and returned to full-time
sedentary duty on April 15, 2013. Effective September 8, 2013, she was assigned to work a new
temporary modified full-time position.
In a November 15, 2013 progress note, Dr. Jerome B. Yokiel, appellant’s treating
physician Board-certified in anesthesiology and pain medicine, diagnosed lumbar strain. He
noted that appellant was having persistent symptoms for what was described as a lumbar strain
injury, but that she had persistent symptoms of radicular-type pain. On March 5, 2014
Dr. Yokiel diagnosed lumbar stain, thoracic strain, and back contusion.
On July 25, 2014 OWCP prepared a statement of accepted facts and referred appellant to
Dr. Manhal Ghanma, a Board-certified orthopedic surgeon, for a second opinion regarding the
status of appellant’s accepted conditions. In an August 27, 2014 opinion, Dr. Ghanma listed
appellant’s allowed conditions as lumbar sprain, thoracic sprain, back contusion, hip contusion,
thigh contusion, and left L5-S1 disc herniation. He reviewed appellant’s medical record and
provided results on physical examination. Regarding appellant’s March 2, 2012 MRI scan
report, Dr. Ghanma noted multiple abnormalities with a central disc at L3-L4, bulging disc at L4L5, and left central disc herniation at L5-S1. Dr. Ghanma noted that his physical examination of
appellant’s lumbosacral spine revealed no evidence of spine listing or abnormal curvature and no
bruising or discoloration. He noted no scarring and no swelling or increased temperature in the
lumbar region. Dr. Ghanma noted that she was tender to palpitation in her low back, but there

2

was no lumbar spasm on examination. He related that appellant complained of global decrease
in left leg and left foot sensation, but that appellant gave almost no effort to move her left big toe
or other muscles of her foot, and exhibited breakaway weakness to testing of her right foot and
ankle muscles. Dr. Ghanma noted 20 degrees each of right and left lateral lumbar bend. He
indicated that her knee and ankle reflexes were depressed bilaterally. Dr. Ghanma noted that
appellant’s examination was characterized by significant abnormal illness behavior and symptom
magnification, and that it was his opinion that the examination findings with respect to motor
function were nonphysiologic, as were the sensory examination findings. He found that her
thoracic examination and hip motion were normal.
In response to a question from OWCP which requested that he provide a rationalized
opinion, documented with objective findings, as to whether appellant had any active residuals of
the accepted conditions, Dr. Ghanma responded that appellant no longer had any residuals of the
accepted conditions, her examination findings reflected abnormal illness behavior and symptom
magnification, as opposed to any actual evidence of injury. He opined that appellant was
capable of returning to her normal work duties, and he indicated that he had no recommendation
for any further treatment. Dr. Ghanma concluded that appellant had recovered from her work
injury and that her prognosis was excellent.
In an October 7, 2014 report, Dr. Todd S. Hochman, Board-certified in internal medicine,
indicated that he had read Dr. Ghanma’s report. He conducted a physical examination and
determined that appellant had midline discomfort in her lumbar region and that there was
tenderness to the right and left of midline. Dr. Hochman noted that appellant complained of pain
to the posterolateral lower extremities with straight leg raising, more on the left. He noted that
patellar reflexes were decreased but symmetrical, that appellant was very guarded with lumbar
flexion and extension, and that there was some weakness throughout her lumbar extremities.
Dr. Hochman opined that, based on the history as reported by appellant and the physical
examination, it was evident that appellant remained symptomatic from the February 18, 2012
work injury, and could not return to her full-duty position as a nurse in the spinal cord unit. He
ordered an updated lumbar MRI scan, and requested a functional capacity evaluation.
Dr. Hochman recommended that appellant remain under the care of Dr. Yokiel for pain
management.
On October 27, 2014 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits as she no longer had residuals of the February 18, 2012
employment injury. Appellant was afforded 30 days to file a response and submit further
evidence.
In an October 9, 2014 note, Dr. Hochman noted that he requested an updated MRI scan
and functional capacity evaluation, and that he would keep appellant’s attorney advised of any
changes to appellant’s medical condition.
In an October 29, 2014 report, Dr. Yokiel diagnosed lumbar sprain, noted that appellant
was improved, but recommended a new MRI scan and functional capacity evaluation.
In a November 1, 2014 MRI scan of the lumbar spine, Dr. Douglas S. Arnson, a Boardcertified radiologist, listed T12-L1 disc herniation impinging the dural sac without stenosis; L3-4

3

mild bilateral foraminal impingement; and L5-S1 disc herniation impinging the epidural fat with
contact to the dural sac.
In a November 5, 2014 functional capacity evaluation report, Visar Duane, an
occupational therapist indicated that the preponderance of evidence indicated less than full
participation, and the performance criteria profile was consistent with possible symptom
magnification. He opined that the demonstrated impairment data suggested that appellant may
possess true dysfunction though the data may not represent her true status at this time.
Mr. Duane opined that the demonstrated physical functions data should not be used to project
current work capacity since appellant could likely have higher functional ability. He opined that
appellant should be able to function at least at a sedentary physical demand level.
In a November 28, 2014 note, Dr. Yokiel contended that appellant had disc herniation of
her lumbar spine which appeared to be related to the accident in question, as he was not aware of
any previous MRI scan examination of the lumbar spine or difficulties with her spine prior to the
accident. He opined that unless there was evidence to the contrary, he believed that the lumbar
disc herniation should be added as an allowance in her claim which he believed the source of her
significant pain and the source of her inability to work.
By decision dated December 9, 2014, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective December 13, 2014.
On December 15, 2014 appellant requested a hearing before an OWCP hearing
representative.
In a September 30, 2015 report, Dr. Yokiel indicated that appellant returned with
continued complaints of low back pain with radiation down the lower extremities bilaterally. He
listed his impression as lumbar disc displacement, and noted that he would like to schedule a
bilateral L4-5 and L5-S1 nerve root injection.
At a hearing held on December 18, 2015, appellant noted that she was then working as a
community health nurse coordinator with the employing establishment. She contended that she
was not cured from her injury, and she noted that she continued to have low back pain, spasm,
pain radiating to both sides of her hip all the way down both legs to the calves of her side, worse
on the left side of the leg all the way down to the ankles.
By decision dated February 16, 2016, the hearing representative affirmed the
December 9, 2014 termination decision, finding that the weight of the medical evidence rested
with the second opinion physician, Dr. Ghanma.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3 The right to
medical benefits for an accepted condition is not limited to the period of entitlement to
3

Mohamed Yunis, 42 ECAB 325, 334 (1991); see also J.P., Docket No. 13-1049 (issued August 16, 2013).

4

compensation for disability.4 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition which
requires further medical treatment.5
ANALYSIS
OWCP accepted appellant’s claim for sprain of the lumbar region and thoracic regions of
the back, contusions of the back, left hip and left thigh, and L5-S1 herniated disc. The hearing
representative affirmed the termination of appellant’s medical benefits and wage-loss
compensation, effective December 13, 2014. In reaching this conclusion, OWCP determined
that the weight of the medical evidence was represented by the opinion of the second opinion
physician, Dr. Ghanma.
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and medical benefits. Dr. Ghanma conducted a physical examination and reviewed appellant’s
record, including the medical evidence. He noted that appellant’s March 2, 2012 MRI scan
report, revealed multiple abnormalities, including the left central disc herniation at L5-S1.
Dr. Ghanma opined that appellant no longer had any residuals of the accepted conditions, based
upon his physical examination of appellant wherein he related that appellant gave a reduced
effort when asked to move, and that her examination was characterized by abnormal illness
behavior and symptom magnification.
The Board notes that prior to the termination of appellant’s compensation benefits but
after Dr. Ghanma had examined appellant, the treating physicians, Dr. Hochman and Dr. Yokiel,
both recommended that appellant undergo a new MRI scan in 2014 to determine the status of her
accepted conditions. Based upon their recommendation, appellant underwent a November 1,
2014 MRI scan of the lumbar spine, which was interpreted by Dr. Arnson as revealing disc
herniations from T12 through L5-S1. OWCP however did not provide the updated MRI scan
results to Dr. Ghanma for review prior to termination of compensation benefits. Further, new
medical reports had been received by OWCP from Drs. Hochman and Yokiel, as well as a
functional capacity evaluation. Their reports were also not provided to Dr. Ghanma for his
review prior to the termination. Once OWCP undertakes development of the record, it must do a
complete job in procuring medical evidence that will resolve the relevant issues in the case.6
Dr. Ghanma’s opinion regarding the status of appellant’s accepted conditions was, therefore, not
based on the entire evidence of record and cannot serve as the weight of the medical evidence.7
The Board finds that Dr. Ghanma’s second opinion was insufficient to establish that all
residuals from the accepted February 18, 2012 employment injury had resolved.8
4

See T.P., 58 ECAB 524 (2007).

5

See I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

6

See R.M., Docket No. 16-0147 (issued June 17, 2016).

7

See M.S., Docket No. 08-99 (issued May 13, 2008); James R. Taylor, 56 ECAB 537 (2005).

8

See V.A., Docket No. 15-1073 (issued November 25, 2015).

5

CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective December 13, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 16, 2016 is reversed.
Issued: November 9, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 15-1173
Issued: September 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 29, 2015 appellant, through counsel, filed a timely appeal of a February 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has established a ratable hearing loss in his right ear
warranting him to a schedule award and more than eight percent loss of hearing in his left ear for
which he received a schedule award.
FACTUAL HISTORY
On January 24 and February 24, 2011 appellant, then a 54-year-old heavy mobile
equipment mechanic, filed an occupational disease claim alleging that he had developed bilateral
1

5 U.S.C. § 8101 et seq.

hearing loss and ringing in both ears making it difficult to hear normal conversation and
impossible to hear with background noise. He stated that he first became aware of his condition
on December 5, 2007 and first realized that this was caused or aggravated by his employment on
April 7, 2009. Appellant stated that he was told by employing establishment medical staff that
he was experiencing normal industrial hearing loss.
OWCP requested additional factual and medical evidence in support of appellant’s claim
by letter dated February 25, 2011. Appellant alleged that he began working as a civilian
employee for the employing establishment on August 18, 1981 and was exposed to hammers,
impact wrenches, grinders, and automotive engines and diesel engines through 1992. Beginning
in 1992 he was also exposed to ship engines and engine rooms working on the Paxman Engine
project. Appellant began working in an office setting in May 2004 with an occasional visit to the
shop floor where he was exposed to hammers, impact wrenches, and grinders. He noted that he
had filed a claim through the Department of Veterans Affairs, (VA). The VA accepted partial
responsibility for the ringing in his ears, but would not cover appellant’s hearing loss or provide
hearing aids as the hearing loss occurred while he was a civilian employee at the employing
establishment.
Appellant filed another claim for hearing loss in both ears and tinnitus before the VA on
April 10, 2008. In a decision dated March 30, 2009, the VA found that he had served in the Air
Force from May 27, 1976 through August 26, 1980. The VA found a service connection for
appellant’s hearing loss in his right ear, but denied compensation as he did not have ratable
hearing loss under that system. The VA granted service connection for 10 percent impairment
due to tinnitus effective June 16, 2008. The VA found that appellant’s loss of hearing in his left
ear was not related to his military service.
Appellant submitted audiograms from the employing establishment hearing conservation
program beginning in 1986 intermittently through 2011. In a report dated September 19, 1996,
Dr. John D. Amar, a Board-certified otolaryngologist, diagnosed high frequency hearing loss due
to noise exposure and recommended a job in a less noisy environment. Appellant also submitted
a noise survey dated January 22, 1997, indicating noise levels from 80 to 106.2 decibels and
recommending hearing protection for 135 feet from the employing establishment. Testing of the
Paxman engine indicated noise exposure of 118.7 decibels and with a recommended exposure
time of four hours with double hearing protection. On October 9, 1998 the employing
establishment noted the noise exposure at the Paxman engine testing as well as appellant’s
request to be removed from this assignment due to hazardous noise. Appellant’s physician
recommended that appellant be removed from this location from September 20, 1996 through
September 21, 1998.
OWCP referred appellant for a second opinion evaluation with Dr. Natee Poopat, a
Board-certified otolaryngologist, on May 13, 2011. In a report dated June 15, 2011 Dr. Poopat
diagnosed noise-induced hearing loss. He found a moderate-to-severe high-frequency
sensorineural hearing loss in the right and left ears. Dr. Poopat opined that appellant’s hearing
loss was more likely than not related to his occupational noise exposure and recommended
hearing aids.

2

Appellant’s audiogram demonstrated testing at 500, 1,000, 2,000, and 3000 Hertz and
revealed on the right decibel losses of 5, 5, 30, and 50 respectively and on the left 15, 5, 45, and
55 respectively.
OWCP accepted appellant’s claim for bilateral sensory hearing loss on August 3, 2011.
Appellant requested a schedule award on February 8, 2012.
An OWCP medical adviser reviewed appellant’s claim on March 21, 2012 and found that
his average hearing loss of 22.5 decibels on the right was less than the fence of 25 decibels such
that he had no ratable loss of hearing in the right ear. He averaged appellant’s decibel loss in the
left ear and reached 30 decibels. The medical adviser then subtracted the fence of 25 decibels
and multiplied the balance of 5 decibels by 1.5 to reach 7.5 percent monaural loss of hearing in
his left ear. He authorized a hearing aid and found that appellant’s tinnitus was not described as
impinging on activities of daily living and was not considered in appellant’s schedule award.
By decision dated March 25, 2013, OWCP granted appellant a schedule award for 8
percent loss of hearing in his left ear, which it noted was rounded up to the next whole number
from the computed 7.5 percent. It found that he was not entitled to a schedule award for the
employment-related loss of hearing in his right ear. Counsel requested an oral hearing before an
OWCP hearing representative on April 15, 2013.
Appellant testified at the telephone hearing held on April 14, 2013 that his hearing loss
was worse in his right ear. Counsel stated that he would submit additional medical evidence
within 30 days. However, OWCP did not receive additional evidence.
By decision dated March 13, 2014, the hearing representative found that appellant did not
currently have a ratable loss of hearing in his right ear and that he had no more than eight percent
loss of hearing in his left ear for which he had received a schedule award.
Counsel requested reconsideration on November 19, 2014. Appellant requested an
increased schedule award on September 24, 2014. Counsel submitted additional audiograms and
a worksheet calculating additional hearing loss for schedule award purposes.
By decision dated February 3, 2015, OWCP denied modification of its prior decision
finding that the evidence was insufficient to establish additional impairment. It noted that
appellant might be eligible for an additional schedule award based on additional employment
exposures and directed him to file a new occupational disease claim, if he felt this was
appropriate.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use of scheduled members or functions of the body. FECA, however, does not
2

5 U.S.C. §§ 8101-8193, 8107.

3

20 C.F.R. § 10.404.

3

specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the discretion of OWCP.
For consistent results and to ensure equal justice, the Board has authorized the use of a single set
of tables so that there may be uniform standards applicable to all claimants. OWCP evaluates
the degree of permanent impairment according to the standards set forth in the specified edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides) (6th ed. 2009).4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged. 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. The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. 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. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.5
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.6
ANALYSIS
An OWCP medical adviser reviewed the report of Dr. Poopat, whom OWCP referred
appellant to for a second opinion otologic examination and audiological evaluation. Dr. Poopat
determined that appellant sustained bilateral hearing loss due to his exposure to noise in the
workplace. The medical adviser concluded that appellant had no ratable hearing impairment in
his right ear. He properly applied OWCP’s standardized procedures to Dr. Poopat’s June 15,
2011 audiogram, which recorded frequency levels at the 500, 1,000, 2,000, and 3,000 cycles per
second levels and revealed decibel losses of 5, 5, 30, and 50 respectively for a total decibel loss
of 90 on the right. The medical adviser then followed established procedures and divided this
total by 4 which resulted in an average loss of 22.5 decibels and subtracted the fence of
25 decibels to equal 0 decibels. He then multiplied this by the established factor of 1.5 to result
in a 0 percent monaural hearing loss for the right ear. The medical adviser then properly
followed the same procedure on the left, noting that the test results for the left ear at the
frequencies of 500, 1,000, 2,000, and 3,000 cycles per second revealed decibel losses of 15, 5,
45, and 55 decibels respectively, for a total of 120 decibels. He divided this by 4, for an average
4

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); see also, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
5

See D.D., Docket No. 15-193 (issued May 11, 2015); R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52
ECAB 143 (2000).
6

A.M.A., Guides 249.

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hearing loss of 30 decibels, subtracted the fence of 25 decibels to equal 5 decibels, and
multiplied this by the established factor of 1.5, for a 7.5 percent monaural hearing loss for the left
ear, which OWCP properly rounded up to the next whole number of 8 percent.7
The Board finds that Dr. Poopat properly conducted an audiogram which showed hearing
loss. The medical adviser utilized those findings and properly applied the A.M.A., Guides to
arrive at eight percent left ear monaural hearing loss. The Board finds that the reports were
thorough, detailed, and properly applied the A.M.A., Guides. Appellant has not established that
he has more than eight percent hearing loss on the left for which he received a schedule award,
or that the hearing loss in his right ear was sufficiently significant to be ratable.
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.
CONCLUSION
The Board finds that appellant has no more than eight percent permanent loss of hearing
in his left ear for which he has received a schedule award. The Board further finds that he has
not established that his loss of hearing in the right ear is sufficiently significant to be ratable for
purposes of a schedule award.

7

The Board notes that it is the policy of OWCP to round the calculated percentage of impairment to the nearest
whole point. See Robert E. Cullison, 55 ECAB 570 (2004); Federal (FECA) Procedure Manual, supra note 4 at
Chapter 3.700.3(b) (January 2010).

5

ORDER
IT IS HEREBY ORDERED THAT February 3, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 2, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, DALLAS BULK MAIL
CENTER, Coppell, TX, Employer
__________________________________________

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Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 13-2028
Issued: September 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 3, 2013 appellant, through his representative, filed a timely appeal of a
March 21, 2013 Office of Workers’ Compensation Programs’ (OWCP) merit decision
terminating his compensation benefits effective July 3, 2011. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective July 3, 2011; and (2) whether appellant has met his burden of
proof in establishing continuing disability on or after July 3, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 4, 2003 appellant, then a 42-year-old mail handler, filed a traumatic injury
alleging that on October 6, 2003 he injured his low back while lifting a box in the performance
of duty. OWCP accepted his claim for lumbar herniated nucleus pulposus on February 10, 2004.
Appellant returned to light-duty work on February 18, 2004.
The employing establishment informed appellant on March 10, 2004 that he failed to
report for duty on March 8, 2004 and that he failed to provide appropriate notification. It found
that appellant was absent without leave on March 8, 2004.
Appellant filed a claim for recurrence of disability on June 29, 2004 alleging that he
returned to full duty in March 2004 and on June 15, 2004 had to stop work due to recurrent pain
and disability.
By decision dated October 5, 2004, OWCP denied appellant’s claimed recurrence of
disability. Appellant requested an oral hearing before an OWCP hearing representative on
October 25, 2004. In a decision dated September 28, 2005, the hearing representative denied
appellant’s claim for recurrence and suggested that the evidence was supportive of a new
traumatic injury.
Appellant filed a second claim for traumatic injury on October 17, 2005 and alleged that
he sustained a low back injury on June 14, 2004 while pulling in the performance of duty.2
OWCP accepted this claim for aggravation of displaced lumbar disc and thoracic or lumbosacral
radiculopathy. It combined appellant’s claims on January 20, 2006 with claim number
xxxxxx983 serving as the master file. OWCP authorized continuation of pay on April 12, 2006.
It granted appellant compensation from July 30, 2004 through January 6, 2006.
On August 3, 2006 the employing establishment stated that appellant’s light-duty position
was available and that appellant was not prohibited from returning to work. It also stated that
appellant had not provided medical documentation and that he had been provided an absence
inquiry letter on March 16, 2006 requesting documentation to substantiate his extended absence.
The employing establishment provided appellant with a second absence inquiry letter on
August 21, 2006. It stated that he had been absent for an extended time and had not provided
acceptable documentation.
On October 17, 2006 appellant underwent an intradiscal electrothermal disc
decompression, nuclectomy and annuloplasty.
OWCP entered appellant on the periodic rolls on July 26, 2007 effective January 7, 2006.
On August 29, 2007 OWCP requested that the employing establishment provide
information regarding whether appropriate light duty was available.
The employing
establishment provided information regarding a modified mail handler position on
2

Claim number xxxxxx357.

2

August 29, 2007. It offered appellant that light-duty assignment on October 30, 2007. In a letter
dated December 6, 2007, OWCP informed him that the light-duty position was suitable work. It
allowed appellant 30 days to accept the position or offer his reasons for refusal.
By decision dated January 8, 2008, OWCP noted that appellant had responded to their
offer but that the reasons he gave for refusing the position were not valid. It allowed him 15
days to accept the position.
Appellant returned to the modified mail handler position effective October 25, 2007. In a
decision dated February 14, 2008, OWCP terminated his compensation effective January 18,
2008 because his actual wages met or exceeded his date-of-injury position. Appellant accepted a
light-duty position on January 18, 2008.
In a letter dated June 27, 2008, the employing establishment informed appellant that he
was not eligible for Family and Medical Leave Act (FMLA) coverage as he did not have the
required one year of qualifying employment. It directed him to submit acceptable documentation
from the first day of his absence explaining the reason for his absence. The employing
establishment allowed three days for a response.
On August 4, 2008 the employing establishment informed appellant that he was charged
with absence without leave from June 7 through August 5, 2008. Appellant filed a grievance on
September 6, 2008 alleging that he received a notice of removal for unacceptable conduct
(Attendance AWOL) on August 20, 2007. He alleged that he had been absent due to his
mother’s terminal illness and his own health problems.
On August 27, 2008 OWCP accepted appellant’s claim for the additional condition of
thoracic or lumbosacral neuritis or radiculitis.
Appellant submitted a statement dated April 10, 2009 alleging that his mother died on
October 19, 2008.
Appellant underwent an anterior lumbar interbody fusion at L5-S1 on June 10, 2009.
On June 29, 2009 appellant filed a claim for compensation requesting wage-loss
compensation from August 8, 2008 through May 31, 2009.
On August 8, 2009 appellant submitted an arbitration decision dated August 28, 2009
finding that the employing establishment had just cause to provide him with a notice of removal
for unacceptable conduct on August 20, 2008, specifically absence without leave. The arbitrator
noted that appellant’s mother had been diagnosed with a terminal condition on June 6, 2008 and
that appellant notified his supervisor and provided medical documentation from the emergency
room. The arbitrator noted that appellant was excused for work the day his mother was taken to
the emergency room on June 6, 2008. Appellant did not, however, call or report for duty again
until June 20, 2008 when he requested light-duty work and provided medical documentation of
work restrictions. His supervisors provided him with a light-duty request form and directed him
to have his doctor to complete it and then return to work. Appellant’s supervisors told him that
he would not be allowed to work until after his doctor completed the light-duty form. Appellant
stated that he had difficulties obtaining an appointment and did not see his physician until
3

August 2008. The arbitrator found that it was unreasonable for appellant to be absent from work
for two months with no communication with his employer.
By decision dated August 18, 2009, OWCP denied appellant’s claim for compensation
for the period August 8, 2008 through May 31, 2009. Appellant requested a review of the
written record. By decision dated December 1, 2009, the hearing representative reversed
OWCP’s decision and found that appellant had established entitlement to compensation for the
period August 8, 2008 to May 31, 2009.
In a letter dated September 5, 2009, appellant stated that the employing establishment did
not have a just cause for removing him from his position. He stated that he provided
documentation concerning his mother’s terminal illness and resulting death. Appellant also
stated that he was charged with absence without leave on dates that he was totally disabled due
to his employment injuries. He argued that the employing establishment removed him unjustly
and that the action was punitive as there were no other disciplinary actions against appellant.
Appellant’s attending physician, Dr. Bryce L. Benbow, an osteopath, opined on March 9,
2010 that appellant could return to sedentary work. He completed a work capacity evaluation on
March 9, 2010. Dr. Benbow indicated that appellant could work six hours a day with restrictions
of sitting up to six hours, walking, standing and reaching for one hour each, pushing and pulling
for two to four hours as well as lifting for two hours with no squatting, kneeling or climbing.
OWCP informed appellant on April 20, 2010 that he should make every effort to return to
regular work within one year. It found that the medical evidence established that he could return
to limited-duty work. OWCP referred appellant for vocational rehabilitation.
The employing establishment informed OWCP that appellant was not provided with a job
offer as he was terminated for disciplinary issues not related to his injuries.
Dr. Benbow provided an additional work capacity evaluation on June 1, 2010. He again
opined that appellant could work six hours a day, sitting up to six hours, walking and standing
for one hour each and reaching up to two hours with no reaching above the shoulder or twisting.
Dr. Benbow found that appellant could push and pull up to 10 pounds for four hours a day and
lift up to 10 pounds for two hours a day.
The vocational rehabilitation counselor completed a report on June 15, 2010 and found
that appellant was capable of performing the position of cashier or medical records clerk.
Appellant underwent a functional capacity evaluation. In a November 16, 2010 work
capacity evaluation, Dr. Benbow found that appellant was able to work eight hours a day with
the following restrictions: sit and reach for six hours a day, stand and reach for two hours and
reach above the shoulder for one hour. He indicated that appellant could not twist, stoop or
bend, but that appellant could operate a motor vehicle for four hours a day. Dr. Benbow
restricted appellant’s pushing and pulling to 10 pounds for up to four hours a day and lifting was
restricted to 10 pounds for two hours a day. He found that appellant could squat for two hours
and kneel and climb for 30 minutes.

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Dr. Benbow also completed a narrative report on November 16, 2010, stating that
appellant could return to some light, sedentary work. He also recommended a dorsal column
stimulator.
Placement with new employers services were provided for 90 days. However, appellant
was unable to secure a position.
In a letter dated May 24, 2011, OWCP proposed to terminate appellant’s compensation
benefits. It noted that he was capable of working eight hours a day with restrictions and that the
employing establishment had terminated him for unacceptable attendance on August 20, 2008.
OWCP found that Dr. Benbow reported on November 16, 2010 that appellant no longer had
disability or restrictions from working as a result of his accepted employment injury.
By decision dated July 1, 2011, OWCP terminated appellant’s compensation benefits
effective July 3, 2011. It reviewed the work restrictions provided by Dr. Benbow in his
November 16, 2010 report and stated that appellant would have been able to return to a lightduty position at the employing establishment had he not been terminated for cause.
Appellant’s representative requested an oral hearing on September 11, 2011. By decision
dated October 17, 2011, the Branch of Hearings and Review denied appellant’s request for an
oral hearing as untimely. In exercising its discretion, the Branch of Hearings and Review further
denied the request, finding that the issue could be addressed through the reconsideration process.
Dr. Edward F. Wolski, a family practitioner, submitted medical reports dated October 14,
2011 indicating that appellant was partially disabled and capable of working.
Appellant requested reconsideration on February 8, 2012. He argued that OWCP
improperly terminated appellant’s compensation benefits as appellant’s attendance deficiencies
were the result of the accepted work injury. Appellant further argued that he continued to
experience disability due to his accepted employment injuries.
Appellant also submitted additional medical evidence from Dr. Benjamin C. Dagley, an
osteopath. In a report dated January 30, 2012, Dr. Dagley opined that appellant was totally
disabled and unable to work since the June 10, 2009 surgery.
By decision dated March 15, 2012, OWCP denied modification of its prior decision.
Appellant requested reconsideration on January 10, 2013. He alleged that OWCP had not
reviewed the medical evidence including a report dated October 14, 2011 from Dr. Wolski and
Dr. Dagley. Appellant’s representative further alleged that the basis for appellant’s termination
from employment by the employing establishment was associated with his employment injury.
By decision dated March 21, 2013, OWCP denied modification of its prior decisions.

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LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.4
ANALYSIS -- ISSUE 1
In terminating appellant’s monetary compensation, OWCP made no accurate finding with
respect to whether appellant’s disability had ceased. It erroneously stated in the May 24, 2011
proposed termination that Dr. Benbow reported on November 16, 2010 that appellant had no
disability or restrictions as a result of his employment injuries. The Board finds that Dr. Benbow
did not make such a finding, instead continuing to support appellant’s partial disability for work.
OWCP did not discuss whether the weight of the medical evidence established that appellant was
physically capable of returning to work as a mail handler, the position he held at the time of his
injury. Finally, it did not establish that appellant suffered no loss of wage-earning capacity after
July 3, 2011, the date OWCP terminated his monetary compensation.
OWCP terminated appellant’s monetary compensation on the grounds that his current
disability for work was the result of being terminated for cause by the employing establishment,
implicitly finding that his disability for work was no longer causally related to the employmentrelated conditions accepted by OWCP. In similar cases where employment has been terminated
for misconduct and disability is subsequently claimed, the Board has held that disability benefits
are payable regardless of whether the termination of employment was for cause if the medical
evidence establishes that appellant was unable to perform his assigned duties due to his injuryrelated condition.5 As OWCP did not evaluate the medical evidence to determine whether
appellant continued to experience disability as a result of his injury-related condition, the Board
finds that OWCP failed to meet its burden of proof to terminate appellant’s compensation
benefits and that the September 3, 2013 decision must be reversed.6
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
compensation benefits effective July 3, 2011.

3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

Id.

5

L.B., Docket No. 10-1213 (issued November 23, 2010); Regina C. Burke, 43 ECAB 399 (1992).

6

Due to the disposition of this issue by the Board, the second issue on appeal is rendered moot and will not be
addressed.

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ORDER
IT IS HEREBY ORDERED THAT the September 3, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.7
Issued: September 24, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7

Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision, was no longer a member
of the Board after May 16, 2014.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JESSE BROWN VETERANS AFFAIRS
MEDICAL CENTER, Chicago, IL, Employer
__________________________________________

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

Docket No. 20-0044
Issued: May 19, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 4, 2019 appellant, through counsel, filed a timely appeal from an August 15,
2019 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left hand condition
causally related to the accepted August 25, 2018 employment incident.

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.

FACTUAL HISTORY
On September 14, 2018 appellant, then a 65-year-old housekeeper, filed a traumatic injury
claim (Form CA-1) alleging that on August 25, 2018 he sustained a “left hand contusion which
turned into a cyst” when he hit his left hand on a connecting pole when reattaching a footboard to
a bed while in the performance of duty. He did not stop work.
In a September 18, 2018 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of additional medical evidence needed and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
In response, appellant submitted an employing establishment form “report of employee’s
emergency treatment” dated September 11, 2018, indicating that he had sustained a left wrist
injury.
An x-ray of the left wrist dated September 14, 2018 revealed no acute fracture or
dislocation and soft tissue prominence over the palmar aspect of the wrist, likely related to a
clinically evident cyst.
On September 28, 2018 the employing establishment controverted appellant’s claim
contending that he had failed to provide medical evidence to support a causal relationship between
his left hand contusion/cyst and his federal employment. It noted that he had previously filed a
similar traumatic injury claim, under OWCP File No. xxxxxx434, that had been denied on
March 14, 2014 and speculated that his injury might have been caused by nonwork factors.
In a letter dated October 10, 2018, appellant requested an extension of time to submit
additional medical evidence before a decision on his claim was issued, as he had been unable to
secure an appointment with a physician within a reasonable amount of time. In an October 12,
2018 response to OWCP’s questionnaire, he reiterated that he had hit his hand on August 25, 2018
when he was cleaning a bed and reattaching the footboard. Appellant noted that, while his hand
initially seemed to be okay, after a day or two, a cyst had formed. He further explained that he
had previously sustained a left hand injury in 2013 and filed a claim.
In a report dated October 22, 2018, Dr. Paul E. Papierski, a Board-certified orthopedic
hand surgeon, diagnosed left wrist ganglion and post-traumatic osteoarthritis of the left wrist. He
noted that appellant had hit the palm of his hand on a bed in August 2018 while at work and later
developed a mass to his volar wrist. Appellant had also reported some numbness and weakness.
By decision dated October 24, 2018, OWCP denied appellant’s claim finding that the
August 25, 2018 employment incident occurred as alleged, but the medical evidence of record was
insufficient to establish causal relationship between the diagnosed left hand conditions and the
accepted August 25, 2018 employment incident.
On November 19, 2018 appellant requested reconsideration. In support of his request, he
submitted an October 22, 2018 report from Dr. Papierski who reiterated his diagnoses and noted
that an x-ray performed on September 14, 2018 showed mild scaphoid widening, partial
lunotriquetral coalition, and a chronic ulnar styloid separation. In an addendum dated November 3,
2018, noted at the bottom of the October 22, 2018 report, Dr. Papierski directed that appellant had
a traumatic injury to the left wrist and the development of either “a hematoma which is
2

encapsulated or a cyst as a result of injury from August 2018. [Magnetic resonance imaging]
(MRI) [scan] is required in order to fully evaluate and make a treatment plan for this work-related
injury.”
By decision dated February 14, 2019, OWCP denied modification of its October 24, 2018
decision.
On May 20, 2019 appellant, through counsel, requested reconsideration and submitted an
April 16, 2019 MRI scan of the left wrist, which demonstrated a large, mildly complex cyst at the
volar and ulnar aspect of the left wrist, compatible with a mildly complex ganglion cyst; chronic
fracture deformity of the triquetrum, scaphoid, and ulnar styloid; chronic tear of the scapholunate
ligament; distal radial ulnar joint effusion; and marked diffuse thinning of the triangular
fibrocartilage disc.
By decision dated August 15, 2019, OWCP denied modification of its February 14, 2019
decision.
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 has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 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 allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the

3

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).
6

T.M., Docket No. 19-0380 (issued June 26, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

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nature of the relationship between the diagnosed condition and the specific employment incident.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
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left hand
condition causally related to the accepted August 25, 2018 employment incident.
In support of his claim, appellant submitted medical reports from Dr. Papierski diagnosing
left wrist ganglion and post-traumatic osteoarthritis of the left wrist. In a November 3, 2018
addendum report, Dr. Papierski referred to appellant’s left wrist injury and noted that it was a
work-related injury. While he made an affirmative opinion in support of causal relationship, he
did not explain how or why the left wrist injury had been a result of appellant’s employment. The
Board has held that a report is of limited probative value regarding causal relationship if it does
not contain medical rationale explaining how a given medical condition/disability was related to
employment factors.11 The November 3, 2018 addendum report is thus insufficient to establish
appellant’s claim. In the remainder of his reports, Dr. Papierski generally noted that appellant hit
the palm of his hand on a bed while at work in August 2018. He did not, however, provide an
opinion on causal relationship. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition or disability is of no probative value on
the issue of causal relationship.12 As Dr. Papierski did not provide an opinion on causal
relationship, the Board finds that his reports are insufficient to establish appellant’s claim.
Appellant also submitted diagnostic testing results in the form of a September 14, 2018
x-ray and an April 16, 2019 MRI scan. The Board, however, has explained that diagnostic studies,
standing alone, lack probative value on the issue of causal relationship as they do not address
whether the accepted employment incident caused any of the diagnosed conditions.13

8

S.S., Docket No. 18-1488 (issued March 11, 2019).

9

J.L., Docket No. 18-1804 (issued April 12, 2019).

10

J.F., Docket No. 19-0456 (issued July 12, 2019); see also M.O., Docket No. 18-0229 (issued September 23,
2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).
11
D.L., Docket No. 19-0900 (issued October 28, 2019); Y.D., Docket No. 16-1896 (issued February 10, 2017);
C.M., Docket No. 14-0088 (issued April 18, 2014).
12

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

13

D.H., Docket No. 19-1308 (issued January 7, 2020).

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Entitlement to FECA benefits may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of a causal relationship.14 As the record lacks rationalized medical
evidence establishing causal relationship between appellant’s claimed conditions and the accepted
August 25, 2018 employment incident, the Board finds that he has not met his 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 his burden of proof to establish a left hand
condition causally related to the accepted August 25, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 15, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 19, 2020
Washington, DC

Christopher J. Godfrey, 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

14

A.L., Docket No. 18-1016 (issued March 6, 2020).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
South Plainfield, NJ, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 16-1046
Issued: August 8, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On April 22, 2016 appellant filed a timely appeal from a January 28, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the appeal as
No. 16-1046.
The Board has duly considered the matter and concludes that the case is not in posture for
a decision. Appellant filed a traumatic injury claim (Form CA-1) alleging that on March 13,
2013 she injured her right upper chest, right arm, and right hand in the performance of duty. On
May 14, 2013 OWCP denied her claim, assigned file number xxxxxx511, as she had not
submitted medical evidence sufficient to establish causal relationship. An OWCP hearing
representative, in a December 9, 2013 decision, affirmed OWCP’s May 14, 2013 decision. He
reviewed the evidence in the current case record and the case records relevant to appellant’s
other right arm claims, assigned file numbers xxxxxx908 and xxxxxx856. On November 12,
2014 appellant’s representative requested reconsideration. In a January 20, 2015 decision,
OWCP denied modification of the December 9, 2013 decision. It noted that it had previously
denied appellant’s claim as the medical evidence in the current case file and the other case files
failed to establish causal relationship. Appellant, through her representative, again requested
reconsideration on August 31, 2015. By decision dated January 28, 2016, OWCP denied
modification of its January 20, 2015 decision. It noted that appellant had filed an occupational
disease claim, assigned file number xxxxxx810, alleging a similar condition. OWCP found that

appellant’s physician opined that the March 13, 2013 work injury caused her complaints but that
evidence from her other claims indicated that she had preexisting conditions.
OWCP procedures provide that cases should be doubled when a new injury is reported
for an employee who previously filed an injury claim for a similar condition and further indicates
that the cases should be doubled as soon as the need to do so becomes apparent.1 As it
referenced prior claims in denying appellant’s claim for a right upper extremity condition, it
should have combined the case files in accordance with its procedures.2
As the current record does not contain the evidence referenced by OWCP in denying
appellant’s claim, the Board is unable to properly address the relevant issue in this case. The
case is thus not in posture for decision as the record before the Board is incomplete and would
not permit an informed adjudication of the case. On remand, OWCP should combine the present
case record with claim numbers xxxxxx801, xxxxxx908, and xxxxxx856. After combining the
case records, it should consider all the evidence and, following any necessary further
development, issue an appropriate decision on appellant’s claim.
IT IS HEREBY ORDERED THAT the January 28, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: August 8, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(1)
(February 2000).
2

Id.; see also Order Remanding Case, Docket No. 15-0756 (issued September 16, 2015).

2