United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, KIRKWOOD POST
OFFICE, St. Louis, MO, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0255
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On November 14, 2019 appellant, through counsel, filed a timely appeal from an
October 24, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the October 24, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a re currence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.
FACTUAL HISTORY
On April 19, 2004 appellant, then a 34-year-old city mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed metatarsalgia and chondromalacia of the
patella due to factors of her federal employment, including continuous walking, standing, stair
climbing, and carrying a mail satchel. She noted that she first became aware of her condition and
its relation to her federal employment on February 6, 2004. On the reverse side of the claim form,
appellant’s supervisor noted that she was placed on limited duty on February 7, 2014 with
restrictions of three hours of continuous walking. On October 5, 2007 OWCP accepted her claim
for bilateral plantar fibromatosis and bilateral tarsal tunnel syndrome.
On August 19, 2014 Dr. Shari L. Kaminsky, a podiatrist, provided permanent work
restrictions for an eight-hour day consisting of intermittent walking for one hour, intermittent
standing for two hours, and operating a motor vehicle for one hou r. She also provided lifting
restrictions of no more than 10 pounds.
In a December 16, 2014 form report, Dr. Kaminsky diagnosed plantar fasciitis as well as
tarsal tunnel syndrome and opined that appellant was totally disabled from work from
September 25, 2014 through January 9, 2015. She indicated that appellant could resume regular
work on January 9, 2015.
On December 28, 2014 and January 9, 2015 appellant filed claims for compensation (Form
CA-7) for total disability beginning September 25, 2014 through January 9, 2015.
In a January 16, 2015 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested that she submit additional factual and medical evidence supporting her
claim for total disability beginning September 25, 2014. OWCP further provided appellant with a
questionnaire for completion and requested a report from her physician addressing the relationship
between her disability and her employment injury. It afforded her 30 days to submit the necessary
evidence. No response was received.
By decision dated March 6, 2015, OWCP denied appellant’s claim for a recurrence of total
disability commencing September 25, 2014.
On February 29, 2016 appellant requested reconsideration of the March 6, 2015 decision
and submitted additional evidence in support of her claim.
An August 20, 2014 electromyogram and nerve conduction velocity (EMG/NCV) study
demonstrated bilateral tarsal tunnel syndrome, mild on the right, and moderate on the left.
In notes dated October 16 and November 18, 2014, Dr. Kaminsky found appellant totally
disabled and released her to work without restrictions on November 3, 2014 and December 12,
2014, respectively. On January 29, 2015 she found appellant disabled from work for the period
September 25, 2014 through March 2, 2015.
2

In a January 29, 2015 treatment note, Dr. Kaminsky diagnosed tarsal tunnel syndrome. She
related that appellant felt her foot pain was extreme, but that she was spending very little time on
her feet at work. Dr. Kaminsky noted pain with palpation of the base of the right second toe and
the second metatarsal head as well as the right second intermetatarsal space. She also reported a
positive Tinel’s sign at the tarsal tunnel bilaterally, as well as pain upon palpation of the medial
tarsal area, the flexor halluces brevis, and the arch. Dr. Kaminsky found that she was experiencing
chronic changes from her long-term tarsal tunnel syndrome and recommended a tarsal tunnel
decompression. She noted that appellant was no longer taking prescribed pain medication, which
had relieved some of her foot pain.
On February 13, 2015 Dr. Kaminsky completed a form report diagnosing tarsal tunnel
syndrome and indicating that appellant was totally disabled from work through June 25, 2015. On
March 2, 2015 she again found that appellant was totally disabled from work for the period
September 25, 2014 through June 25, 2015.
On February 13, 2015 appellant responded to OWCP’s development questionnaire and
submitted additional medical evidence. She attributed her recurrence of total disability on
September 25, 2014 to chronic changes from tarsal tunnel syndrome.
On May 6, 2015 Dr. Kaminsky performed a surgical right tarsal tunnel decompression.
Appellant provided notes beginning June 11, 2015 from Brian Harthill, a physical therapist.
On June 24, 2015 Dr. Kaminsky found that appellant was totally disabled from work for
the period September 25, 2014 through September 1, 2015. In a follow-up note dated July 13,
2015, she indicated that appellant could return to light-duty work. Dr. Kaminsky found that
appellant was totally disabled from work for the period September 25, 2014 through July 13, 2015.
Through a separate July 13, 2015 form report, she found that she could returned to light-duty work
with her prior restrictions.
On July 15, 2015 the employing establishment offered appellant a permanent light-duty
position as an accounting support technician. Appellant accepted the position on that date.
In a February 22, 2016 attending physician’s report (Form CA-20), Dr. Kaminsky
diagnosed chronic changes from long-term tarsal tunnel syndrome, including EMG findings, a
positive Tinel’s sign, and musculoskeletal swelling. She checked a box marked “Yes” indicating
that appellant’s condition was caused or aggravated by employment activities and listed walking,
standing, and weight-bearing of postal equipment. Dr. Kaminsky found that appellant was totally
disabled for the period September 25, 2014 through July 13, 2015.
By decision dated May 27, 2016, OWCP denied modification of the March 6, 2015
decision.
On May 23, 2017 appellant resubmitted her August 20, 2014 EMG study. She also
provided a January 22, 2015 right foot magnetic resonance imaging (MRI) scan which
demonstrated mild intermetatarsal bursitis situated between the heads of the second and third
metatarsals.
On December 9, 2016 appellant provided additional physical therapy notes from
Mr. Harthill.
3

In a note dated April 13, 2017, Dr. Kaminsky reviewed appellant’s medical treatment for
tarsal tunnel syndrome. She opined that tarsal tunnel syndrome was caused by overuse from
walking, standing, or pedaling of an automobile for long periods of time. Dr. Kaminsky reviewed
her MRI scan and noted that her symptoms of pain in the right second and third intermetatarsal
spaces was consistent with pain that could radiate from tarsal tunnel syndrome. She noted that
appellant did not have a neuroma or mass on MRI scan. Dr. Kaminsky provided her findings on
physical examination including positive Tinel’s sign of the tarsal tunnel, bilaterally, and pain upon
palpation of the medial tarsal tunnel, flexor hallucis brevis, and the arch. She opined that appellant
was having chronic changes from the long-term tarsal tunnel syndrome and that she believed that
she had a neurological origin for her pain, which was why she recommended tarsal tunnel
decompression. Dr. Kaminsky noted that during the period of disability from September 25, 2014
through July 13, 2015 that she was unable to alleviate her foot pain and felt that keeping her off
work with rest and pain medication would help her functionally.
On May 24, 2017 appellant requested reconsideration of the May 27, 2016 decision.
By decision dated November 16, 2017, OWCP denied modification.
In an undated report, Dr. Kaminsky opined that appellant had experienced a spontaneous
worsening of her work-related tarsal tunnel syndrome due to chronic changes that rendered her
unable to work from September 25, 2014 until July 13, 2015. She noted that appellant had pain in
the right intermetatarsal space and the right third intermetatarsal space that was consistent with
radiating pain from tarsal tunnel syndrome. Dr. Kaminsky reported that on physical examination
she had symptoms consistent with chronic worsening of her tarsal tunnel syndrome including pain
upon palpation of the right second intermetatarsal space, and slightly to the right of the of the third
intermetatarsal space, positive Tinel’s sign of the tarsal tunnel, bilaterally, and pain upon palpation
of the tarsal tunnel, flexor hallucis brevis, and the arch.
On September 27, 2018 appellant, through counsel, requested reconsideration.
By decision dated February 25, 2019, OWCP denied modification.
OWCP continued to receive medical evidence. In a report dated April 16, 2019,
Dr. Kaminsky detailed appellant’s medical history, including her surgery on March 25, 2015. She
noted that appellant had persistent and worsening pain in her right foot. Dr. Kaminsky diagnosed
unspecified mononeuropathy of the right lower limb.
On August 26, 2019 appellant, through counsel, requested reconsideration of the
February 25, 2019 decision. She provided additional treatment notes from Dr. Kaminsky and
Dr. Jerry M. Liddell, a podiatrist and associate of Dr. Kaminsky, dated July 14 through
December 16, 2014. Counsel contended that Dr. Kaminsky’s notes were sufficient to meet
appellant’s burden of proof to establish a recurrence of total disability on September 25, 2014.
On July 24, 2014 Dr. Kaminsky noted appellant’s report of bilateral foot pain and that she
had not sought treatment for several years. She recounted that appellant reported throbbing,
shooting, radiating, burning, tingling, numbness, and stiffness in her feet, worse on the right.
Appellant’s pain continued to increase and was aggravated by walking and weight-bearing, but
noted that she continued performing light-duty work. On physical examination Dr. Kaminsky
noted no overt deformities and normal arch structure. She found pain upon compression of the
common peroneal nerve bilaterally, tarsal tunnel bilaterally, and under the metatarsal heads one
4

through five, bilaterally. Dr. Kaminsky also found pain upon palpation of the heels plantarly
bilaterally. She diagnosed chronic tarsal tunnel syndrome, chronic plantar fasciitis, and chronic
ankle and foot pain. Dr. Kaminsky noted that appellant’s physical examination was normal except
for reports of pain, that her foot structure was good, and that she did not exhibit fat pad atrophy.
She also reported that her neurological examination was normal, but recommended an EMG study.
On August 5, 2014 Dr. Liddell noted that appellant had been unable to work lately because
of increased symptoms. On physical examination he found a positive Tinel’s sign on the dorsal of
her feet bilaterally which may be intermediate dorsal cutaneous nerve or deep peroneal nerve
distribution. Dr. Liddell found a negative Tinel’s sign over the tarsal tunnel bilaterally. He
reported tenderness with palpation in the intermetatarsal spaces centrally with the most intense
area being the second intermetatarsal space bilaterally.
In an October 16, 2014 treatment note, Dr. Kaminsky again recounted appellant’s
description of her foot pain. On physical examination, she found the same pain pattern as
demonstrated on July 24, 2014. Dr. Kaminsky noted that appellant’s EMG study showed tarsal
tunnel syndrome bilaterally. She again reported that, other than pain, appellant’s physical
examination seemed to be very normal. Dr. Kaminsky found that compression around the tarsal
tunnel was giving appellant pain at the ankle, heel, arch, and on the entire plantar service of the
feet bilaterally. She concluded that appellant had failed conservative care and needed to consider
surgical correction.
On November 18, 2014 Dr. Kaminsky reported that appellant had injured her right second
toe on a hard object one month earlier. She found that appellant had torn the dorsal ligament of
the distal interphalangeal joint of the right second toe. Dr. Kaminsky examined appellant on
December 16, 2014 and noted that she had traumatically torn a ligament in the dorsal capsule of
her right second toe. She opined that appellant’s problem was not caused by the injury to the right
second toe. Dr. Kaminsky recommended further electrodiagnostic testing to ensure that she was
not overlooking secondary signs of tarsal tunnel syndrome or capsular injury the right second
metatarsal phalangeal joint.
By decision dated October 24, 2019, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee ha s returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment. 4 This term also means an inability to work when a light-duty assignment, made
specifically to accommodate an employee’s physical limitations due to work-related injury or
illness, is withdrawn or altered so that the assignment exceeds the employee ’s physical limitations.
A recurrence does not occur when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties, or a reduction-in-force.5

4

20 C.F.R. § 10.5(x); T.J., Docket No. 18-0831 (issued March 23, 2020).

5

Id.

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When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury -related
condition or a change in the nature and extent of the limited-duty job requirements.6 This burden
includes the necessity of furnishing evidence from a qualified physician who concludes, on the
basis of a complete and accurate factual and medical history, that for each period of disability
claimed, the disabling condition is causally related to the employment injury, and supports that
conclusion with medical reasoning. 7 Where no such rationale is present, the medical evidence is
of diminished probative value.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.
First, the Board notes that appellant did not allege, and the evidence does not establish, a
change in the nature and extent of appellant’s light-duty work requirements. Additionally, there
is no indication in the record that the employing establishment withdrew a light-duty work
assignment. The remaining issue is whether the medical evidence demonstrated a worsening of
appellant’s accepted bilateral foot conditions such that she could not perform limited -duty work.
After returning to part-time limited-duty work on May 22, 2010, appellant again sought
medical treatment from Dr. Kaminsky beginning on July 24, 2014. Thereafter, Dr. Kaminsky
diagnosed chronic tarsal tunnel syndrome, chronic plantar fasciitis, and chronic ankle and foot
pain. On August 19, 2014 she provided permanent work restrictions. Appellant also sought
treatment October through December 2014. In a December 16, 2014 form report, Dr. Kaminsky
diagnosed plantar fasciitis as well as tarsal tunnel syndrome and found that appellant was totally
disabled from September 25, 2014 through January 9, 2015. She did not, however, offer an
opinion on causal relationship between appellant’s claimed disability and factors of her federal
employment. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition or disability is of no probative value. 9 As such, these reports
are of no probative value and do not establish appellant’s disability claim.
In a series of reports, she attributed appellant’s disability from work to chronic changes
from her long-term tarsal tunnel syndrome. Dr. Kaminsky noted that appellant’s symptoms of
pain in the right second and third intermetatarsal spaces were consistent with pain that could radiate
from tarsal tunnel syndrome. She also listed appellant’s findings on physical examination
6

S.D., Docket No. 19-0955 (issued February 3, 2020); Terry R. Hedman, 38 ECAB 222 (1986).

7

J.M., Docket No. 19-1517 (issued January 29, 2020); Ronald A. Eldridge, 53 ECAB 218 (2001); Mary A. Ceglia,
Docket No. 04-0113 (issued July 22, 2004).
8

Id.

9

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

6

including positive Tinel’s sign of the tarsal tunnel bilaterally and pain upon palpation of the medial
tarsal tunnel, flexor hallucis brevis, and the arch. The Board notes that pain is a symptom, not a
compensable medical diagnosis. 10 Dr. Kaminsky did not provide medical rationale supporting an
objective worsening of the accepted conditions between September 25, 2014 and July 14, 2015
such that appellant could no longer perform her modified-duty position. The Board has held that
reports are of limited probative value regarding causal relationship if they do not contain medical
rationale explaining how a given medical condition/disability was related to the accepted
employment injuries.11
In a February 22, 2016 attending form report, Dr. Kaminsky diagnosed chronic changes
from long-term tarsal tunnel syndrome, including EMG findings, a positive Tinel’s sign, and
musculoskeletal swelling. She checked a box marked “Yes” indicating that appellant’s condition
was caused or aggravated by employment activities and listed walking, standing and weight bearing of postal equipment. Dr. Kaminsky found that she was totally disabled from
September 25, 2014 through July 13, 2015. The Board has held that a report that addresses causal
relationship with an affirmative checkmark, without medical rationale explaining how the
employment injuries resulted in the period of disability, is of diminished probative value and
insufficient to establish causal relationship.12
On August 5, 2014 Dr. Liddell noted that appellant had been unable to work because of
increased symptoms. On physical examination he found a positive Tinel’s sign on the dorsal of
her feet bilaterally which may be intermediate dorsal cutaneous nerve or deep peroneal nerve
distribution. Dr. Liddell also found a negative Tinel’s sign over the tarsal tunnel bilaterally.
However, he did not address whether appellant was disabled from work during the claimed period.
As Dr. Liddell did not address the claimed dates of disability, his opinion is insufficient to establish
her claim.13
Appellant also submitted diagnostic studies. The Board has held, however, that diagnostic
studies, standing alone, lack probative value as they do not address whether the employment injury
caused any period of disability. 14 These reports are therefore insufficient to establish the claim.

10

R.S., Docket No. 19-1131 (issued April 2, 2020).

11

G.R., Docket No. 19-0940 (issued December 20, 2019); D.L., Docket No. 19-0900 (issued October 28, 2019);
Y.D., Docket No. 16-1896 (issued February 10, 2017); C.M., Docket No. 14-0088 (issued April 18, 2014).
12

J.B., Docket No. 18-1751, 19-0793 (issued May 6, 2019); S.C., Docket No. 18-1242 (issued March 13, 2019);
Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).
13

M.L., Docket Nos. 18-1058, 18-1224 (issued November 21, 2019); T.L., Docket No. 18-0934 (issued May 8,
2019); Sandra D. Pruitt, 57 ECAB 126 (2005).
14

M.J., Docket No. 19-1287 (issued January 13, 2020); see J.S., Docket No. 17-1039 (issued October 6, 2017).

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Appellant also submitted notes from Mr. Harthill, a physical therapist. As physical
therapists are not considered physicians under FECA, his reports are insufficient to establish
entitlement to compensation benefits. 15
As the medical evidence of record is insufficient to establish a recurrence of disability from
work for the period September 25, 2014 through July 14, 2015 causally related to the accepted
employment conditions, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.

Section 8101(2) of FECA provides that a physician includes: “surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); J.B., supra note 12; T.K., Docket No. 19-0055 (issued
May 2, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician assistants,
and physical therapists are not competent to render a medical opinion under FECA).
15

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ORDER
IT IS HEREBY ORDERED THAT the October 24, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 13-1218
Issued: September 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 23, 2013 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) decisions dated February 5 and December 17, 2012, and
April 11, 2013. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 26 percent binaural hearing loss causally
related to his federal employment, for which he received a schedule award.
FACTUAL HISTORY
Appellant, a 61-year-old clerk, filed an occupational disease claim on July 1, 2012,
alleging that he sustained a bilateral hearing loss caused by factors of his federal employment.
He was exposed to noise from November 23, 1983 to September 29, 2011 at the postal service
1

5 U.S.C. § 8101 et seq.

from mail processing machines and old copy machines in a small room for eight hours per day,
five days per week. Appellant retired from federal employment on September 29, 2011.
Appellant was previously granted a 26 percent award for bilateral hearing loss on July 22,
2009 under case number xxxxxx374. On August 21, 2012 he filed a Form CA-7 claim for a
schedule award based on an additional binaural hearing loss.
OWCP referred appellant for a second opinion examination with Dr. James Autin, Boardcertified in sleep medicine, who found in a November 14, 2012 report that appellant had a 25
percent binaural hearing loss. Dr. Autin diagnosed severe, bilateral noise-induced sensorineural
hearing loss and checked a box indicating that appellant’s noise exposure in his federal
employment was sufficient to cause binaural hearing loss. He stated, however, that he was
unable to ascertain with certainty whether appellant’s workplace exposure was sufficient as to
intensity and duration to have caused the loss in question. An audiogram performed on
Dr. Autin’s behalf on November 14, 2012 reflected testing at the frequency levels of 500, 1,000,
2,000 and 3,000 cycles per second (cps) and revealed the following decibel losses: 25, 35, 50
and 45 for the right ear and 50, 55, 60 and 65 for the left ear respectively. Based on these results
and in accordance with American Medical Association, Guides to the Evaluation of Permanent
Impairment (sixth edition) (A.M.A., Guides), Dr. Autin determined that appellant had a 25
percent binaural hearing loss. He recommended hearing aids.
By decision dated December 17, 2012, OWCP found that appellant failed to establish that
he had any additional permanent impairment for hearing loss causally related to his federal
employment. It noted that appellant was previously granted a 26 percent award for bilateral
hearing loss on July 22, 2009 under case number xxxxxx374.
On January 3, 2013 appellant requested reconsideration. He resubmitted portions of
Dr. Autin’s November 14, 2012 report but did not submit any new medical evidence.
By decision dated February 5, 2013, OWCP denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require OWCP to review its prior decision.
On February 8, 2013 appellant requested reconsideration. He submitted copies of
audiological examinations from June 8, 2009 and May 18, 2012, in addition to other undated
tests, which showed varying degrees of hearing loss.
By decision dated April 11, 2013, OWCP denied modification of the December 17, 2012
decision.

2

LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each
frequency are added up and averaged.6 Then, the fence of 25 decibels is deducted. The
remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing
loss.7 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.8 The Board has concurred in
OWCP’s adoption of this standard for evaluating hearing loss.9
Further, the requirements of the evidence to be used in evaluating occupational hearingloss claims require 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 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

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

4

Id.

5

Federal (FECA) Procedure Manual, Part 3 -- Schedule Awards, Special Determinations, Chapter 2.700.4.b
(January 2010).
6

Id.

7

Id.

8

Id.

9

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

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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.10
ANALYSIS
OWCP accepted that appellant sustained a bilateral hearing loss due to noise. It
developed the claim by referring him to Dr. Autin. On November 14, 2012 Dr. Autin examined
appellant and an audiogram was obtained on the physician’s behalf. He found, using OWCP’s
standard procedures, that appellant’s noise exposure in his federal employment was sufficient to
cause binaural hearing loss. The November 14, 2012 audiogram tested decibel losses at 500,
1,000, 2,000 and 3,000 cps and recorded decibel losses of 25, 35, 50 and 45 respectively in the
right ear. The total decibel loss in the right ear is 155. When divided by 4, the result is an
average hearing loss of 38.75 decibels. The average of 38.75 decibels, reduced by 25 decibels
(the first 25 decibels were discounted as discussed above), equals 13.75 decibels, which when
multiplied by the established factor of 1.5 computes a 20.63 percent hearing loss in the right ear.
The audiogram tested decibel losses for the left ear at 500, 1,000, 2,000 and 3,000 cps and
recorded decibel losses of 50, 55, 60 and 65 respectively. The total decibel loss in the left ear is
230. When divided by four, the result is an average hearing loss of 57.50 decibels. The average
hearing loss of 57.50 is reduced by the fence of 25 decibels to 32.50, which when multiplied by
the established factor of 1.5 computes a 48.75 percent hearing loss in the left ear. Therefore
under this calculation appellant had a 25 percent binaural hearing loss. OWCP’s medical adviser
concurred in this finding; however, as OWCP had already granted appellant an awarded for a 26
percent binaural hearing loss, it properly denied appellant’s claim for an additional schedule
award in its December 17, 2012 decision.
Appellant requested reconsideration and submitted results from audiometric testing
performed on June 8, 2009 and May 18, 2012, in addition to other undated tests. These
audiograms are insufficient to satisfy appellant’s burden of proof as they do not comply with the
requirements set forth by OWCP. These tests lack speech testing and bone conduction scores
and were not prepared or certified as accurate by a physician as defined by FECA. None of the
audiograms were accompanied by a physician’s opinion addressing how his employment-related
noise exposure caused or aggravated any hearing loss. OWCP is not required to rely on this
evidence in determining the degree of appellant’s hearing loss because it does not constitute
competent medical evidence and, therefore, is insufficient to satisfy appellant’s burden of
proof.11 Dr. Autin provided a thorough examination and a reasoned opinion explaining how the
findings on examination and testing were due to the noise in appellant’s employment. The Board
finds that Dr. Autin’s report represents the weight of the evidence. The April 11, 2013 decision
is affirmed.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

10

See Joshua Holmes, 42 ECAB 231 (1990).

11

Id.

4

CONCLUSION
The Board finds that appellant has no greater than a 26 percent binaural hearing loss
causally related to his federal employment, for which OWCP granted him a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 11, 2013, December 17 and February 5, 2012 are affirmed.
Issued: September 6, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

5


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1113
Issued: October 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 14, 2014 appellant, through his attorney, filed a timely appeal from the
October 18, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
three percent permanent impairment of his left arm, for which he received a schedule award.
FACTUAL HISTORY
OWCP initially accepted that on August 7, 2007 appellant, then a 47-year-old clerk,
sustained a right shoulder sprain and a right rotator cuff tear due to moving a heavy mail
container. He received compensation on the daily rolls. On March 17, 2008 appellant

1

5 U.S.C. §§ 8101-8193.

underwent OWCP-authorized arthroscopic repair surgery of his right shoulder condition.2
OWCP later expanded his claim to accept a temporary aggravation of left shoulder tendinitis,
resolved.
In an October 27, 2009 report, Dr. David Weiss, an attending osteopath, provided a
description of appellant’s medical history and detailed the results of his examination of appellant.
On examination, the right shoulder revealed well-healed portal arthroscopy scars. There was
anterior cuff tenderness and range of motion revealed restriction involving crossover adduction
and external rotation. Examination of the left shoulder revealed a well-healed anterior surgical
scar and there was anterior cuff tenderness. Dr. Weiss indicated that range of motion testing
revealed restriction involving forward elevation, abduction, crossover adduction and internal
rotation. Circumduction produced crepitus within the acromioclavicular joint and the Hawkins
impingement sign and O’Brien test were positive. Dr. Weiss concluded that appellant had five
percent permanent impairment of his right arm and five percent permanent impairment of his left
arm under the standards of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009). For the left arm,
appellant fell under a three percent default value for his grade 1 left shoulder impingement
syndrome. He had a grade modifier 2 for functional history, grade modifier 2 for physical
examination and grade modifier 2 for clinical studies and application of the Net Adjustment
Formula meant that appellant moved from the three percent default value to the five percent
rating on Table 15-5.
On September 9, 2010 appellant was examined by Dr. Stuart L. Gordon, a Boardcertified orthopedic surgeon.3 In a September 9, 2010 report, Dr. Gordon stated that appellant’s
shoulders had full range of motion overhead and that there was good rotator cuff strength. He
noted that there was mild trapezius soreness, more on the right than on the left and that the
Spurling’s test was negative. Labral testing, O’Brien testing and apprehension testing were all
noted to be negative. In an addendum report dated December 10, 2010, Dr. Gordon discussed
why he felt that appellant’s left shoulder condition was consequential to his August 7, 2007 right
shoulder injury. His opinion formed the basis for OWCP’s acceptance on January 4, 2011 of
appellant’s claim for temporary aggravation of left shoulder tendinitis, resolved.
On July 2, 2012 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and an
OWCP medical adviser, provided an opinion on the permanent impairment of appellant’s arms.
He reviewed the medical evidence of record, including the examinations of Dr. Weiss and
Dr. Gordon and concluded that appellant had five percent permanent impairment of his right arm
and three percent permanent impairment of his left arm under the sixth edition of the A.M.A.,
Guides. Dr. Berman indicated that he derived grade modifiers from Dr. Gordon’s examination
rather than from Dr. Weiss’ examination because Dr. Gordon was a Board-certified orthopedic
surgeon and Dr. Weiss was not. For the left arm, appellant fell under a three percent default
value for his grade 1 left shoulder impingement syndrome. He had a grade modifier 1 for
functional history, grade modifier 1 for physical examination and grade modifier 1 for clinical
2

Appellant previously underwent left shoulder surgery in 1995.

3

Dr. Gordon performed the examination as an impartial medical specialist who was asked to resolve a conflict in
the medical opinion evidence regarding whether appellant had developed a left shoulder condition consequential to
his August 7, 2007 right shoulder injury.

2

studies and application of the Net Adjustment Formula meant that he did not move from the
three percent default value on Table 15-5 on page 402. Dr. Berman indicated that the date of
maximum medical improvement was October 27, 2009, the date of Dr. Weiss’ examination.
In a January 4, 2013 decision, OWCP granted appellant schedule awards for five percent
permanent impairment of his right arm and three percent permanent impairment of his left arm.
The awards ran for 24.96 weeks based on the impairment rating of Dr. Berman.4
Appellant requested a hearing with an OWCP hearing representative. During the
April 11, 2013 hearing, counsel argued that OWCP should have accepted Dr. Weiss’ assessment
that appellant has five percent impairment of his left arm or at least found that there was a
conflict in the medical evidence regarding his left arm impairment.
In a June 20, 2013 decision, the hearing representative set aside OWCP’s January 4, 2013
schedule award decision and remanded the case for further development. He indicated that
additional explanation was required regarding Dr. Berman’s choice of October 27, 2009, the date
of Dr. Weiss’ examination, as the date of maximum medical improvement for appellant’s left
arm.
In an October 16, 2013 report, Dr. Morley Slutsky, a Board-certified occupational
medicine physician serving as an OWCP medical adviser, determined that it was appropriate to
use October 27, 2009 as the date of maximum medical improvement for appellant’s left arm.
Dr. Slutsky stated:
“The date of [maximum medical improvement] is October 27, 2009 (date of
examination by Dr. Weiss). The shoulder conditions had stabilized on this date,
there was no further treatment planned and the shoulder conditions did not change
significantly (clinically) between the period of time between Dr. Weiss’
exam[ination] on October 27, 2009 and the exam[ination] performed by
Dr. Gordon (September 9, 2010).”
In an October 18, 2013 decision, OWCP found that appellant did not meet his burden of
proof to establish that he has more than three percent permanent impairment of his left arm. It
found that Dr. Berman’s impairment rating together with the report of Dr. Slutsky regarding the
date of maximum medical improvement, established that appellant had three percent permanent
impairment of his left arm.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
4

The award indicated that appellant had a total arm impairment of eight percent, but the basis of the award makes
it clear that the award was for a five percent permanent impairment of the right arm and a three percent permanent
impairment of the left arm. The Board notes that he is not currently contesting the amount of the schedule award
compensation for his right arm and the matter of his right arm impairment is not presently before the Board.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

3

loss or loss of use, of scheduled members or functions of the body. However, it does not specify
the manner in which the percentage of loss shall be determined. For consistent results and to
ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
The A.M.A., Guides has been adopted by the implementing regulations as the appropriate
standard for evaluating schedule losses.7 For OWCP decisions issued on or after May 1, 2009,
the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating permanent
impairment.8
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder and the elbow, the relevant portions of the
arm for the present case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on
page 401. After the Class of Diagnosis (CDX) is determined from the Shoulder Regional Grid
(including identification of a default grade value), the Net Adjustment Formula is applied using
the grade modifier for Functional History (GMFH), grade modifier for Physical Examination
(GMPE) and grade modifier for Clinical Studies (GMCS). The Net Adjustment Formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”10 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.11
ANALYSIS
OWCP accepted that on August 7, 2007 appellant sustained a right shoulder sprain and a
right rotator cuff tear due to moving a heavy mail container and a temporary aggravation of left
shoulder tendinitis, resolved, which was sustained as a consequence of his accepted right
shoulder conditions.12

7

Id.

8

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
9

See A.M.A., Guides (6th ed. 2009) 401-11. Table 15-5 also provides that, if motion loss is present for a claimant
who has undergone a shoulder arthroplasty, impairment may alternatively be assessed using section 15.7 (range of
motion impairment). Such a range of motion impairment stands alone and is not combined with a diagnosis
impairment. Id. at 405, 475-78.
10

5 U.S.C. § 8123(a).

11

William C. Bush, 40 ECAB 1064, 1975 (1989).

12

Appellant previously underwent left shoulder surgery in 1995.

4

In a January 4, 2013 decision, OWCP granted appellant schedule awards for five percent
permanent impairment of his right arm and three percent permanent impairment of his left arm.
Appellant did not contest the schedule award for his right arm and it is not before the Board. In
an October 18, 2013 decision, OWCP found that he did not meet his burden of proof to establish
that he has more than three percent permanent impairment of his left arm. It based its decision
on a July 2, 2012 impairment rating of Dr. Berman, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, together with the October 16, 2013 report of Dr. Slutsky, a Boardcertified occupational disease physician serving as an OWCP medical adviser, who determined
that Dr. Berman appropriately used October 27, 2009 as the date of maximum medical
improvement.
The Board finds that there is a conflict in the medical opinion evidence regarding
appellant’s left arm impairment which requires that the case be further developed.13
On July 2, 2012 Dr. Berman found that appellant had three percent permanent
impairment of his left arm under the sixth edition of the A.M.A., Guides. He indicated that
appellant fell under a three percent default value for his grade 1 left shoulder impingement
syndrome. Dr. Berman had a grade modifier 1 for functional history, grade modifier 1 for
physical examination and grade modifier 1 for clinical studies and application of the Net
Adjustment Formula meant that appellant did not move from the three percent default value on
Table 15-5 on page 402. He indicated that the date of maximum medical improvement was
October 27, 2009, the date of Dr. Weiss’ examination.14
In contrast, Dr. Weiss determined on October 27, 2009 that appellant had five percent
permanent impairment of his left arm under the sixth edition of the A.M.A., Guides. Appellant
fell under a three percent default value for his grade 1 left shoulder impingement syndrome. He
had a grade modifier 2 for functional history, grade modifier 2 for physical examination and
grade modifier 2 for clinical studies and application of the Net Adjustment Formula meant that
he moved from the three percent default value to the five percent rating on Table 15-5.15
In order to resolve the outstanding conflict regarding appellant’s left arm impairment, the
case shall be remanded to OWCP for referral of him to an impartial medical specialist for an
examination and opinion on this matter. After such further development, OWCP shall issue an
appropriate decision regarding his left arm impairment.

13

See supra notes 10 and 11.

14

The Board notes that Dr. Slutsky correctly indicated that it was appropriate for Dr. Berman to use this date of
maximum medical improvement as appellant’s left arm condition did not change greatly thereafter.
15

The Board notes that Dr. Berman chose to base his grade modifiers on the September 9, 2010 evaluation of
Dr. Gordon, a Board-certified orthopedic surgeon who served as an impartial medical specialist with respect to a
nonschedule award matter. The Board notes that the findings of Dr. Weiss could also be referenced in evaluating
schedule award impairment.

5

CONCLUSION
The Board finds that, due to a conflict in the medical opinion evidence, the case is not in
posture for decision regarding whether appellant has more than three percent permanent
impairment of his left arm, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 18, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: October 2, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Denver, CO, Employer
__________________________________________

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Appearances:
Tarneshia Davis, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1075
Issued: February 21, 2019

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 May 1, 2018 appellant, through her representative, filed a timely appeal from a
December 7, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).2 As more than 180 days has elapsed from OWCP’s last merit decision, dated June 2,

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

On her application for review (Form AB-1), appellant requested an oral argument pursuant to 20 C.F.R. § 501.5(b).
On November 21, 2018 she indicated that she no longer desired an oral argument. The Board will therefore proceed
with a decision based on the review of the case as submitted on the record.

2017, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP abused its discretion when it denied appellant’s October 25,
2017 request for an oral hearing before an OWCP hearing representative as untimely filed pursuant
to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On August 5, 2016 appellant, then a 56-year-old voucher examiner, filed a traumatic injury
claim (Form CA-1), alleging that on July 31, 2016 she aggravated her knees when she tripped and
fell over a street sign while in the performance of duty. She did not stop work.
By decision dated June 2, 2017, OWCP denied the claim finding that appellant had not
been injured while in the performance of duty. It found that she was not on the clock or on agency
premises when the injury occurred.
By appeal request form dated and postmarked October 25, 2017, appellant requested an
oral hearing before an OWCP hearing representative. OWCP received additional evidence.
By decision dated December 7, 2017, OWCP’s hearing representative found that
appellant’s request for an oral hearing was untimely filed. She informed appellant that her case
had been considered in relation to the issues involved, but that the request was denied because the
issues in the case could equally well be addressed by requesting reconsideration from OWCP and
submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP hearing representative, provides that “a claimant for compensation not satisfied with a
decision of the Secretary under subsection (a) of this section is entitled, on request made within 30
days after the date of the issuance of the decision, to a hearing on his or her claim before a
representative of the Secretary.”4 Sections 10.617 and 10.618 of the federal regulations
implementing this section of FECA provide that a claimant shall be afforded a choice of an oral
hearing or a review of the written record by a representative of the Secretary.5 A claimant is
entitled to a hearing or review of the written record as a matter of right only if the request is filed

3

5 U.S.C. § 8101 et seq.

4

Id. at § 8124(b)(1).

5

20 C.F.R. §§ 10.616, 10.617.

2

within the requisite 30 days as determined by postmark or other carrier’s date marking and before
the claimant has requested reconsideration.6
Although there is no right to a review of the written record or an oral hearing, if not
requested within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.7
ANALYSIS
The Board finds that OWCP did not abuse its discretion when it denied appellant’s
October 25, 2017 request for an oral hearing before an OWCP hearing representative as untimely
filed pursuant to 5 U.S.C. § 8124(b).
The Board initially finds that OWCP properly determined that appellant’s request for an
oral hearing was untimely filed. OWCP’s regulations provide that the request for an oral hearing
must be filed within 30 days of the date of the decision for which a review is sought.8 Because
appellant’s request was postmarked October 25, 2017, more than 30 days after OWCP’s June 2,
2017 decision, it was untimely filed and she was not entitled to an oral hearing as a matter of right.9
The Board further finds that OWCP’s hearing representative properly exercised her
discretion in denying appellant’s request for an oral hearing by determining that the issue in the
case could be addressed equally well through a request for reconsideration and the submission of
new evidence relevant to the issues at hand.10 The Board has held that the only limitation on
OWCP’s authority is reasonableness. An abuse of discretion is generally shown through proof of
manifest error, a clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deductions from established facts.11 Herein, the evidence of record does
not indicate that OWCP abused its discretion by denying appellant’s request for an oral hearing.
Accordingly, the Board finds that OWCP properly denied her oral hearing request.12
On appeal appellant argues the merits of her claim. The only issue before the Board,
however, is whether OWCP abused its discretion when it denied her October 25, 2017 request for

6

Id. at § 10.616(a).

7

20 C.F.R. § 10.616(b); see also F.M., Docket No. 18-0161 (issued May 18, 2018); Eddie Franklin, 51 ECAB 223
(1999); Delmont L. Thompson, 51 ECAB 155 (1999).
8

See S.M., Docket No. 17-1876 (issued January 24, 2018); R.T., Docket No. 08-0408 (issued December 16, 2008).

9

See J.A., Docket No. 17-1744 (issued January 9, 2018).

10

See B.H., Docket No. 18-0874 (issued October 10, 2018); see also D.P., Docket No. 14-0308 (issued April 21,
2014); D.J., Docket No. 12-1332 (issued June 21, 2013).
11

See B.H., id; R.G., Docket No. 16-0994 (issued September 9, 2016); Teresa M. Valle, 57 ECAB 542 (2006).

12

See J.O., Docket No. 17-0789 (issued May 15, 2018).

3

an oral hearing as untimely filed. As the Board lacks jurisdiction to review the underlying merits
of appellant’s claim, it cannot review her arguments regarding her traumatic injury claim.13
CONCLUSION
The Board finds that OWCP did not abuse its discretion when it denied appellant’s
October 25, 2017 request for an oral hearing before an OWCP hearing representative as untimely
filed pursuant to 5 U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the December 7, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 21, 2019
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

13

See G.S., Docket No. 18-0388 (issued July 19, 2018).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR,
)
NATIONAL PARK SERVICE,
)
GETTYSBURG NATIONAL MILITARY PARK, )
Gettysburg, PA, Employer
)
__________________________________________ )
C.M., Appellant

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

Docket No. 09-940
Issued: December 24, 2009

Case Submitted on the Record

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

JURISDICTION
On February 25, 2009 appellant filed a timely appeal from the merit decision dated
December 31, 2008 suspending his compensation benefits. His appeal is also timely filed from
the January 26, 2009 decision denying reconsideration on the merits. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits and nonmerits of this case.
ISSUES
The issues are: (1) whether the Office properly suspended appellant’s compensation
benefits effective December 31, 2008; and (2) whether the Office properly denied appellant’s
request for reconsideration pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that he gave the Office 48 hours’ notice to cancel the
appointment and that he could not attend the appointment because he needed to care for his wife
and could not leave her for even one-half hour.

FACTUAL HISTORY
On May 17, 1994 appellant, then a 52-year-old laborer, filed a traumatic injury claim
alleging that on May 16, 1994 he slipped and fell in a ditch while weeding and hurt his leg and
lower back. The Office accepted appellant’s claim for bursitis of the right knee, lumbosacral
strain and right knee soft tissue fibrosis. On September 5, 1995 it issued a schedule award for a
35 percent impairment of the right lower extremity. The Office paid appropriate medical and
compensation benefits.
On August 16, 2007 appellant’s treating Board-certified orthopedic surgeon,
Dr. Lawrence F. Honick, noted that his continuing impression for appellant was severe
degenerative disease of the lower back with spondylosis as well as an internal derangement of
the right knee. He opined that appellant was totally disabled with regard to any type of work
activity.
In a report dated October 9, 2008, Dr. Robert Franklin Draper, Jr., the Board-certified
orthopedic surgeon to whom the Office referred appellant for a second opinion, noted that
appellant’s only diagnosis that is causally connected to the job is a lumbosacral strain and
contusion of the right knee. He opined that appellant was capable of performing modified-duty
work and could perform a job that did not require him to lift more than 25 pounds. Dr. Draper
indicated that appellant can work five to six days a week and 8 to 10 hours a day. He believed
that these limitations were not causally related to the accident in 1994 but were related to
preexisting pathological conditions.
By letter dated October 23, 2008, the Office referred appellant to Dr. S. Edward Said, a
Board-certified orthopedic surgeon, to resolve the conflict between Drs. Honick and Draper with
regard to the cause and extent of impairment due to appellant’s work-related injury. It noted that
the date of the examination was December 12, 2008 at 8:00 a.m. and provided appellant with
Dr. Said’s address and telephone number.
On December 10, 2008 appellant called the Office and indicated that he would not be
able to attend the appointment on December 12, 2008 because his wife just got out of the
hospital and will be going back on December 13, 2008 and that he needed to take care of her.
On December 11, 2008 a representative from the Office returned appellant’s telephone call and
indicated that appellant must make every effort to attend the December 12, 2008 appointment
and notified appellant that if he missed the appointment his benefits would be suspended from
December 20, 2008 until he attends and fully cooperates with the examination. On
December 12, 2008 an Office representative spoke with a person from Dr. Said’s office who
indicated that appellant failed to appear for the appointment.
By letter dated December 12, 2008, the Office gave appellant a notice of proposed
suspension of compensation as he failed to attend and fully cooperate with a scheduled referee
medical examination with Dr. Said on December 12, 2008. It notified appellant that, if he
believed he had a valid reason for failing to submit or cooperate with the scheduled examination,
he should submit his response, with supporting evidence, to the Office within 14 days from the
date of the letter. The Office informed appellant that, if he did not show good reason for failing

2

to keep the appointment, his benefits would be suspended under 5 U.S.C. § 8123(d) until he
attended and fully cooperated with the examination.
By letter dated December 12, 2008, Dr. Said confirmed that appellant did not show for
his appointment on December 12, 2008. He also noted that appellant called him on
December 10, 2008 and cancelled his appointment.
By letter to the Office dated December 24, 2008, appellant stated that his wife had a
breathing attack and underwent a tracheotomy, and that he was therefore unable to attend the
appointment. He attached a note from his wife’s physician dated December 6, 2008 indicating
that he needed to take care of his wife for two weeks.
By decision dated December 31, 2008, the Office finalized the proposed suspension of
compensation, effective the date of the decision.
By letter dated January 7, 2009, appellant requested reconsideration. He indicated that he
tried to get several people to take care of his wife in his absence but could not find anyone
because he was the only one who knew how to take care of her. Appellant also noted that he
notified both the Office and Dr. Said’s office of his need to cancel the appointment. In further
support thereof, he submitted an operative report indicating that his wife was admitted to the
hospital on December 1, 2008 and had an open tracheotomy on December 3, 2008 due to
respiratory failure, bilateral arytenoid fixation and stridor.
By decision dated January 26, 2009, the Office denied reconsideration without review of
the merits.
LEGAL PRECEDENT -- ISSUE 1
Section 8123(a) provides that an employee shall submit to examination by a medical
officer of the United States or by a physician designated or approved by the Secretary of Labor,
after the injury and as frequently and at the times and places as may be reasonably required. The
regulations governing the administration of the Federal Employees’ Compensation Act also
provide that the employee must submit to an examination by a qualified physician as often and at
such times and places as the Office considers reasonably necessary.1
To invoke 5 U.S.C. § 8123(d), the Office must ensure that the claimant has been properly
notified of his or her responsibilities with respect to the medical examination scheduled. Either
the claims examiner or the medical management assistant may contact the physician directly and
make an appointment for examination. The claimant and representative, if any, must be notified
in writing of the name and address of the physician to whom he or she is being referred as well
as the date and time of the appointment. The notification of the appointment must contain a
warning that benefits may be suspended under 5 U.S.C. § 8123(d) for failure to report for
examination. The claimant must have a chance to present any objections to the Office’s choice

1

20 C.F.R. § 10.320.

3

of physician or any reasons for failure to appear for the examination before the Office acts to
suspend compensation.2
If the claimant does not report for a scheduled appointment, he or she should be asked in
writing to provide an explanation within 14 days. If good cause is not established, entitlement to
compensation should be suspended in accordance with 5 U.S.C. § 8123(d) until the date on
which the claimant agrees to attend the examination.3
ANALYSIS -- ISSUE 1
The Office suspended appellant’s compensation benefits effective December 31, 2008
under section 8123(d) of the Act on the grounds that he failed to attend a scheduled medical
examination. The Board finds that the suspension of benefits was proper.
A conflict existed in medical opinion between appellant’s attending physician,
Dr. Honick, and the second opinion physician, Dr. Draper, as to the cause and extent of
appellant’s impairment due to his work-related injury. Dr. Honick opined that appellant had
continued severe degenerative disease of the lower back with spondylosis as well as an internal
derangement of the right knee and was totally disabled from any work activity. Dr. Draper
indicated that appellant could work full time with his only limitation being a prohibition of
lifting more than 25 pounds. He believed these limitations were necessary due to preexisting
pathological conditions and not to his employment injury. An impartial medical examination
was necessary to determine whether appellant had any continuing employment-related residuals.
Under section 8123 of the Act and its implementing regulations, appellant was required to attend
this examination.4
By letter dated October 23, 2008, the Office notified appellant that he was being referred
to Dr. Said for an impartial medical evaluation to resolve the conflict in the medical opinion
evidence. It informed him of his obligations to attend and cooperate. The notice clearly
explained that appellant’s compensation benefits would be suspended for failure to report to or
an obstruction of the examination under section 8123(d) of the Act. The Office advised
appellant that the examination was scheduled for 8:00 a.m. on December 12, 2008. Appellant
was also provided with Dr. Said’s address and telephone number.
Appellant indicated that he telephoned both the Office and Dr. Said on December 10,
2008 and stated that he would be unable to attend the appointment because his wife just had
surgery and that he needed to take care of her. The Office called appellant back on
December 11, 2008 and notified appellant that if he missed is appointment his benefits would be
suspended. Appellant did not show for the appointment. Based on Dr. Said’s confirmation of
appellant’s missed appointment, the record reveals that appellant cancelled the appointment on
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14 (July 2000).
3

Id.

4

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323.

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December 10, 2008, prior to speaking with an Office representative on December 11, 2008. The
Office considered appellant’s excuse that he had to take care of his wife who recently had
surgery. However, it found that the medical evidence submitted indicating that he had to miss
the appointment to take care of his wife was not compelling. Although appellant indicated that
he had to take care of his wife who was recovering from a tracheotomy necessitated by a
breathing attack, there was no medical condition mentioned in the physician’s brief note nor does
it state that he could not attend the appointment with Dr. Said. There is no indication that he
could not arrange for someone else to take care of his wife while he went to the appointment.
The law requires appellant to submit to an Office-directed examination as directed.5 Appellant
cannot make the decision himself not to attend the appointment, nor are his assertions that he
could not attend the appointment, without adequate support, a sufficient reason to not attend.
The Office, in is October 23, 2008 letter, appropriately directed appellant to report for an
impartial medical examination on December 12, 2008. Appellant failed to appear for the
examination on the scheduled date and failed to show good cause for not complying with the
Office’s directive. The Board finds that the Office properly suspended appellant’s compensation
benefits effective December 31, 2008.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,6
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.7 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.8 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.9
ANALYSIS -- ISSUE 2
Appellant does not allege in the request for reconsideration that the Office erroneously
applied or interpreted a point for law; nor, did he advance a legal argument not previously
considered by the Office. He did submit new evidence, specifically an operative report
indicating that his wife was admitted to the hospital on December 1, 2008 for respiratory failure
and had an open tracheotomy on December 3, 2008. Although this evidence does establish the
5

E.B., 59 ECAB __ (Docket No. 07-1618 issued January 8, 2008).

6

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.606(b)(2).

8

Id. at 10.607(a).

9

Id. at 10.608(b).

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reason for appellant’s wife’s medical condition, it is not relevant and pertinent evidence as it still
does not provide evidence as to why he needed to miss his appointment. The note indicates that
the surgery was on December 3, 2008 and appellant’s appointment was on December 12, 2008,
nine days after the surgery. There is still no indication from appellant’s wife’s physician that
appellant could not leave his wife for several hours while he attended the appointment. The
Board also notes that appellant did not call to cancel the appointment until 48 hours prior to the
appointment even though his wife’s surgery was nine days earlier. Accordingly, as this evidence
does not provide a reason that appellant could not attend the appointment with Dr. Said, it is not
relevant and pertinent, and is insufficient to require merit review.
CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation benefits
effective December 31, 2008. The Board further finds that the Office properly denied
appellant’s request for reconsideration pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 26, 2009 and December 31, 2008 are affirmed.
Issued: December 24, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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