United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF THE AIR FORCE,
TINKER AIR FORCE BASE, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1312
Issued: October 6, 2015

Case Submitted on the Record

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

JURISDICTION
On May 26, 2015 appellant filed a timely appeal from a March 24, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he has permanent
impairment caused by his accepted employment injuries which would entitle him to a schedule
award.

1
2

5 U.S.C. § 8101 et seq.

Subsequent to his appeal, appellant submitted additional evidence. The Board has no jurisdiction to review this
evidence for the first time on appeal. 20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

FACTUAL HISTORY
On August 20, 2009 appellant, then a 53-year-old sheet metal mechanic, injured his lower
back while lifting, bending, and pulling form blocks and pieces of heavy rubber while operating
a fluid cell machine at work. He stopped work on August 24, 2009 and returned on
August 25, 2009. OWCP accepted the claim for a lumbar sprain and displacement of lumbar
intervertebral disc without myelopathy.
Initial medical reports diagnosed a lumbosacral strain. A January 13, 2012 magnetic
resonance imaging (MRI) scan showed a small bulge at L5-S1, superimposed on a grade one
degenerative anterolisthesis, causing mild central canal stenosis. At L3-4 and L4-5, there were
small bulges with the foramina uncompromised. In a February 28, 2012 report, Dr. Scott
Mitchell, a Board-certified pain management specialist, found leg strength was 5/5 bilaterally.
He related that appellant denied sensation to light touch throughout the lower extremities.
Dr. Mitchell diagnosed lumbar disc displacement.3
On April 11, 2013 appellant filed a Form CA-7 claim for a schedule award. With his
request, he submitted a March 19, 2013 report from Dr. John W. Ellis, Board-certified in family
medicine, who noted appellant’s history and examined him. Dr. Ellis used the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2008)
(A.M.A., Guides) and provided findings which included that he had tenderness and tightness of
the thoracic and lumbar paraspinous muscles and decreased motion of the back. He noted that
appellant had difficulty getting his shoes on and off. Dr. Ellis found that there was decreased
sensation on the dorsal and lateral aspects of both feet and weakness on dorsiflexion of the big
toes, plantar flexion of the feet, and toe and heel walking, with straight leg raising positive
bilaterally. He indicated that reflexes were 2+ and equal in the biceps, 1+ and equal in the
wrists, 1+ and diminished in the right ankle and 0 to 1+ and diminished in the left ankle.
Dr. Ellis advised that appellant was alert, oriented and cooperative with no evidence of symptom
magnification or malingering. He referred to Table 16-12, page 533 and the July/August 2009
The Guides Newsletter, rating spinal nerves to the extremity. Dr. Ellis allotted 11 percent for L5
spinal nerve root impairment and 7 percent for S1 spinal nerve root impairment. He opined that
appellant had 17 percent impairment to both the right and the left legs. Dr. Ellis indicated that
appellant retired on July 1, 2012.
On May 2, 2013 an OWCP medical adviser reviewed the medical records and determined
that there was a significant variance of information with respect to the neurological impairment
of the lower extremities that could not be resolved on the basis of a medical records review. He
explained that Dr. Ellis found moderate sensory loss and mild motor loss involving the L5 and
S1 spinal nerves bilaterally, while other medical examinations did not. The medical adviser
referred to the report of Dr. Mitchell, who on December 11, 2012 found leg strength was 5/5
bilaterally and appellant denied loss of sensation to light touch throughout the legs.

3

In a May 1, 2012 second opinion examination report, Dr. Dennis E. Foster, a Board-certified orthopedic
surgeon, opined that the work injury also caused moderate to severe spondylosis. Examination showed normal
strength in all muscle groups of both legs and negative straight leg raising.

2

On February 5, 2015 OWCP referred appellant for a second opinion, along with a
statement of accepted facts, a set of questions, and the medical record to Dr. Michael Shawn
Smith, Board-certified in physical medicine and rehabilitation.
In a February 25, 2015 report, Dr. Smith noted appellant’s history of injury and examined
him. His findings included that appellant had good forward flexion and could come within
touching his toes by six inches to about 80 degrees. Extension was limited to 5 to 10 degrees and
lateral bending was limited to 10 to 15 degrees. Dr. Smith determined that appellant had more
limitation on the right compared to the left and that extension and rotation did not result in lower
back discomfort. Appellant had some paraspinal spasms and mild kyphosis in the thoracic
segments. He had good upper body strength and lower body strength of 5/5 throughout with hip
flexion and extension, knee flexion and extension and hip abduction and adduction. Extensor
hallucis longus strength was also 5/5. Sensation was intact to light touch and painful stimuli
with pulling on hairs of the lower extremities. There was no atrophy. Appellant ambulated
without an assisted device and his straight leg raising was negative bilaterally.
Dr. Smith diagnosed multilevel lumbar disc disease with biomechanical pain and spinal
stenosis without radiculopathy and cervical lumbar degenerative disc disease. He utilized the
A.M.A., Guides (6th ed. 2008) and determined that there were no sensory or motor deficits noted
in the bilateral lower extremities, and the lower extremity rating was therefore zero percent
pursuant to the A.M.A., Guides. Dr. Smith explained that regarding spinal stenosis, the A.M.A.,
Guides did not recognize the impairment rating for extremities but noted that the
July/August 2009 The Guides Newsletter provided an alternative rating system for spinal and
nerve extremity impairment. He advised that impairment was based on nerve impairment in the
extremities. Dr. Smith explained that appellant had no peripheral spinal nerve dermatomal
weakness or numbness although he clearly had symptoms of spinal stenosis. He concluded that
he could find no impairment for spinal nerve impairment with motor or sensory loss based on his
current examination. Dr. Smith explained that despite having classic spinal stenosis symptoms it
was not a basis for an impairment rating.
On March 17, 2015 an OWCP medical adviser reviewed the medical record and
determined that appellant’s accepted conditions included lumbar sprain and displacement of
lumbar IV disc. He noted that appellant reached maximum medical improvement on
February 24, 2015, the date of Dr. Smith’s evaluation. The medical adviser noted that Dr. Smith
determined that appellant had no peripheral spinal nerve dermatomal weakness or numbness
although he clearly had symptoms of spinal stenosis. He related that Dr. Smith found no
impairment for spinal nerve impairment with motor or sensory loss based upon his examination.
The medical adviser agreed that appellant had zero percent impairment of the right and left lower
extremities.
By decision dated March 24, 2015, OWCP denied appellant’s claim for a schedule award.
It found that the medical evidence of record did not support a permanent impairment to a
scheduled member or function of the body.

3

LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.4 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.5 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.7
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.9
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.10 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.11
ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award in accordance with the sixth edition of the A.M.A., Guides and The Guides Newsletter.
4

5 U.S.C. § 8107.

5

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

6

20 C.F.R. § 10.404.

7

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).
8

Pamela J. Darling, 49 ECAB 286 (1998).

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

10

L.J., Docket No. 10-1263 (issued March 3, 2011).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).

4

OWCP accepted appellant’s claim for lumbar strain and displacement of lumbar disc
without myelopathy. Appellant retired on July 1, 2012 and claimed a schedule award on
April 11, 2013. However, he did not submit evidence from a physician finding that he had
permanent impairment of a scheduled member, caused or aggravated by his accepted conditions,
and which followed the A.M.A., Guides in rating permanent impairment. The Board notes that
appellant submitted a March 19, 2013 report from Dr. Ellis, who referred to Table 16-12, page
533 and the July/August 2009 The Guides Newsletter, rating spinal nerves to the extremity.
Dr. Ellis allotted 11 percent for L5 spinal nerve root impairment and 7 percent for S1 spinal
nerve root impairment and opined that appellant had 17 percent impairment to both the right and
the left lower extremity. However, he did not explain how he arrived at these values and his
examination findings of sensory and motor loss are not consistent with findings of other
physicians which found no such deficits. Without further explanation or rationale regarding this
disparity, Dr. Ellis’ report is of limited probative value. Because of this inconsistency, OWCP’s
medical adviser recommended a second opinion examination.
In a February 25, 2015 report, Dr. Smith, the second opinion physician, noted appellant’s
history of injury and treatment and examined him. He utilized the A.M.A., Guides and
determined that there were no sensory or motor deficits noted in the bilateral lower extremities,
and explained that the lower extremity rating was therefore zero percent for the legs pursuant to
the A.M.A., Guides. Dr. Smith indicated that, while appellant clearly had spinal stenosis, there
was no basis under the A.M.A., Guides or The Guides Newsletter for rating impairment of the
legs.
On March 17, 2015 OWCP medical adviser reviewed the medical records and confirmed
that appellant had zero percent impairment of the right and left lower extremities.
Accordingly, the Board finds that appellant has not established 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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has an
impairment caused by his accepted employment injuries that would entitle him to a schedule
award.

5

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 6, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cayey, PR, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Susan M. Cardero-Ladner, Esq., for appellant1
Office of Solicitor, for the Director

Docket No. 17-1860
Issued: January 11, 2018

Case Submitted on the Record

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

JURISDICTION
On August 31, 2017 appellant filed a timely appeal from an August 1, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated July 18, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its August 1, 2017 decision.
However, the Board is precluded from reviewing evidence that was not part of the record at the time OWCP issued
its final decision. 20 CFR § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 30, 2011 appellant, then a 28-year-old transitional employee (TE) carrier,
filed a traumatic injury claim (Form CA-1) alleging that he injured his back on August 25, 2011
when he was attacked by a homeowner’s dog while delivering mail. The dog had jumped over a
wall and that he stumbled while backing up and fell over the homeowner’s car, which caused
injury to his back. Appellant stopped work on August 28, 2011, but returned to work
August 30, 2011. Following development of the claim, OWCP accepted the claim for sprain of
back, lumbar region. Appellant stopped work on September 26, 2011.
On September 24, 2013 OWCP received a notice of recurrence (Form CA-2a) from
appellant claiming a worsening of his condition and wage loss due to a withdrawal of his lightduty assignment. Appellant alleged that he was laid off on September 26, 2011 due to the
accident. He indicated that his condition progressively worsened and that he believed he was
laid off because he was unable to function like before. The employing establishment advised
that appellant last worked on September 26, 2011. It stated that he was removed from
employment for failure to report an accident in a timely manner and failure to be in regular
attendance. A September 24, 2013 statement from a supervisor supported the employing
establishment’s assertion. The supervisor indicated, “The Letter of Removal underwent the
Grievance/Arbitration process and it sustained.”
Appellant filed claims for wage-loss compensation (Form CA-7) from October 3, 2011
through January 6, 2012. He also submitted diagnostic testing, physical therapy reports, and
medical notes from Life Health Solutions dated January 17, 2015 through April 5, 2016, which
certified that he was receiving treatment due to a job-related injury.
An illegible August 26, 2011 note from Dr. Luis A. Rivera Roman, a general practitioner,
appears to diagnose a lumbar sprain. A Form CA-16 medical report, with an illegible signature,
dated August 26, 2011 released appellant to regular work as of August 28, 2011.
In a September 11, 2013 report, Dr. Mildred Diaz, a general practitioner, described the
work-related incident. She provided diagnoses of lumbar radiculopathy and lumbar disc
syndrome.
In a November 5, 2014 report, Dr. Roman described the work-related incident. He
opined that the work incident caused lumbar sprain, lumbar radiculopathy, and lumbar disc
displacement and provided a detailed medical explanation as to how the diagnoses were caused
by the work incident.
In a January 17, 2015 report, Dr. Ivette Ostolaza, a family practitioner, noted appellant’s
work history, described the August 25, 2011 work incident, and reviewed diagnostic testing from
2012 and 2013. She diagnosed disc desiccation at L2-L3 and L4-51, schmori nodes from T12-

2

L1 down to L5-S1, L3-L4 disc bulge, L4-L5 bulge, L5-S1 herniated nucleus pulposus (HNP),
HNP and osteoarthritis at T12, cervical disc disease, lumbar degenerative disc disease, and
lumbar radiculopathy which she opined were permanently aggravated by the August 25, 2011
injury.
Medical reports from Dr. Jesus Ramos, a physiatrist, dated February 28 and April 11,
2015 were received. In his February 28, 2015 report, Dr. Ramos noted the August 25, 2011
work incident, reviewed magnetic resonance imaging (MRI) scan testing of the cervical and
lumbosacral spine from 2012, 2013, and 2015, and presented examination findings. He
diagnosed small protruded disc at L5-S1, discogenic changes and degenerative joint disease in
the lumbar spine, a protruded disc at C3-5, a bulging disc at C5-6, desiccation at L2-L3 and L451, schmori nodes from T12-L1 down to L5-S1, L3-L4 disc bulge, L4-L5 bulge, L5-S1 HNP,
HNP and osteoarthritis at T12, cervical disc disease, lumbar degenerative disc disease, and
lumbar radiculopathy. Dr. Ramos opined that appellant’s traumatic injury permanently
aggravated his conditions of the spine. In his April 11, 2015 report, he reported on appellant’s
progress.
Medical reports dated May 13, July 8, August 12, September 2, and December 9, 2015
and January 20, 2016 were received from Dr. Sol M. Abreu Sosa, a physiatrist. In his May 13,
July 8, and August 12, 2015 and January 20, 2016 reports, Dr. Sosa diagnosed small protruded
disc at L5-S1, discogenic changes and degenerative joint disease in lumbar spine, protruded disc
at C3-5, bulging disc at C5-6, desiccation at L2-L3 and L4-51, schmori nodes from T12-L1
down to L5-S1, L3-L4 disc bulge, L4-L5 bulge, L5-S1 HNP, HNP and osteoarthritis at T12,
cervical disc disease, lumbar degenerative disc disease, and lumbar radiculopathy. Based on
Dr. Roman’s November 5, 2014 narrative as well as appellant’s symptomatology, objective
physical examination, and results of MRI scans of the cervical and lumbar spine, Dr. Sosa opined
that the work injury aggravated appellant’s lumbar spine for which he receives physical therapy,
and that it also caused cervical pain, cervical muscle spasms, and brachial neuritis/radiculitis. He
indicated that the claim should include the conditions of cervical myalgias, displacement of
cervical intervertebral disc, brachial neuritis and radiculitis, lumbar neuritis and radiculitis as
well as lumbar myalgias, lumbago, and lumbar disc displacement.
In a February 26, 2016 report, Dr. Amogh Sahal, a physiatrist, noted the history of the
August 25, 2011 work injury, reviewed objective testing, and noted examination findings. He
diagnosed neck pain/cervical disc bulges in multiple levels, low back pain/lumbar disc bulges in
multiple levels, lumbar radiculopathy, possible cervical radiculopathy, and anxiety. Dr. Sahal
opined that appellant was disabled due to these above medical conditions and noted that the past
injury was associated with appellant’s current complaints as described in previous
documentation.
In a May 5, 2016 letter, OWCP advised appellant of the definition of a recurrence of
disability and indicated that additional evidence was needed to support his recurrence claim. It
requested medical evidence from appellant’s physician which explained how appellant’s current
conditions were due to the original injury of August 25, 2011. OWCP also requested that
appellant respond to questions on its claim development questionnaire and comment on the
employing establishment’s September 24, 2013 statement regarding the Letter of Removal.
Appellant was afforded 30 days to submit the requested information.

3

On June 2, 2016 OWCP received a May 28, 2016 note from appellant with the first page
of its May 5, 2016 letter attached. Appellant stated, “This is respond to letter (OWCP) of date
May 5, 2016. If you have any question please contact me.”
Appellant submitted medical notes from Life Health Solutions dated April 26 through
June 24, 2016.
In a May 20, 2016 medical report, Dr. Ostolaza diagnosed lumbosacral intervertebral disc
disorder/disc herniation, cervical disc disorder/disc herniation, and radiculopathy in lumbar and
cervical region. She opined that appellant suffered a traumatic injury while performing his letter
carrier job and that the injuries he sustained resulted in a lower back and cervical conditions.
Dr. Ostolaza indicated that appellant’s lower back condition had gradually worsened and
precipitated into bulging discs at L3-L4 and L4-L5 and a disc herniation at L5-S1. She noted
that the herniations caused appellant to develop radiculopathy which affected his lower
extremities. Dr. Ostolaza also opined that appellant’s cervical condition was causally related to
the August 25, 2011 work injury and provided a medical explanation for the cause of appellant’s
cervical disc conditions. She indicated that, since the accident, appellant’s cervical condition had
also declined.
Statements from the employing establishment were received on June 29 and July 6, 2016.
The employing establishment indicated, with supporting evidence, that appellant had failed to
report the accident in a timely manner and had failed to be regular in attendance in July, August,
and September 2011. Had appellant been regular in attendance and complied with the
established agency procedures, the employing establishment noted that he would not have been
removed.
The record reflects appellant’s last day in pay status was November 23, 2011. The reason
provided on the PS Form 50 was “termination-expiration of appointment.”
By decision dated July 18, 2016, OWCP denied appellant’s claim for recurrence. It
found that appellant had not established that he had a return or increase in disability due to a
change/withdrawal of the assignment, but rather was removed from employment for misconduct
and that appellant had not provided any comments to refute that was the basis for his removal.
OWCP further found that the medical evidence of record around the time of the alleged
September 25, 2011 recurrence failed to provide a rationalized explanation as to how his work
stoppage was caused by a spontaneous change or worsening in the accepted lumbar strain
without an intervening injury. It also noted that there was a gap in medical evidence from 2011
through 2013 and that most of the medicals received were from 2015 and 2016.
On June 29, 2017 OWCP received appellant’s request for reconsideration along with a
copy of his counsel’s representation. Evidence received in support of the request included
physical therapy notes, requests for authorization, and prescriptions/referrals.
In an October 7, 2016 attending physician’s report (Form CA-20), Dr. Ostolaza
diagnosed lumbar radiculopathy, lumbar degenerative disc disease, discs bulge at L3-L4, L4-L5,
and L5-S1 due to the August 25, 2011 work injury. She opined that appellant was permanently
totally disabled.

4

In a December 2, 2016 report, Dr. Ostolaza noted examination findings and diagnosed
lumbosacral intervertebral disc disorder/disc herniation and radiculopathy lumbar region. She
advised the recent electromyography/nerve conduction velocity (EMG/NCV) study indicated
that appellant suffered from radiculopathy as a result of his lumbar condition. Dr. Ostolaza
opined that appellant was totally disabled.
Medical reports from Dr. Sahal dated July 22, 2016, February 17 and May 12, 2017 were
received. Dr. Sahal reported on appellant’s conditions. She diagnosed cervical disc bulges in
multiple levels, lumbar disc bulges in multiple levels, lumbar radiculopathy, cervical
radiculopathy, and anxiety. In her February 17 and May 12, 2017 reports, Dr. Sahal indicated
that appellant was disabled due to the lumbar disc bulges, lumbar disc herniations, and lumbar
radiculopathy. She indicated that appellant’s current diagnoses and complaints have already
been determined to be related to appellant’s work injury.
In a January 20, 2016 injury diagnosis update, Dr. Sosa indicated that the diagnoses of
other intervertebral displacement lumbar region, other intervertebral disc displacement
lumbosacral region, other cervical disc displacement mid cervical region, and lumbar
radiculopathy were injury related.
By decision dated August 1, 2017, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.6 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.8
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
4

5

20 C.F.R. § 10.607.

6

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

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

5

ANALYSIS
In the last merit decision dated July 18, 2016, OWCP denied appellant’s claim for a
recurrence of disability due to a change in the nature and extent of his light-duty job
requirements or withdrawal of a light-duty assignment made specifically to accommodate
appellant’s work-related injury without misconduct. It denied his request for reconsideration in
nonmerit decision dated August 1, 2017.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3) requiring OWCP to reopen the case for review of the merits of his claim.
In his August 8, 2016 request for reconsideration, appellant did not identify or show that OWCP
erroneously applied or interpreted a specific point of law.
While appellant submitted additional medical evidence which documented his medical
conditions, none of the medical evidence submitted addressed whether appellant’s disability
occurred or increased due to a change in the nature and extent of his light-duty job requirements
or a withdrawal of a light-duty assignment made specifically to accommodate the accepted
lumbar strain. As the new medical evidence did not discuss the critical question of whether
appellant’s disability occurred or increased due to a change in the nature and extent of his lightduty job requirements or a withdrawal of a light-duty assignment made specifically to
accommodate the accepted lumbar strain, they do not comprise a basis for reopening the case.9
As such, the medical evidence is not relevant to the issue of recurrence of disability.
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence or argument. Appellant did not provide arguments or evidence that shows OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal
argument not previously considered by OWCP. Therefore, pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
On appeal appellant contends that the employing establishment did not make any
arrangements to accommodate his work-related conditions after his injury. Rather, he performed
the same work duties and work assignments. Appellant also alleged that he never had any
misconduct. He stated that the case of misconduct was appealed and it was concluded that he
had no misconduct. These arguments pertain to the merits of the claim, which are not before the
Board on the present appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

9

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carmel, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Joseph E. Allman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1392
Issued: November 15, 2007

Case Submitted on the Record

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

JURISDICTION
On April 26, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decisions dated January 23 and April 5, 2007 which denied
his requests for reconsideration. Because more than one year has elapsed from the most recent
merit decision dated March 16, 2006 to the filing of this appeal on April 26, 2007, the Board
lacks jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and
501.3.
ISSUE
The issue is whether the Office properly denied appellant’s requests for reconsideration
without conducting a merit review.
FACTUAL HISTORY
On October 31, 1991 appellant, then a 41-year-old maintenance worker, filed an
occupational disease claim stating that he developed bilateral heel spurs in the performance of
duty. He did not initially stop work. Appellant submitted an undated report from

Dr. Jordan Ross, a podiatrist, diagnosing bilateral heel spurs. The Office accepted appellant’s
claim for bilateral aggravation of heel spurs and paid appropriate compensation. On May 4,
1992 the Office authorized surgery for appellant’s accepted bilateral heel spurs.
In a June 8, 1992 report, Dr. Ross performed a bilateral resection of heel spurs and
bilateral plantar fasciotomy. On August 14, 1992 he advised that appellant had postsurgery
complications. Appellant began a light-duty job on November 9, 1992. In an April 4, 1995
report, Dr. Frank Throop, an orthopedic surgeon and second opinion physician, concluded that
appellant had permanent work restrictions and could stand for two hours per day
nonconsecutively due to his accepted condition.
On January 26, 2005 appellant requested a schedule award.
In an August 2, 2005 report, Dr. Ross noted appellant’s persistent complaints of bilateral
arch and heel pain. He advised that appellant had not experienced lasting relief from his
treatment but had reached maximum medical improvement. Dr. Ross concluded that appellant
had 10 percent lower extremity impairment for rocker bottom foot, based on the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)
(5th ed. 2001), Table 17-33,1 10 percent lower extremity impairment for roentgenographically
determined cartilage interval, based on Table 17-312 two percent lower extremity impairment for
sural nerve sensory damage, based on Table 17-373 and five percent lower extremity impairment
for posterior tibial motor neuropathy, based on Table 17-37.4 He found that appellant had a total
27 percent lower extremity impairment.
In a November 2, 2005 report, Dr. Richard A. Hutson, a Board-certified orthopedic
surgeon and an Office referral physician, determined that appellant had no impairment or
residuals from his work-related condition. He explained that appellant’s surgical scars were well
healed and that appellant was not tender to palpation on the plantar surface of either heel where
the surgery was performed. Dr. Hutson noted that appellant had congenital flat feet and
nonwork-related degenerative changes and was morbidly obese, all of which contributed to his
current symptoms. However, he determined, appellant’s impairment, if any, was not related to
his accepted heel spur or plantar fasciitis surgery, as examination suggested those conditions had
resolved.
In a December 15, 2005 addendum to the statement of accepted facts, the Office noted
that appellant’s medical history was significant for “rocker bottom” flat feet, obesity and diabetic
neuropathy.
In a December 28, 2005 report, an Office medical adviser noted that Dr. Hutson’s
physical examination revealed that appellant had zero percent impairment of his lower
1

A.M.A., Guides 546-547, Table 17-33 (5th ed. 2001).

2

Id. at 544, Table 17-31.

3

Id. at 552, Table 17-37.

4

Id.

2

extremities, as related to his accepted conditions. He indicated that Dr. Hutson had diagnosed
rocker bottom flat foot deformity, which was a congenital condition and not caused by his
federal employment. Therefore, the Office medical adviser concluded that appellant had no
ratable impairment.
On February 3, 2006 the Office proposed termination of appellant’s compensation on the
grounds that his work-related condition had resolved. By decision dated March 8, 2006, the
Office denied appellant’s schedule award claim. On March 16, 2006 the Office finalized
termination of appellant’s compensation, effective that day.5
In a June 5, 2006 report, Dr. Ross explained that appellant’s June 8, 1992 surgery had
failed to relieve his symptoms and that he continued to experience chronic pain. He indicated
that appellant had continuing chronic plantar fasciitis and neuritis of the left heel, which was
related to his original injury. Dr. Ross also advised that appellant’s work restrictions had not
changed. In a January 21, 2005 form report, he stated that he had reached maximum medical
improvement as of April 5, 1995 and that all residuals of the original work injury had not
resolved.
By request postmarked December 7, 2006, appellant requested reconsideration of the
Office’s March 8, 2006 decision denying his schedule award. He asserted that the Office erred
in finding that he did not have permanent partial impairment, that Dr. Ross’ opinion represented
the weight of the medical evidence. Appellant contended that the Office should recognize his
plantar fasciitis as chronic, that he was entitled to a schedule award for permanent partial
impairment to both lower extremities. On December 7, 2006 he also requested reconsideration
of the Office’s March 16, 2006 decision terminating his entitlement to compensation benefits.
Appellant asserted that his permanent restrictions were caused by his employment and the fact
that he had congenital flat feet did not imply that his work-related condition had resolved. He
stated that he submitted a sworn statement from Dr. Ross.6 In a July 26, 1994 report, Dr. Ross,
noted that his surgery had failed and that his symptoms continued to persist due to “periods of
excessive standing or walking required by his job.” Appellant also provided Dr. Ross’
January 21, 2005 form report and August 2, 2005 impairment rating, which were previously
received of record.
By decision dated January 23, 2007, the Office denied appellant’s request for
reconsideration of the March 8, 2006 decision denying a schedule award, without conducting a
merit review.
On March 6, 2007 appellant again requested reconsideration of the Office’s March 8 and
16, 2006 decisions. He provided a March 5, 2007 report from Dr. Travis Montgomery, a
podiatrist, who diagnosed diabetes mellitus and peripheral neuropathy, standing calcaneal
valgus, posterior tibialis neuritis, Baxter’s neuritis and plantar fasciitis. Dr. Montgomery
5

The record reflects that the Office initially finalized its termination of appellant’s compensation on
March 6, 2006. However, the decision was mailed to appellant without appeal rights. Consequently, the Office
reissued its decision terminating appellant’s compensation on March 16, 2006.
6

The record reflects that the Office did not receive the statement.

3

concluded that appellant was “significantly immobilize[ed]” by a combination of his plantar
fasciitis and a “nerve component … secondary to diabetes.” He explained that appellant’s
“combination of pathologies” caused his impairment but that “this could be a contributing cause
for work in regards to his chronic pain on both of his extremities. To reinforce, I do feel that his
work related pain is more consistent with his plantar fasciitis … rather than his diabetes.”
By decision dated April 5, 2007, the Office denied appellant’s request for reconsideration
of the March 16, 2006 decision terminating his compensation benefits without conducting a
merit review. On the same day, the Office also denied appellant’s request for reconsideration of
the March 8, 2006 decision denying his schedule award claim, without conducting a merit
review.
LEGAL PRECEDENT
Under section 8128 of the Federal Employees’ Compensation Act, the Office has
discretion to grant a claimant’s request for reconsideration and reopen a case for merit review.
Section 10.606(b)(2) of the implementing federal regulations provides guidance for the Office in
using this discretion.7 The regulations provide that the Office should grant a claimant merit
review when the claimant’s request for reconsideration and all documents in support thereof:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”8
Section 10.608(b) provides that, when an application for review of the merits of a claim
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.9 When reviewing an Office decision denying a merit review, the function of the
Board is to determine whether the Office properly applied the standards set forth at section
10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.10

7

20 C.F.R. § 10.606(b)(2) (1999).

8

Id.

9

20 C.F.R. § 10.608(b) (1999).

10

Annette Louise, 54 ECAB 783 (2003).

4

ANALYSIS
The Board finds that the Office properly denied appellant’s December 7, 2006 and
March 6, 2007 requests for reconsideration of its March 8, 2006 decision denying his schedule
award claim. In support of his December 7, 2006 request for reconsideration, appellant
submitted numerous arguments concerning both the termination decision and the denial of his
schedule award claim. However, his arguments were essentially repetitious and cumulative.11
Specifically, appellant asserted that his condition was chronic, that his residuals had not resolved
and that Dr. Ross’ opinion should represent the weight of the medical evidence. The Office had
considered appellant’s evidentiary submissions on the nature of his condition and had already
weighed the evidence. Accordingly, his submissions neither established that the Office
misapplied or misinterpreted a specific point of law nor advanced a new and relevant legal
argument. The Board also finds that appellant’s new evidentiary submission, Dr. Ross’ July 26,
1994 report, was not relevant as it did not address the issue of appellant’s permanent impairment
due to the employment conditions. Therefore, the Board finds that appellant did not submit new
and relevant medical evidence. Accordingly, he did not meet any of the above-listed three
criteria warranting a merit review.
Appellant submitted a second request for reconsideration on March 6, 2007. He based
his reconsideration request on Dr. Montgomery’s March 5, 2007 report. The Board notes that
appellant had not previously submitted any reports from Dr. Montgomery, who supported that
appellant’s condition was continuing and that his work was a contributing cause. However,
Dr. Montgomery did not address the schedule award issue. The Board has held that evidence
which does not address the particular issue involved does not constitute a basis for reopening a
claim for a merit review.12 Accordingly, the Board finds that Dr. Montgomery’s March 5, 2007
report is insufficient to require the Office to reopen appellant’s schedule award claim.13
However, with regard to appellant’s December 7, 2006 request for reconsideration of the
Office’s March 16, 2006 decision terminating his entitlement to benefits, the Board finds that the
Office improperly denied the request without conducting further merit review. The Office’s
procedure manual states that, if a decision on a request for reconsideration is delayed more than
90 days and the delay jeopardizes the claimant’s right to review of the merits of the case by the
Board, the Office should grant a merit review to preserve appellant’s appeal rights.14 The record
reflects that appellant requested reconsideration of the Office’s March 16, 2006 decision on
11

See Richard Yadron, 57 ECAB ___ (Docket No. 05-1738, issued November 8, 2005) (evidence that repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a basis for reopening
a case).
12

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

13

To the extent that the Office’s April 5, 2007 decision may have declined to conduct a merit review of the
termination issue, it is not necessary for the Board to address whether Dr. Montgomery’s report would be sufficient
to warrant a merit review of this issue in view of the Board’s findings with regard to the April 5, 2007 Office
decision that denied merit review of the Office’s March 16, 2006 termination decision.
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.9 (October 1992). See
Geoma R. Munn, 50 ECAB 242 (1999).

5

December 7, 2006. However, the Office delayed adjudication of the reconsideration request
until April 5, 2007, well beyond the 90-day period allotted by the Office’s procedures. This
delay compromised appellant’s ability to seek a merit review before the Board. Therefore, the
Office should have issued a decision on the merits of appellant’s claim with regard to the
termination issue. Accordingly, the Board finds that the Office erred in refusing to reopen
appellant’s case for further review of the merits of his claim and the case should be remanded to
the Office for merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s December 7, 2006 and
March 6, 2007 requests for reconsideration of the March 8, 2006 schedule award decision.
However, the Board finds that the Office acted improperly in denying appellant’s December 7,
2006 request for reconsideration of the March 16, 2006 termination decision without conducting
a merit review.
ORDER
IT IS HEREBY ORDERED THAT the April 5 and January 23 2007 decisions of the
Office of Workers’ Compensation Programs denying appellant’s request for reconsideration of
the Office’s March 8, 2006 decision are affirmed. The April 5, 2007 decision denying
appellant’s request for reconsideration of the Office’s March 16, 2006 decision is set aside and
the case remanded for further action consistent with this decision.
Issued: November 15, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________
J.H., Appellant
and
DEPARTMENT OF THE NAVY,
San Diego, CA, Employer
____________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-366
Issued: July 19, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 13, 2011 appellant filed a timely appeal from a September 19, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained right ear hearing loss causally related to factors of his federal employment; and
(2) whether appellant established that his left ear hearing loss is ratable.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 10, 2011 appellant, then a 67-year-old sheet metal mechanic, filed an
occupational disease claim alleging that he sustained hearing loss as a result of exposure to loud
noise in his federal employment. He first related his condition to his work on July 8, 2010.
Appellant submitted employing establishment health unit reports dated August 31, 1988
to February 17, 2011 and as a position description.
In a July 8, 2010 audiology evaluation report, Chris Duhon, an audiologist, noted that
appellant had asymmetrical hearing loss in the right ear. He stated that appellant was no longer
fit to work in hazardous noise.
OWCP advised appellant on March 9, 2011 of the deficiencies in his claim and requested
additional information regarding his employment history, exposure to hazardous noise at work,
development of his hearing loss, as well as medical documents concerning his hearing loss.
Appellant submitted a March 30, 2011 statement, in which he reviewed his employment
history. Regarding his current employment, he noted that from August 1988 until February 28,
2011 his duties as a sheet metal worker exposed him to noise from sanding, band saws, drill
motors and riveting guns.
In reports dated July 22 and September 21, 2010, Dr. Douglas F. Brewster, a Boardcertified physician in otolaryngology, advised that appellant’s audiogram showed a 40-decibel
sensorineural hearing loss in his right ear and that his left ear was normal. He diagnosed
appellant with Ménière’s disease.
On May 19, 2011 OWCP referred appellant to a second opinion physician, Dr. Theodore
Mazer, Board-certified in otolaryngology, for evaluation.
In a July 5, 2011 report, Dr. Mazer stated that appellant had unilateral tinnitus in his right
ear only, with no history of any unilateral exposures to noise or greater exposures to noise on the
right ear than the left over his years of federal employment. He concluded that appellant’s loss
of hearing was “highly unlikely” to be in any way related to his exposure to noise. Appellant
had a history of no progressive hearing loss for the first 16 years of exposure, followed by a
dramatic unilateral loss on the right in 2003 and again a couple of years later, despite no
unilateral or increased noise exposure. He experienced two episodes of vertigo beginning around
the same time as the hearing losses began, in addition to the extreme impairment and speech
discrimination. Dr. Mazer found that appellant had retrocochlear disease and Ménière’s disease.
He concluded that nothing in the evaluation supported the claim of occupational injury.
Dr. Mazer noted that appellant’s left ear’s hearing loss was consistent with his age, although “a
nominal noise-induced hearing loss of 3,000 Hertz is not excluded,” but there was no ratable
hearing impairment. The audiogram dated July 5, 2011 showed for the left ear, hearing levels of
15, 15, 15 and 25 decibels at the respective frequencies of 500, 1,000, 2,000 and 3,000 Hertz.
The equipment was calibrated on March 5, 2011.
On August 28, 2011 the district medical adviser reviewed Dr. Mazer’s report and the
July 5, 2011 audiometric test. He determined that appellant’s loss of hearing in the right ear was
2

not employment related, while the loss of hearing in his left ear was causally related to his
employment, but was not ratable. In accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides), appellant
had a zero percent sensorineural hearing loss in the left ear.
In a September 19, 2011 decision, OWCP denied appellant’s claim on the grounds that he
had failed to establish that he had sustained any hearing loss caused by his federal employment.
It noted the right ear loss was unilateral while the left ear loss was typical of an individual of
appellant’s age.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;5 a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition;6 and (3) medical evidence establishing the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed, or stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.7
Appellant has the burden of establishing by weight of the reliable, probative and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.8 Neither the condition becoming apparent during a period of employment,

2

Id.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Beverly A. Spencer, 55 ECAB 501 (2004).

8

Stanley K. Takahaski, 35 ECAB 1065 (1984).

3

nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.9
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.10 The
opinion of the physician must be based on a complete factual and medical background of the
claimant11 and must be one of reasonable certainty12 explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.13
Section 8101(2) of FECA provides that the term “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law. As nurses, physician’s
assistants, physical and occupational therapists are not “physicians” as defined by FECA, their
opinions regarding diagnosis and causal relationship are of no probative medical value.14
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 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.15
Further, the requirements of the evidence to be used in evaluating occupational hearingloss claims are defined by the Federal (FECA) Procedure Manual, which provides that the
employee should undergo audiological evaluation and otological examination; that the
audiological testing precede the otologic examination; that the audiological evaluation and
otologic examination be performed by different individuals as a method of evaluating the
reliability of the findings; that the clinical audiologist and otolaryngologist be certified; that all
9

See John W. Butler, 39 ECAB 852, 858 (1988).

10

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

11

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

12

John W. Montoya, 54 ECAB 306 (2003).

13

Judy C. Rogers, 54 ECAB 693 (2003).

14

See Roy L. Humphrey, 57 ECAB 238 (2005).

15

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

4

audiological equipment authorized for testing meet the calibration protocol contained in the
accreditation manual of the American Speech and Hearing Association that the audiometric test
results include both bone conduction and pure-tone air conduction thresholds; speech reception
thresholds and monaural discrimination scores; and that the otolaryngologist’s report include the
date and hour of examination; date and hour of the employee’s last exposure to loud noise; a
rationalized medical opinion regarding the relationship.16
ANALYSIS
Appellant alleged that he sustained hearing loss due to exposure to hazardous noise at his
federal employment. The Board finds that his hearing loss in the right ear is not employment
related and that he sustained no ratable hearing loss in his left ear.
Dr. Mazer, a second opinion Board-certified otolaryngologist, reviewed the factual
background of appellant’s employment provided in the statement of accepted facts, examined
him and obtained audiometric testing on otologic examination. He found that appellant’s hearing
loss in his right ear was not due to his employment-related noise exposure. Dr. Mazer explained
that appellant was not subject to unilateral noise exposure or greater exposures to noise on the
right ear than the left over his years of federal employment. The hearing loss in appellant’s right
ear was much more severe. Dr. Mazer determined that the loss of hearing in the right ear,
coupled with the vertigo episodes that appellant sustained were due to retrocochlear disease and
Ménière’s disease. As such, his hearing loss in the right ear was not employment related.17
The Board finds that the well-reasoned opinion of Dr. Mazer establishes that appellant’s
right ear hearing loss was not caused by his federal employment. Dr. Mazer fully explained the
reasons why appellant’s hearing loss in the right ear was not caused by work-related noise
exposure. The medical adviser reviewed Dr. Mazer’s findings on August 28, 2011 and
concurred that appellant’s right side hearing loss was not employment related. Appellant did not
submit medical opinion evidence to support that his hearing loss in the right ear was caused by
workplace noise exposure.18
With regard to appellant’s left ear, the Board finds that appellant’s hearing loss is
employment related but not ratable. Both Dr. Mazer and the medical adviser reported that
appellant’s left side hearing loss was aggravated by noise exposure in his federal employment.
The physicians found, however, that appellant’s left ear hearing loss was not ratable. OWCP
denied appellant’s left ear hearing loss as not causally related to his employment; but this finding
is not supported by the medical evidence of record. The Board finds that appellant’s left ear
hearing loss is causally related to his federal employment, but is not ratable.

16

Joshua Holmes., 42 ECAB 231 (1990).

17

The Board also notes that this diagnosis is consistent with Dr. Brewster’s findings.

18

Dr. Brewster’s July 22 and September 21, 2010 medical reports did not address the issue of causation and is
thus of limited probative value. See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports lacking a rationale on
causal relationship have little probative value).

5

OWCP’s medical adviser applied OWCP’s standardized procedures to the September 3,
2010 audiogram performed for Dr. Mazer, testing for the left ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cycles per second revealed decibel losses of ear 15, 15, 15 and 25,
respectively. These decibels were totaled at 70 and were divided by 4 to obtain the average
hearing loss at those cycles of 17.5 decibels. The average of 17.5 decibels was then reduced by
25 decibels (the first 25 decibels were discounted as discussed above) to equal zero which was
multiplied by the established factor of 1.5 to compute a zero percent hearing monaural loss for
the left ear.
An audiologist is not considered to be a physician under FECA.19 As such, the July 8,
2010 audiology evaluation issued by Chris Duhon has no probative value as it was not reviewed
by a physician.
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 failed to establish that his right ear hearing loss was
caused by his federal employment and that he sustained a ratable left ear hearing loss causally
related to his federal employment.

19

See Terry S. Laroque, Docket No. 00-2033 (issued April 26, 2001) (where the claimant supported his request
for reconsideration by submitting audiograms and an audiologist s report, the Board found that the evidence was
irrelevant to the extent of his hearing loss inasmuch as the audiograms were not reviewed by a physician).

6

ORDER
IT IS HEREBY ORDERED THAT the September 19, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: July 19, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
FEDERAL AVIATION ADMINISTRATION,
NATIONAL HEADQUARTERS,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-2462
Issued: May 18, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 15, 2008 appellant filed a timely appeal from a merit decision of the
Office of Workers’ Compensation Programs’ Branch of Hearings and Review dated August 14,
2008 affirming a February 11, 2008 merit decision of the Office denying his claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of appellant’s case.
ISSUE
The issue is whether appellant established that he sustained a lower back injury in the
performance of duty on August 28, 2007.
FACTUAL HISTORY
On September 29, 2007 appellant, a 40-year-old airway system safety specialist, filed a
traumatic injury claim (Form CA-1) for a lower back injury which he alleged occurred on
August 28, 2007. He attributed his injury to an incident when, while moving an air conditioner

transformer with a 2-wheel cart the cart tipped, appellant attempted to catch it, and he felt a
strain in his lower back.
Appellant submitted a collection of medical notes and reports from Dr. Mitchell D.
Pfeiffer, chiropractor, the majority of which were illegible. These reports did not include x-rays
or a diagnosis of subluxation.
By letter dated January 11, 2008, the Office notified appellant that the evidence of record
was insufficient to support that he sustained a diagnosed medical condition as the result of
factors of employment.
Appellant submitted no other evidence in support of his claim, and by decision dated
February 11, 2008 the Office denied his claim because the evidence submitted was insufficient to
establish that he sustained an injury as defined by the Federal Employees’ Compensation Act.
Appellant disagreed and, through counsel, requested an oral hearing. In support of his
request, he submitted a July 21, 2008 report from Dr. Pfeiffer, who reported that x-rays revealed
a subluxation at L5, causing a wedging of the L5 disc space, misalignment of the L5-S1 facet
joints and narrowing of the L5-S1 intervertebral foramen causing nerve impingement of the right
S1 root nerve. She diagnosed appellant with acute lumbar sprain/strain and lumbar disc
displacement. Regarding the cause of the diagnosed subluxation Dr. Pfeiffer stated, “It is the
opinion of this physician with reasonable medical certainty that the accident dated July 28, 2007
was the direct case of the lumbar disc displacement and acute lumbar sprain/strain which was
caused by the L5 vertebral subluxation as demonstrated on x-ray.”
By letter dated May 5, 2008, a telephonic hearing was scheduled for June 10, 2008 at
11:00 a.m. By decision dated August 14, 2008, the Office’s Branch of Hearings and Review
affirmed the Office’s February 11, 2008 decision because appellant failed to establish that he
sustained an injury as defined by the Act. The Branch of Hearings and Review accepted that the
employment incident occurred as alleged.
LEGAL PRECEDENT
An employee seeking benefits under the Act1 has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.2
Section 10.5(ee) of Office regulations defines a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
1

5 U.S.C. §§ 8101-8193.

2

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

2

workday or shift.3 To determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must determine whether fact of injury is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.4
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.5
ANALYSIS
The Office accepted that the employment incident occurred as alleged. It is then
appellant’s burden to submit rationalized medical evidence establishing a diagnosed condition
causally related to the identified employment factors.6 The evidence of record is insufficient to
satisfy appellant’s burden.
The only relevant evidence of record is a collection of notes from Dr. Pfeiffer, the
overwhelming majority of which were illegible. The majority of the legible reports are of no
probative medical value because as a matter of law, under section 8101(2) of the Act,
chiropractors are not considered “physicians” and their reports considered medical evidence, to
the extent that they treat spinal subluxations as demonstrated by x-ray to exist.7 The Office’s
regulations at 20 C.F.R. § 10.5(bb) define subluxation as an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be
demonstrable on any x-ray film to an individual trained in the reading of x-rays.8 The record
reflects that Dr. Pfeiffer did not diagnose or treat subluxation as demonstrated by x-rays to exist
in these reports prior to July 21, 2008. Therefore, she was not considered a physician for
purposes of this analysis, prior to her diagnosis of subluxation based upon x-ray evidence. Thus,
the majority of her reports do not constitute medical evidence.9
3

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

4

Gary J. Watling, supra note 2.

5

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

6

See Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving
declarations do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
7

5 U.S.C. § 8101(2). See Paul Foster, 56 ECAB 208 (2004); Jack B. Wood, 40 ECAB 95, 109 (1988).

8

20 C.F.R. § 10.5(bb); see also Mary A. Ceglia, 55 ECAB 626 (2004); Bruce Chameroy, 42 ECAB 121 (1990).

9

5 U.S.C. § 8101(3), 20 C.F.R. § 10.311(a). See Thomas W. Stevens, 50 ECAB 288 (1999); George E. Williams,
44 ECAB 530 (1993).

3

However, Dr. Pfieffer’s July 21, 2008 report does contain a diagnosis of subluxation as
revealed by x-rays. Therefore, for purposes of this report and this diagnosis, she does constitute
a “physician” for purpose of the Act. But this medical report remains of limited probative value
as Dr. Pfieffer’s report proffered no rationalized opinion on the causal relationship between the
diagnosed subluxation and appellant’s employment.10 She concluded that there was a
relationship between the incident on August 28, 2007 and appellant’s diagnosed subluxation.
However, Dr. Pfieffer offered no medical explanation as to how the incident would have caused
the diagnosed condition. Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical opinion evidence.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on whether there is a causal relationship between the employee’s diagnosed
condition and the compensable employment factors. The opinion of the physician must be based
on a complete factual and medical background of the client, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.11
As there is no other competent probative medical evidence of record establishing causal
relationship, appellant has not met his burden.
Therefore, Board finds that appellant did not establish that an injury occurred as a result
of the August 28, 2007 incident.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty.

10

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).
11

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 14, 2008 is affirmed.
Issued: May 18, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE AIR FORCE,
STRATEGIC AIR COMMAND, CASTLE AIR
FORCE BASE, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Michael D. Culy, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1874
Issued: March 22, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 9, 2006 appellant filed a timely appeal from the May 12, 2006 merit decision
of the Office of Workers’ Compensation Programs, which found that he failed, without good
cause, to undergo vocational rehabilitation as directed. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of the appeal.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation for failing,
without good cause, to undergo vocational rehabilitation as directed.
FACTUAL HISTORY
On June 1, 1973 appellant filed claims for injuries which occurred on November 17, 1972
and January 12, 1973 in the performance of his federal duties as a meat cutter. The Office
accepted his claims for low back strain. Appellant received compensation benefits from June 30,
1973 through July 19, 1978. In July 1978, he accepted a position as a sales person for United

Bedrooms and Water Works, where he worked through 1988. Appellant has not worked since
that time.
This is the second time this case has been before the Board. By decision dated
February 2, 1999, the Board reversed the Office’s November 4, 1996 decision terminating
appellant’s compensation benefits.1 The Board found that the Office had failed to meet its
burden to establish that appellant’s accepted employment injuries had resolved. The findings of
facts and conclusions of law are hereby incorporated by reference.
On February 4, 2004 the Office referred appellant, together with the medical record and
statement of accepted facts, to Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, for
examination and an opinion as to work tolerance restrictions related to appellant’s accepted
condition. In a February 25, 2004 report, Dr. Swartz concluded that appellant was capable of
vocational rehabilitation. His examination revealed a normal range of motion of the lumbar
spine, no relevant neurological findings and no atrophy in his lower extremities. Imaging studies
revealed degenerative changes from L4-S1. Dr. Swartz found no evidence of low back strain.
Stating that there were no objective clinical findings in his examination of the low back,
Dr. Swartz opined that appellant had no residual injury factors of disability. He indicated that
appellant had chronic degenerative disc disease at L4-5 and L5-S1, which would not be
disabling, but could result in some reasonable restrictions. In an accompanying work capacity
evaluation, Dr. Swartz indicated that appellant could work full time, provided that he was not
required to push, pull or lift more than 50 pounds, squat or climb for more than two hours or
kneel for more than three hours.
On May 12, 2004 the Office referred appellant to vocational rehabilitation services. In a
July 2, 2004 report, the vocational rehabilitation counselor, George Meyers, indicated that
appellant wanted to explore employment opportunities available to him in a position where he
would be using his hands, such as a cook or a janitor. An October 6, 2004 report reflected that
appellant disagreed with the medical restrictions provided by Dr. Swartz. In a letter dated
October 7, 2004, the vocational consultant informed appellant that, pursuant to a labor market
survey, the position of cook was the best option for him. An appointment was made for him with
the director of admissions of the cooking program at Central Valley Occupational Center
(CVOC). In a November 17, 2004 report, Mr. Meyers stated that appellant failed to attend the
scheduled meeting at CVOC. He stated that he was developing a plan to prepare appellant for
the position of cook, but experienced difficulty reaching appellant, due to the fact that he did not
own a telephone. By letter dated December 10, 2004, Mr. Meyers informed appellant that he
was proceeding with plan development, using the goal objective of cook. Noting that appellant
had failed to attend the previously-scheduled appointment with CVOC, Mr. Meyers indicated
that the proposed 12 weeks of training would begin January 24, 2004. On December 27, 2004
appellant signed the proposed plan. Pursuant to the plan, he agreed to participate full time in job
search activities, with the goal of obtaining the position of cook or cook helper, at the rate of
$14,040.00 per year. In a report dated January 24, 2005, Mr. Meyers stated that he had contacted
22 employers in furtherance of documenting reasonable availability of the positions of cook and
cook helper in appellant’s geographical area. He noted that the Merced Employment
1

Docket No. 97-1131 (issued February 2, 1999).

2

Development Department indicated that those positions were among the occupations with the
fastest job growth, and would likely increase by 15.8 percent and 20 percent respectively by the
year 2008.
In a memorandum to the file, Mike Hooker, rehabilitation specialist, recommended
approval of the rehabilitation plan. He noted that the positions of cook and cook helper were in
the “medium” strength category, as defined by the Department of Labor, Dictionary of
Occupational Titles, and therefore accommodated appellant’s medical restrictions.2 These
positions were also felt to be appropriate, given appellant’s limited literacy and educational
background. The proposed plan documented that a viable labor market existed in appellant’s
geographical area for these positions. The proposed training would enable appellant to
successfully compete in his local labor market.
On February 7, 2005 Mr. Meyers, the vocational consultant, informed appellant that the
vocational rehabilitation plan to attend the cooking program at CVOC had been approved. He
advised appellant that training would begin on February 14, 2005, and would continue, from
8:00 a.m. to 3:30 p.m., every Monday through Friday for 12 weeks. A February 8, 2005
vocational rehabilitation report reflected that appellant had decided that he would rather build
cabinets or furniture, than attend cooking classes. Appellant expressed concern that a cooking
position would be detrimental to his health. On March 14, 2005 Mr. Meyers reported that
appellant had left class early on February 23, 2005, having “taken too much medicine” and did
not attend school on February 25, 2005, “due to pain.” On February 28, 2005 appellant informed
his instructor that he would only be able to attend class for three to four hours per day, due to
“anxiety/pain/medication.” On that date, appellant informed Mr. Meyers’ assistant that he was
experiencing pain in his back, numbness in his right leg and shooting pain in his left leg. On
March 1, 2005 appellant informed Mr. Meyers that he was unable to perform the duties of a
cook. He indicated that he had not seen a doctor for his pain and was obtaining his pain
medication from Mexico. Appellant did not attend class on March 1, 2005. He attended class on
March 2, 2005 from 8:00 a.m. until 11:00 a.m. On March 4, 2005 appellant informed
Mr. Meyers that, although the work involved in the cooking class is “light,” he was unable to
function at the level suggested by Dr. Swartz. On March 7, 2005 appellant informed Mr. Meyers
that he would not be returning to school, as he was unable to function for more than two to four
hours at a time. Mr. Meyers counseled appellant that it was his responsibility to provide medical
documentation substantiating that he was unable to participate in training. On April 27, June 22,
and July 26, 2005 Mr. Meyers stated that appellant discontinued the training due to self-reported
pain.
Appellant submitted a July 20, 2005 report from Dr. Don Williams, a treating physician,3
who provided diagnoses of lumbar disc protrusion, L5-S1, history of dyslexia and attention
deficit disorder, high blood pressure and borderline diabetes. Physical examination of the
lumbar spine showed that appellant was able to walk on his heels and tiptoes, but had slight
2

Pursuant to the Dictionary of Occupational Titles, the physical demands of the “medium” strength category
include strength levels of less than 50 pounds, and no squatting, climbing or kneeling.
3

Dr. Williams’ stationary indicates that he is a Board-certified orthopedic surgeon. However, his credentials
cannot be verified.

3

weakness in dorsiflexion. Dr. Williams had decreased flexion to 45 degrees at the waist.
Patellar reflexes were a little brisk at 3+ bilaterally. Achilles reflex was diminished at 1+. The
right extensor halluces was 5/5 on the left, and was a little weaker [on the left] at 4/5. Supine
straight leg raise test was positive at 45 degrees on the right, and 50 degrees on the left.
Appellant was able to squat 75 percent of normal, holding on. He had normal motion of the hips
and knees. Subjective complaints included slight pain in his lower back, which becomes
moderate to severe with lifting, bending, twisting and sneezing. Dr. Williams opined that
appellant had “a disability precluding heavy work activities.”
In a letter dated March 1, 2006, the Office acknowledged appellant’s refusal to
participate in the approved training program. The Office directed appellant to undergo training
according to the approved plan, or to show good cause for not undergoing the training program,
within 30 days. Appellant was advised that failure to comply with the Office’s instructions
would result in termination of the rehabilitation effort and initiation of action to reduce
compensation to reflect his probable wage-earning capacity, had he completed the training
program.
An April 14, 2006 closure memorandum from rehabilitation specialist, Mr. Hooker,
capsulized appellant’s participation in the approved rehabilitation plan. Mr. Hooker stated that
appellant’s failure to complete his training and subsequently obtain employment, was directly
attributable to his own somewhat resistive and “entitlement-oriented mindset.” Referencing an
April 13, 2006 updated labor market survey, Mr. Hooker concluded that the positions of cook
and cook helper were reasonably available in sufficient numbers in appellant’s local labor
market, and that these positions remained medically and vocationally appropriate, had appellant
completed the approved rehabilitation plan. In an April 17, 2006 vocational rehabilitation report,
Mr. Meyers stated that, since appellant had stopped participating in training altogether, he was
not successful in obtaining employment. However, he opined that appellant would have
acquired the skills to become employable as a cook or cook helper, had he participated in the
training.
In a decision dated May 12, 2006, the Office reduced appellant’s compensation for
failing, without good cause, to undergo vocational rehabilitation as directed. The Office found
that, if he had participated in vocational rehabilitation efforts, he would have been able to
perform the position of a cook or cook helper. Based upon the rehabilitation counselor’s closure
memorandum, the Office determined that these positions were suitable in that: the medical
evidence established that the required duties were within appellant’s work restrictions; the jobs
identified were reasonably available in sufficient numbers in appellant’s local labor market and
general commuting area and public transportation was available. The Office reduced appellant’s
compensation under 5 U.S.C. § 8113(b) based on the difference between his pay rate for
compensation purposes and what his wage-earning capacity would have been had he cooperated
with vocational rehabilitation efforts. The Office found that appellant’s date-of-injury salary was
$193.20 per week; that the current pay rate for the date-of-injury position was $724.03 per week;
that his wage-earning capacity was $270.00 per week; that he had a 37 percent wage-earning
capacity; that his adjusted wage-earning capacity was $71.48 (.37 x $193.20) per week; and that
his loss of wage-earning capacity was $121.72 per week. The Office found that appellant’s new

4

net compensation rate, increased by applicable cost-of-living adjustments, was $1,312.00 every
four weeks.
LEGAL PRECEDENT
Section 8104(a) of the Federal Employees’ Compensation Act provides that the Office
may direct a permanently disabled individual whose disability is compensable under this
subchapter to undergo vocational rehabilitation. The Office shall provide for furnishing the
vocational rehabilitation services.4
Section 8113(b) of the Act provides:
“If an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of this title, the Secretary, on
review under section 8128 of this title and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would have probably been his wageearning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Secretary.”5
Section 10.519(a) of the implementing regulations provides in pertinent part:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in, or continue to participate in a vocational rehabilitation effort when
so directed, [the Office] will act as follows:
(a) Where a suitable job has been identified, [the Office] will reduce the
employee’s future monetary compensation based on the amount which
would likely have been his or her wage-earning capacity had he or she
undergone vocational rehabilitation. [The Office] will determine this
amount in accordance with the job identified through the vocational
rehabilitation planning process, which includes meeting with the [Office]
nurse and the employer. The reduction will remain in effect until such
time as the employee acts in good faith to comply with the direction of
[the Office].”6
Application of the principles set forth in Albert C. Shadrick7 will result in the percentage
of the employee’s loss of wage-earning capacity.

4

5 U.S.C. § 8104(a).

5

5 U.S.C. § 8113(b).

6

20 C.F.R. § 10.519(a) (1999).

7

5 ECAB 376 (1973); 20 C.F.R. § 10.403(d)-(e).

5

ANALYSIS
The Board finds that the Office properly determined that appellant’s benefits should be
reduced based on his ability to earn wages as a cook or cook helper. Appellant failed, without
good cause, to participate in rehabilitation efforts. The Office’s May 12, 2006 decision will be
affirmed.
The Office found that appellant could perform the duties of a cook or cook helper. In
making this determination, the Office properly relied on the medical report of Dr. Swartz, a
Board-certified orthopedic surgeon, who opined that appellant could participate in a vocational
rehabilitation program, and could work full time, provided that he was not required to push, pull
or lift more than 50 pounds; squat or climb for more than two hours or kneel for more than three
hours. Dr. Swartz’s examination revealed a normal range of motion of the lumbar spine, no
relevant neurological findings and no atrophy in his lower extremities. He found no evidence of
low back strain and opined that appellant had no residual injury factors of disability. Dr. Swartz
indicated that appellant had chronic degenerative disc disease at L4-5 and L5-S1, which would
not be disabling. The Board has carefully reviewed the opinion of Dr. Swartz and notes that it
has reliability, probative value and convincing quality with respect to its conclusions regarding
the relevant issue of the present case. Dr. Swartz’s opinion is based on a proper factual and
medical history, in that he had the benefit of an accurate and up-to-date statement of accepted
facts, provided a thorough factual and medical history and accurately summarized the relevant
medical evidence. Appellant subsequently submitted a July 20, 2005 report from Dr. Williams
who opined that appellant had “a disability precluding heavy work activities.” However,
Dr. Williams did not adequately explain the basis for his stated conclusion. He did not provide a
full history or discuss the physical nature of the class activities required under the rehabilitation
program. Dr. Williams’ preclusion of heavy work activities is not explained. His report does not
create a conflict with the opinion of Dr. Swartz.8 Dr. Williams’ report failed to offer any opinion
regarding appellant’s ability to participate in vocational rehabilitation. As such this report is of
limited probative value.
The Board finds that appellant failed, without good cause, to participate in vocational
rehabilitation efforts. On May 12, 2004 the Office referred him to vocational rehabilitation
services. On December 27, 2004 appellant signed the proposed plan and agreed to participate
full time in job search activities, with the goal of obtaining the position of cook or cook helper, at
the rate of $14,040.00 per year. On February 7, 2005 Mr. Meyers informed appellant that the
vocational rehabilitation plan to attend the cooking program at CVOC had been approved,
advised appellant that training would begin on February 14, 2005 and would continue, from 8:00
a.m. to 3:30 p.m., every Monday through Friday for 12 weeks. The record reveals that appellant
attended training sporadically and ultimately refused to participate in vocational rehabilitation
program altogether, contending that he was physically unable to do so. Although Mr. Meyers
advised him of the necessity of submitting medical evidence substantiating his inability to
participate, appellant failed to do so. Rather, appellant indicated that he had not visited a doctor,
but was self-administering medication for pain obtained in Mexico. The rehabilitation specialist
8

The Board notes that, pursuant to the Dictionary of Occupational Titles, the physical demands of the “heavy”
strength category include strength levels of greater than 50 pounds occasionally.

6

opined that appellant’s failure to complete his training, and subsequently obtain employment,
was directly attributable to his own resistive mindset.
The Office advised appellant in a letter dated March 1, 2006 that failure to participate in
vocational rehabilitation efforts when he had not established that his medical condition justified
such failure, would result in penalties; he had 30 days to participate in such efforts or provide
good cause for not doing so; and his compensation would be reduced if he did not comply within
30 days with the instructions contained in the letters. In spite of the Office’s notice, appellant
did not participate in the vocational rehabilitation efforts or provide good cause for not doing so
within 30 days of the Office’s letter.
The Office reduced appellant’s compensation under 5 U.S.C. § 8113(b) based on the
difference between his pay rate for compensation purposes and what his wage-earning capacity
would have been had he cooperated with vocational rehabilitation efforts. Applying the
principles set forth in Shadrick,9 codified at 20 C.F.R. § 10.403, the Office found that appellant’s
date-of-injury salary was $193.20 per week; the current pay rate for the date-of-injury position
was $724.03 per week; his wage-earning capacity was $270.00 per week, based on the position
of cook or cook helper; his adjusted wage-earning capacity was $71.48 (.37 x $193.20) per week;
and that his loss of wage-earning capacity was $121.72 per week. The Office found that
appellant’s new net compensation rate, increased by applicable cost-of-living adjustments, was
$1,312.00 every four weeks. The Board has reviewed these calculations and finds that they
appropriately represent appellant’s loss of wage-earning capacity.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation for failing,
without good cause, to undergo vocational rehabilitation as directed.

9

See Albert C. Shadrick, supra note 7

7

ORDER
IT IS HEREBY ORDERED THAT the May 12, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8