United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 13-899
Issued: July 28, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 5, 2013 appellant filed a timely appeal from an October 19, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 7 percent impairment of the left arm or
10 percent impairment of the right arm, for which she received schedule awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a December 14, 2010 decision, the
Board reviewed an OWCP decision denying any additional impairment beyond 5 percent of the
left arm and 10 percent of the right arm.3 The Board found that neither the impartial medical
examiner, Dr. Joseph Huston, a Board-certified orthopedic surgeon, or an OWCP medical
adviser, properly applied the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (2009). There was no indication that
either physician made reference to Appendix 15-B of the A.M.A., Guides or applied Table 15-23
to the evaluation of the medical evidence. Further, neither physician provided any evaluation of
the grade modifiers applicable to appellant’s case.4 The facts as set forth in the Board’s prior
decisions are hereby incorporated by reference.
On remand, OWCP asked Dr. Huston to clarify his rating. In a report dated April 1,
2011, he stated that his original report was the first time that he used the A.M.A., Guides.
Dr. Huston did not recall whether Appendix 15-B or Table 15-23 was used or whether the grade
modifiers in relation to functional history and physical examination were applied and that the
information sought by OWCP was not available. OWCP subsequently determined that he was
not able to resolve the conflict in medical opinion.
On August 4, 2011 OWCP referred appellant to Dr. Garth S. Russell, a Board-certified
orthopedic surgeon, for an impartial medical examination. In an October 3, 2011 report,
Dr. Russell reviewed the medical record and statement of accepted facts. On physical
examination, he noted that appellant had no muscle spasm of the neck or shoulders and a full
range of motion of the shoulders and elbows. Dr. Russell noted a loss of 10 degrees of flexion
and 5 degrees of extension in the right wrist compared to the left. Appellant had 60 degrees of
flexion in her left wrist with 25 degrees of extension. Dr. Russell further noted a 10 degree loss
of supination with normal pronation and a loss of 10 degrees of flexion and 10 degrees of
extension in her left wrist. Further, examination with a dynamometer on the right side revealed a
grip of 24, 24, 20, 22 and 22 and in appellant’s left wrist she had 16, 16, 16, 14 and 14.
Dr. Russell found that her range of motion in her fingers was normal, although there was some
decrease in sensory two-point touch over the median nerve distribution of the thumb, index and
long fingers on both hands with some loss of sensation on a subjective basis in the left hand.
Based on the sixth edition of the A.M.A., Guides, appellant had a 5 percent impairment of the
right arm and 10 percent impairment of the left arm. The 10 percent impairment of the left upper
extremity was due to the fact that she exhibited consistent motor weakness as well as a sensory
2

Docket No. 07-2097 (issued January 29, 2008). The Board found that the case was not in posture for decision
due to a conflict in the medical evidence on whether appellant had more than a 10 percent impairment of the right
arm, for which she received a schedule award. In Docket Nos. 08-2134 and 08-2201 (issued August 5, 2009) the
Board remanded the case for OWCP to further develop the medical evidence regarding the extent of impairment to
both upper extremities.
3

On June 4, 1993 appellant, then a 33-year-old senior claims examiner, filed an occupational disease claim
alleging bilateral carpal tunnel syndrome and tendinitis due to repetitive typing, keying and grasping movements in
her federal employment. OWCP accepted her claim for bilateral carpal tunnel syndrome.
4

Docket No. 10-731 (issued December 1, 2010).

2

abnormality and night pain syndrome within the left forearm and wrist. In addition, there was
impairment of motion in the left forearm, wrist and hand when compared to the right.
In a June 16, 2012 report, Dr. Lawrence A. Manning, an OWCP medical adviser,
reviewed Dr. Russell’s findings on examination and applied the sixth edition of the A.M.A.,
Guides. He stated that Table 15-23 at page 449 of the A.M.A, Guides, provided impairment for
entrapment/compression neuropathy and Table 15-21 at pages 438 to 448, provided for
peripheral nerve impairment. Dr. Manning noted that Dr. Russell rated five percent impairment
of the right arm. He noted that the loss of range of motion measurements by Dr. Russell
included 25 degrees extension and 50 degrees flexion, which represented 10 percent permanent
impairment of the right arm; which did not supersede the 10 percent rating previously made and
would not be in addition to what was previously awarded. As to the left wrist range of motion,
25 degrees extension represented seven percent impairment and 60 degrees flexion represented
zero (no) impairment. Dr. Manning noted that Dr. Russell also mentioned decreased supination
by 10 degrees with normal pronation, but the affected side (left or right) was not listed and the
amount of pronation or supination was not given in degrees. He disagreed with Dr. Russell as to
the 10 percent impairment rating of the left upper extremity as Dr. Russell did not provide
adequate findings to support the rating. Dr. Manning found that the range of motion findings
supported a seven percent left upper extremity impairment, which was two percent additional
impairment than previously awarded.
By decision dated October 19, 2012, OWCP granted a schedule award for an additional
two percent impairment of the left upper extremity. It denied appellant’s claim for an additional
impairment to the right arm as the medical evidence did not support greater impairment.
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
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.7 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
5

5 U.S.C. § 8107.

6

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

7

Id.

8

Veronica Williams, 56 ECAB 367, 370 (2005).

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and Health (ICF).9 Under the sixth edition for upper extremity impairments, the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).11
For evaluating impairment related to dysfunction of the median nerves, the sixth edition
of the A.M.A., Guides (6th ed. 2009) contains Appendix 15-B (Electrodiagnostic Evaluation of
Entrapment Syndromes). It provides that the criteria for carpal tunnel syndrome include distal
motor latency longer than 4.5 milliseconds for an 8-centimeter (cm) study; distal peak sensory
latency longer than 4 cm for a 14-cm distance; and distal peak compound nerve latency of longer
than 2.4 milliseconds for a transcarpal or midpalmar study of 8 cm. If different distances were
used in testing, correction to the above-state distances could be accomplished by assuming each
1 cm of distance required 0.2 milliseconds.12
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.13 In
Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories of
test findings, history and physical findings. The grade modifier levels are averaged to arrive at
the appropriate overall grade modifier levels and to identify a default rating value. The default
rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.14
When an impartial medical specialist is selected to resolve a conflict in medical evidence,
OWCP has the responsibility to assure that the medical opinion of the referee is well rationalized
and based on a proper factual and medical background. When OWCP obtains a medical opinion
that requires clarification or elaboration, it should secure a supplemental report to correct the
defects of the original report.15 Further, it is well established that in the circumstance of a
conflict in medical opinion, an OWCP medical adviser may review the report of the impartial
specialist but not substitute his or her opinion for that of the medical referee. The resolution of a
conflict in medical evidence is the responsibility of the impartial medical specialist.16

9

A.M.A., Guides 403, section 1.3, The ICF; A Contemporary Model of Disablement.

10

Id. at 385-419.

11

Id. at 411.

12

Id. at 487, Appendix 15-B.

13

Id. at 449.

14

Id. at 448-50.

15

See V.G., 59 ECAB 635 (2008).

16

See G.J., Docket No. 14-137 (issued June 24, 2014); Richard R. LeMay, 56 ECAB 341 (2005).

4

ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome.
On
November 29, 1994 it granted appellant a schedule award for 10 percent impairment of her right
arm. On June 12, 2008 OWCP granted appellant a schedule award for five percent left arm
impairment. Appellant contends that she has greater impairment.
In a prior appeal, the Board found a conflict in medical opinion between appellant’s
attending physician and an OWCP medical adviser. On remand, the case was initially referred to
Dr. Huston for an impartial medical examination and impairment rating; however, he advised
that he had not previously rated impairment of the A.M.A., Guides and was unable to respond to
the request for clarification as to appellant’s permanent impairment. Thereafter, OWCP properly
referred appellant to Dr. Russell for an impartial medical evaluation as to the extent of her
permanent impairment.
The Board finds that the report of Dr. Russell is not sufficient to resolve the conflict in
medical opinion. The October 3, 2011 report provided by the physician addressed permanent
impairment to appellant’s arms with general reference to the A.M.A., Guides and “modifiers.”
Dr. Russell failed to address any specific tables relevant to the assessment of impairment due to
carpal tunnel syndrome or explain how any specific grade modifier was determined in the final
ratings provided in this case. The Board notes that the A.M.A., Guides provide that the
impairment class is first determined by using the corresponding diagnosis-based regional grid.
In turn, once the grade is determined that the adjustment grids are utilized under the Net
Adjustment Formula to calculate the net adjustment. Impairment due to carpal tunnel syndrome
is evaluated under Table 15-23 (Entrapment/Compression Neuropathy Impairment) and the
accompanying relevant text. Under Table 15-23 grade modifiers (ranging from 0 to 4) are
described for the categories of test findings, history and physical findings.17 Dr. Russell failed to
specify how he applied the A.M.A., Guides. His impairment ratings are deficient as they do not
conform to the tables and protocols set forth in the sixth edition. As noted, with respect to
evaluating impairment related to dysfunction of the median nerves, Appendix 15-B
(Electrodiagnostic Evaluation of Entrapment Syndromes) contains criteria for evaluating whether
carpal tunnel syndrome is present. If carpal tunnel is found under the standard of Appendix
15-B, impairment is evaluated under the schedule found in Table 15-23. If carpal tunnel
syndrome is not found under the standards of Appendix 15-B, impairment due to median nerve
dysfunction is evaluated under the scheme found in Table 15-21. There is no evidence that
Dr. Russell took these factors into consideration in rating impairment.
In turn, Dr. Manning stated that he applied Table 15-23 at page 449 of the A.M.A.,
Guides as well as Table 15-21 at pages 438 to 448 of the A.M.A., Guides. Based on the report of
Dr. Russell, he determined that appellant had an additional two percent impairment of the left
arm. His report is also deficient in that he did not adequately explain how he applied the
applicable tables. Further, Dr. Manning’s report was utilized by OWCP to determine the extent
of permanent impairment, which was error. It is well established that a conflict in medical
opinion is to be resolved by the opinion of the selected impartial medical referee. An OWCP
17

See R.B., Docket No. 13-2040 (issued February 5, 2014).

5

medical adviser may review the report of an impartial specialist to determine whether the
A.M.A., Guides were properly applied, but may not substitute his or her judgment for that of the
selected referee physician.18
For these reasons, the Board finds that the medical evidence of record needs further
development. On remand, OWCP should ask Dr. Russell for clarification as to the extent of
impairment to appellant’s upper extremities with specific reference to the sixth edition of the
A.M.A., Guides. After such development as it deems necessary, OWCP shall issue a de novo
decision on her claim for additional schedule awards.
CONCLUSION
The Board finds that this case is not in posture for decision on the extent of impairment to
appellant’s arms.
ORDER
IT IS HEREBY ORDERED THAT the October 19, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: July 28, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

18

See supra note 16.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
McAllen, TX, Employer
__________________________________________

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

Docket No. 17-1527
Issued: January 9, 2018

Case Submitted on the Record

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

JURISDICTION
On July 3, 2017 appellant filed a timely appeal of a May 18, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established ratable hearing loss, warranting a schedule
award.
FACTUAL HISTORY
On August 31, 2016 appellant, then a 37-year-old border patrol agent, filed an
occupational disease claim (Form CA-2) alleging permanent hearing loss due to noise exposure
1

5 U.S.C. § 8101 et seq.

at work. He first became aware of his hearing loss and its relationship to his federal employment
on October 15, 2014. Appellant did not stop work and continued to be exposed to noise.
In an attachment to the Form CA-2, dated August 31, 2016, appellant noted working for
the employing establishment since December 1, 2003. He was required to participate in
quarterly qualifications for three weapons, pistol, rifle, and shot gun. Appellant indicated that
during those quarterly qualifications he expended 146 rounds of ammunition. He also noted
noise exposure from a handheld radio, all-terrain vehicles (ATV), helicopters, vehicle
emergency equipment, and sirens. Appellant underwent a hearing test on July 15, 2016 which
revealed moderate-to-severe hearing loss. He noted that his hearing gradually deteriorated and
in October 2014 he first noticed moderate ringing in his ear. Appellant advised that he often
has the volume on the television abnormally high and has to ask people to repeat themselves.
By letter dated September 7, 2016, OWCP advised appellant of the type of evidence
needed to establish his claim. In a letter of the same date, it requested that the employing
establishment address the sources of appellant’s noise exposure, decibel and frequency level,
period of exposure, and hearing protection provided.
The employing establishment submitted a statement from R.M., the supervisor of border
patrol agents, who reviewed appellant’s statements and concurred in his responses. R.M.
indicated that agents were continuously exposed to loud noises in the line of duty. He indicated
that appellant was currently exposed to loud noises associated with the firing range, loading and
offloading detainees from buses, traffic checkpoint inspections of vehicles with loud engine
noise, ATV’s, boats, and helicopters. This exposure varied from short periods of time to a few
hours daily. R.M. advised that appellant continued to be exposed to noise on a daily basis. He
submitted appellant’s optional application for federal employment (OF-612) dated
October 31, 2002. Also submitted was a sound level survey from the Federal Law Enforcement
Training Center in Georgia dated May 5, 1981. Appellant underwent an audiogram performed
by an audiologist on July 15, 2016. The audiogram noted appellant had right ear surgery in
2002.
In an undated statement appellant noted his employment history and advised that he did
not have hazardous noise exposure before 2003. From December 1, 2003 to the present he
worked as a border patrol agent and used several different service weapons including a 40caliber hand gun, M-4 carbine, and shot guns. Appellant noted qualifying with these weapons
for five to six hours every month in an outdoor range. He indicated that hearing protection was
provided in the form of earmuffs and goggles. Appellant noted being exposed to loud noise
from ATV’s, air operations (usually helicopters), air plane engines, bus engines, cell doors,
sirens, and loud service radio noises. He indicated that hearing protection was not provided in
any of these situations. Appellant noted being issued and using an earpiece which was attached
to his handheld portable radio. While in the field he inserted the earpiece into his ear an
average of six to eight hours per workday. Appellant indicated that the volume of the radios
were constantly being raised and lowered due to the signal strength transmission sent out over
the radios. He noted having right ear surgery in June 2002. Appellant advised that he did not
have any hobbies involving loud noise. He noted that the last time he was exposed to
hazardous noise was August 29, 2016 while working along ATV’s and helicopters. Appellant

2

first noticed hearing loss a couple of years earlier when he would have to increase the volume
of the television, and in conversations he would have to ask people to repeat themselves.
In a September 27, 2016 statement of accepted facts (SOAF), OWCP noted appellant’s
noise exposure history at work as well as his right ear surgery in 2002. It noted that appellant
continued to be exposed to loud noises on a daily basis.
On September 28, 2016 OWCP referred appellant, together with the SOAF, to
Dr. Charles P. Theivagt, a Board-certified otolaryngologist, for an otologic examination and an
audiological evaluation. In an October 25, 2016 report, Dr. Theivagt noted examining appellant
on October 25, 2016 and referenced appellant’s exposure to workplace noise. He noted
appellant complained of tinnitus. Dr. Theivagt advised appellant’s history was significant for a
right ear tympanic membrane perforation in 2002. Examination of the ears revealed normal
canals and drums, normal drum motility, left external auditory canal was clear, tympanic
membrane intact, well-aerated middle ear, right external auditory canal clear, tympanic
membrane intact, and well-aerated middle ear. Dr. Theivagt diagnosed bilateral high frequency
mild-to-moderate sensorineural hearing loss. He noted that appellant’s sensorineural hearing
loss was in excess of what would normally be predicated on the basis of presbycusis and opined
that appellant’s hearing loss was at least in part due to his workplace noise exposure.
Dr. Theivagt noted the appellant’s hearing loss pattern was consistent with noise exposure. He
recommended ear protection in noisy environments and binaural hearing aids.
Audiometric testing was performed for Dr. Theivagt on October 25, 2016. Testing at
the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed the following:
right ear 10, 20, 20, and 35 decibels; left ear 15, 20, 20, and 25 decibels. Dr. Theivagt opined
that appellant had zero percent monaural permanent impairment in the left ear and zero percent
monaural permanent impairment in the right ear.
On December 15, 2016 OWCP accepted appellant’s claim for bilateral sensorineural
hearing loss due to noise exposure. It also informed appellant how to proceed to obtain
hearing aids.
On February 24, 2017 appellant filed a claim for a schedule award (Form CA-7).
On March 8, 2017 an OWCP medical adviser reviewed Dr. Theivagt’s report and the
audiometric test of October 25, 2016. He concluded that, in accordance with the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides),2 appellant had zero percent monaural hearing loss in each ear and zero
percent binaural hearing loss. The medical adviser determined that appellant’s hearing loss was
not severe enough to be ratable for a schedule award after applying OWCP’s standards for
evaluating hearing loss to the results of the October 25, 2016 audiogram. He noted that
appellant reached maximum medical improvement on October 25, 2016. The medical adviser
recommended yearly audiograms, noise protection for his ears, and authorization for hearing
aids.

2

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

3

By decision dated May 18, 2017, OWCP found that although appellant’s hearing loss
was employment related it was not severe enough to be considered ratable for purposes of a
schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA3 and its implementing regulation4 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 OWCP as the appropriate standard for
evaluating schedule losses.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged.7 Then, the “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions.8 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss. The lesser loss is multiplied by five, then added to the greater loss and the total is divided
by six to arrive at the amount of the binaural hearing loss.10 The Board has concurred in
OWCP’s adoption of this standard for evaluating hearing loss.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

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

6

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

7

Id.

8

Id.

9

Id.

10

Id.

11
Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).

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providing rationale for the percentage of impairment specified.12 OWCP may follow the advice
of its medical adviser or consultant whether he or she has properly utilized the A.M.A., Guides.13
ANALYSIS
OWCP accepted that appellant sustained bilateral sensorineural hearing loss due to noise
exposure from his federal employment. The issue is whether he has established ratable
permanent impairment in accordance with the A.M.A., Guides, thereby warranting a schedule
award. The Board finds that the evidence of record does not establish that appellant has ratable
permanent impairment due to his accepted bilateral hearing loss. The October 25, 2016
audiogram results did not demonstrate ratable values in accordance with the sixth edition of the
A.M.A., Guides.
OWCP properly referred appellant to Dr. Theivagt for an examination relative to his
hearing loss. Dr. Theivagt’s October 25, 2016 examination found that appellant’s bilateral
sensorineural hearing loss was due to his workplace noise exposure. On March 8, 2017 an
OWCP medical adviser reviewed Dr. Theivagt’s report and found that the hearing loss was not
ratable for schedule award purposes. He applied the standardized procedures to the October 25,
2016 audiogram performed for Dr. Theivagt to determine if appellant’s hearing loss was ratable
for schedule award purposes.
Testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per
second revealed decibels losses of 10, 20, 20, and 35, respectively. These decibels were totaled
at 85 and were divided by 4 to obtain an average hearing loss at those cycles of 21.25 decibels.
The average of 21.25 decibels was then reduced by 25 decibels (the first 25 decibels were
discounted as discussed above) to equal zero percent hearing loss for the right ear.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per
second revealed decibels losses of 15, 20, 20, and 25 respectively. These decibels were totaled at
80 and were divided by four to obtain the average hearing loss at those cycles of 20 decibels.
The average of 20 decibels was then reduced by 25 decibels (the first 25 decibels were
discounted as discussed above) to zero which was multiplied by the established factor of 1.5 to
compute zero percent hearing loss for the left ear. Thus, OWCP’s medical adviser concluded
that appellant does not have a permanent impairment.
The Board finds that OWCP’s medical adviser applied the proper standards to
October 25, 2016 audiogram, finding zero percent binaural hearing loss.14 Appellant has
submitted a medical report establishing a percentage of hearing loss which would refute
opinion of the medical adviser. Although he has an employment-related hearing loss, it is

12

the
not
the
not

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
13

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

14

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

5

significant enough to be ratable for schedule award purposes.15 Appellant has, therefore, failed
to meet his burden of proof to establish permanent, ratable hearing loss warranting a schedule
award.
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.
CONCLUSION
The Board finds that appellant has not established ratable hearing loss, warranting a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2018
Washington, DC

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

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

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

15

See E.D., Docket No. 11-174 (issued July 26, 2011).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 14-188
Issued: April 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 1, 2013 appellant filed a timely appeal of an August 28, 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 the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition resulting in vomiting on May 31, 2013 in the performance of duty.
FACTUAL HISTORY
On July 16, 2013 appellant, then a 54-year-old senior claims examiner, filed a traumatic
injury claim alleging that she developed stress-related nausea on May 31, 2013 due to the
1

5 U.S.C. § 8101 et seq.

employing establishment’s directive to return to work. Appellant’s supervisor stated that
appellant received an administrative letter requesting that she return to work or provide medical
evidence to cover her absences since her entitlement to medical and wage-loss benefits was
terminated by OWCP on January 25, 2013.
The employing establishment controverted appellant’s claim noting that an April 22,
2013 memorandum directed appellant to return to work following the January 25, 2013
termination of her medical and compensation benefits for an accepted November 23, 2010 right
knee injury. The employing establishment stated that the letter from Andy Tharp, District
Director, was an administrative action and that there was no error or abuse in administering this
memorandum.
Appellant submitted a statement dated July 5, 2013 and noted that Mr. Tharp issued a
memorandum ordering her to return to work on April 25, 2013. She stated that following receipt
of this memorandum she became nauseated and eventually developed intractable vomiting.
Appellant sought treatment at a hospital emergency room. She alleged that the memorandum
from Mr. Tharp aggravated and irritated her to the extent that dormant stress was triggered and
developed into intractable vomiting.
The employing establishment submitted the April 22, 2013 Memorandum Ordering
Return to Work noting that appellant’s claim for medical and wage-loss benefits as a result of her
November 23, 2010 employment injury was terminated effective January 25, 2013. Mr. Tharp
directed her to provide medical documentation within 30 days if her continued absence was a
medical condition. He further noted that, if appellant failed to provide medical documentation,
submit a leave form or report to work, she would be placed in absent without leave (AWOL)
status. Mr. Tharp stated that unless she became available for duty on a regular full-time basis,
management would have no other recourse but to take adverse action against her, up to and
including removal from federal service.
Dr. Steven Verbinski, a Board-certified internist, completed a note dated June 3, 2013
and stated that appellant had an episode of intractable nausea and vomiting that required
hospitalization from May 31 through June 3, 2013. He alleged that she had experienced “a great
deal of stress related to her anxiety from her job.” Dr. Verbinski noted that appellant’s stress
was contributing to her symptoms of vomiting.
OWCP requested additional factual and medical evidence from appellant by letter dated
July 26, 2013. Appellant responded on August 1, 2013 and stated that the April 22, 2013
memorandum caused her to feel jittery and nauseated resulting in hospitalization on
May 31, 2013. She alleged that the memorandum was an abusive inappropriate administrative
action. Appellant stated that the employing establishment and Mr. Tharp were aware that she
planned to appeal the termination and that she could not return to work due to depression,
anxiety, multiple chronic pain issues and a panic attack at work on June 9, 2010. She denied any
outside sources of stress other than her diagnosis of diabetes.
By decision dated August 28, 2013, OWCP denied appellant’s claim finding that she had
not established a compensable factor of employment as she had not submitted corroborating

2

evidence that the April 22, 2013 memorandum constituted error or abuse in an administrative
action.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is 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 upon a traumatic injury or an occupational disease.4
OWCP 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 workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”5 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he and she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,8 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.9 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.10 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
2

5 U.S.C. §§ 8101-1893.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

20 C.F.R. § 10.5(ee).

6

John J. Carlone, 41 ECAB 354 (1989).

7

J.Z., 58 ECAB 529 (2007).

8

28 ECAB 125 (1976).

9

5 U.S.C. §§ 8101-8193.

10

See Robert W. Johns, 51 ECAB 136 (1999).

3

emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.11 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force, nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.12
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.13 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.14 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.15
ANALYSIS
Appellant filed a traumatic injury claim alleging that she developed nausea and vomiting
as the result of stress caused by the receipt of an April 22, 2013 memorandum from the
employing establishment directing her to return to work or provide medical evidence supporting
her inability to do so. In support of her traumatic injury claim, appellant submitted a note dated
June 3, 2013 from Dr. Verbinski alleging that appellant had experienced “a great deal of stress
related to her anxiety from her job” which was contributing to her symptoms of vomiting.
Appellant asserted that her emotional reaction to the April 22, 2013 memorandum
resulted in a physical condition. The Board finds that she has not attributed her emotional
condition and alleged consequential physical reaction to her regular or specially assigned duties.
Therefore, appellant has not alleged a compensable factor under Cutler.16
In Thomas D. McEuen,17 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
11

Cutler, supra note 8.

12

Id.

13

Charles D. Edwards, 55 ECAB 258 (2004).

14

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
15

Roger Williams, 52 ECAB 468 (2001).

16

Cutler, supra note 8.

17

See Thomas D. McEuen, supra note 14.

4

under FECA as such matters pertain to procedures and requirements of the employer and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the facts surrounding the administrative or personnel
action established error or abuse by employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.18
In a memorandum dated April 22, 2013, Mr. Tharp informed appellant of her obligation
to return to work or to provide medical documentation in support of her continued absence. He
further informed appellant that, if she did not report to work or provide the appropriate
documentation, then she could be considered AWOL which could result in other consequences
including termination of her federal service. Although the handling of leave requests and the
supporting documentation is generally related to employment, this is an administrative function
of the employer and not a duty of the employee. An administrative or personnel matter will be
considered to be an employment factor only where the evidence discloses error or abuse on the
part of the employing establishment.19 Appellant argued that the April 22, 3013 memorandum
was an abusive, inappropriate administrative action. She stated that the employing establishment
and Mr. Tharp were aware that she planned to appeal the termination and that she could not
return to work due to depression, anxiety, multiple chronic pain issues and a panic attack at work
on June 9, 2010. The Board finds that appellant’s evidence is insufficient to establish error or
abuse regarding the request for medical documentation supporting her continued absence from
work. The evidence establishes that the employing establishment acted reasonably.20 Appellant
has not established administrative error or abuse in the performance of these actions and
therefore they are not compensable under FECA.
Consequently, appellant has not established her claim for an emotional condition
resulting in a physical consequential injury as she has not attributed her claimed condition to any
compensable employment factors.21 She 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 the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.

18

See Richard J. Dube, 42 ECAB 916, 920 (1991).

19

C.S., 58 ECAB 137 (2006).

20

D.L., 58 ECAB 217 (2006).

21

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the August 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2014
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
B.L., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0652
Issued: December 17, 2020

Case Submitted on the Record

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

JURISDICTION
On January 31, 2020 appellant, through counsel, filed a timely appeal from a January 8,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.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 January 8, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish diagnosed medical
conditions causally related to the accepted April 19, 2019 employment incident.
FACTUAL HISTORY
On April 19, 2019 appellant, then a 36-year-old special agent, filed a traumatic injury claim
(Form CA-1) alleging that on that date he sustained rhabdomyolysis when participating in Special
Weapons and Tactics (SWAT) team tryouts while in the performance of duty. He noted that he
was involved in multiple tests, which included physical training exercises, combat shooting, and
problem-solving tests. On the reverse side of the claim form, the employing establishment
acknowledged that appellant was injured in the performance of duty. Appellant stopped work on
April 19, 2019.
In an April 24, 2019 attending physician’s report, Part B of an authorization for medical
examination and/or treatment (Form CA-16),4 a physician with an illegible signature noted that
appellant was injured when performing physical exercise.
The physician diagnosed
rhabdomyolysis and checked a box marked “Yes” to indicate that the diagnosed condition was
caused or aggravated by the described employment activity.
An x-ray of appellant’s chest, dated April 24, 2019, revealed bibasilar abnormal lung
opacity.
In a development letter, dated May 14, 2019, OWCP noted that when appellant’s claim
was first received it appeared to be a minor injury that resulted in minimal or no lost time from
work and, based on these criteria and because the employing establishment did not controvert
continuation of pay or otherwise challenge the case, payment of a limited amount of medical
expenses was administratively approved. It noted that it had reopened the claim for consideration
and requested additional medical evidence, including a physician’s opinion explaining how the
employment incident caused or aggravated the diagnosed condition. OWCP afforded appellant 30
days to submit the necessary evidence.
By decision dated June 21, 2019, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish a valid medical diagnosis causally related to the
accepted April 19, 2019 employment incident. It concluded, therefore, that the requirements had
not been met to establish an injury as defined by FECA.
On July 3, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted additional evidence including laboratory testing results, dated
April 19 to 26, 2019, which showed the results of hematology, metabolic, and urine testing.
In an April 19, 2019 report, Dr. Andrew Garvie, a Board-certified specialist in emergency
medicine, noted that appellant had been experiencing thigh cramping for the past three days
following a tryout for work which required physical exertion. He examined appellant and
4

The Board notes that the first page of the Form CA-16, is not contained in the case record.

2

reviewed his laboratory testing results. Dr. Garvie diagnosed nontraumatic rhabdomyolysis and
acute kidney injury.
Dr. Moses Kear, a Board-certified specialist in internal medicine, noted in an April 19,
2019 report that appellant had been experiencing bilateral thigh cramping for the prior three days.
He indicated that appellant was drinking water during the strenuous exercise required for his
training, but had problems urinating. Dr. Kear examined appellant and reviewed his laboratory
testing results. He diagnosed exertional rhabdomyolysis, abnormal liver function, dehydration,
and acute kidney injury.
In an April 20, 2019 report, Dr. Abla Awadh, a Board-certified specialist in internal
medicine, noted that appellant was experiencing abdominal discomfort and nausea. She examined
him and reviewed his laboratory testing. Dr. Awadh diagnosed acute rhabdomyolysis and acute
renal failure. She noted in an April 21, 2019 progress note appellant’s complaints of thigh
swelling, nausea, and epigastric discomfort. Dr. Awadh examined him and diagnosed acute renal
failure, acute rhabdomyolysis, thigh swelling, and abdominal pain.
Dr. Sandhu Ankur, a Board-certified nephrologist, noted in an April 21, 2019 report, that
appellant had severe quadriceps issues following his work training. She examined him and
reviewed his laboratory testing. Dr. Ankur diagnosed exertional rhabdomyolysis, hypocalcemia
setting of hypovolemic state, and thigh swelling.
In an April 22, 2019 report, Dr. Jenna McAllister, a Board-certified specialist in internal
medicine, noted that appellant was having some improvement in urinary output, but was still
experiencing pain and stiffness in the legs. She examined him and reviewed his laboratory testing
results. Dr. McAllister diagnosed exertional rhabdomyolysis, acute kidney injury, leg swelling,
and abnormal liver function tests.
In an April 22, 2019 report, Dr. Thomas Officer, a Board-certified specialist in nephrology,
noted that appellant’s hypocalcemia had resolved and his thigh swelling was improving. He
examined appellant and reviewed his laboratory test results. Dr. Officer diagnosed acute renal
failure, acute rhabdomyolysis, metabolic acidosis, and thigh swelling.
Dr. Officer noted in an April 23, 2019 report, that appellant’s metabolic acidosis seemed
to be stabilizing, but appellant’s acute renal failure was worsening. He examined appellant and
reviewed appellant’s laboratory test results. Dr. Officer diagnosed acute rhabdomyolysis, acute
renal failure, and metabolic acidosis.
In an April 23, 2019 report, Dr. McAllister noted that appellant’s urine output was
improving, but he still had stiffness and pain in the legs. She examined him and diagnosed
exertional rhabdomyolysis, acute kidney injury, leg swelling, and abnormal liver function tests.
Dr. McAllister noted in an April 24, 2019 follow-up report that appellant was hypoxic
overnight and his chest x-ray showed pleural effusions. She examined him and diagnosed
exertional rhabdomyolysis, hypoxia, acute kidney injury, leg swelling, and abnormal liver function
tests.
In an April 24, 2019 report, Dr. Thomas Fortune, a Board-certified nephrologist, noted that
appellant had experienced some shortness of breath and significant edema in both legs. He
3

examined appellant and reviewed appellant’s laboratory testing results. Dr. Fortune diagnosed
acute rhabdomyolysis, acute kidney injury, volume overload, hypertension, and edema.
In an April 25, 2019 report, Dr. McAllister noted a slight improvement in appellant’s
edema. She examined him and diagnosed exertional rhabdomyolysis, hypoxia, acute kidney
injury, leg swelling, abnormal liver function tests, and hypertension.
In an April 25, 2019 report, Dr. Fortune noted that appellant had edema in both legs, but
swelling had improved. He examined appellant and diagnosed acute kidney injury, hypertension,
rhabdomyolysis, and volume overload.
Appellant also submitted hospital progress notes from registered nurses dated April 20
to 25, 2019 which showed his treatment progression.
In an April 26, 2019 report, Dr. Fortune noted decreased edema in the legs and diagnosed
acute rhabdomyolysis, acute kidney injury, volume overload, and hypertension.
In an April 26, 2019 discharge report, Dr. McAllister noted that appellant’s exertional
rhabdomyolysis from strenuous activity was improving. She examined him and diagnosed
exertional rhabdomyolysis, hypoxia, acute kidney injury, leg swelling, abnormal liver function
tests, and hypertension. Dr. McAllister indicated that appellant’s conditions were improving and
ordered no strenuous activity pending a follow-up appointment.
Appellant submitted hospital discharge notes, order notes, medication lists, flowsheets,
care timelines, and care plans related to his April 19 to 26, 2019 hospital stay.
Appellant also submitted laboratory test results, dated April 28 to 30, 2019, which showed
the results of hematology, metabolic, and urine testing.
In an April 28, 2019 report, Dr. Brian Wexler, a Board-certified specialist in emergency
medicine, noted that appellant returned to the emergency department with generalized weakness
and bilateral lower extremity swelling. He examined appellant and reviewed appellant’s
laboratory test results. Dr. Wexler diagnosed nausea, hypertension, traumatic rhabdomyolysis,
acute renal failure, and hypertensive crisis.
In an April 29, 2019 report, Dr. Mirza Baig, a Board-certified specialist in internal
medicine, noted that appellant had bi-temporal headaches, intermittent nausea, and elevated blood
pressure. He examined appellant and reviewed appellant’s laboratory test results. Dr. Baig
diagnosed accelerated essential hypertension, acute kidney injury, exertional rhabdomyolysis,
nausea, and episodic headache.
In an April 29, 2019 report, Dr. Awadh noted that appellant was not in acute distress. She
examined him and diagnosed isolated systolic hypertension, acute renal failure, and
rhabdomyolysis. In an April 30, 2019 report, Dr. Awadh noted that appellant’s kidney function
was improving and that his rhabdomyolysis had almost resolved. She examined him and indicated
that he was stable for discharge.

4

In an April 30, 2019 report, Dr. Robert Canady, a Board-certified nephrologist, noted that
appellant was improving and was permitted to discharge from a renal perspective. He examined
appellant and diagnosed acute kidney injury, exertional rhabdomyolysis, and hypertension.
Appellant submitted hospital discharge notes, order notes, medication lists, flowsheets,
care timelines, and care plans related to his April 28 to 30, 2019 hospital stay.
In a May 7, 2019 report, Dr. Canady noted that appellant had no new problems, symptoms,
or complaints after being discharged from the hospital. He indicated that appellant still had mild
headaches, but was slowly improving. Dr. Canady examined appellant and diagnosed acute
kidney injury, hypertension, and exertional rhabdomyolysis. He recommended that appellant
avoid strenuous exertion and heavy lifting for the next three to four weeks.
Appellant submitted normal basic metabolic panel test results, dated May 31, 2019.
In a July 11, 2019 report, Dr. Canady noted that appellant was admitted to the hospital on
April 19, 2019 and was discharged on April 26, 2019. He indicated that appellant was diagnosed
with rhabdomyolysis, acute kidney injury, and other conditions as noted in appellant’s hospital
records. Dr. Canady opined that appellant’s conditions were precipitated by appellant’s April 18
to 19, 2019 participation in tryouts for his work.
A telephonic hearing was held on October 16, 2019. Appellant testified that he had never
had problems with exertional rhabdomyolysis, kidney failure, or hypertension before the
employment incident. Counsel argued that Dr. Canady’s opinion that appellant’s work tryouts
caused his rhabdomyolysis was a sufficient physiological explanation as rhabdomyolysis could be
caused by overexertion and there were no other intervening causes.
By decision dated January 8, 2020, OWCP’s hearing representative modified the June 21,
2019 decision, finding that appellant had established valid medical diagnoses in connection with
the accepted April 19, 2019 employment incident. The claim remained denied, however, because
the medical evidence of record was insufficient to establish a causal relationship between
appellant’s diagnosed conditions and the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

5

Supra note 2.

6

M.O., Docket No. 19-1398 (issued August 13, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

5

to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.9 The second component is whether the employment incident caused a personal injury.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant.12
OWCP’s procedures recognize that a claim may be accepted without a medical report when
the condition is a minor one which can be identified on visual inspection.13 In clear-cut traumatic
injury claims, such as a fall resulting in a broken arm, a physician’s affirmative statement is
sufficient and no rationalized opinion on causal relationship is needed. In all other traumatic injury
claims, a rationalized medical opinion supporting causal relationship is required.14
ANALYSIS
The Board finds that appellant has met his burden of proof to establish the conditions of
bilateral swelling and edema of the legs and thighs as casually related to the accepted April 19,
2019 employment injury.
In support of his claim, appellant submitted numerous reports dated April 19 through
July 11, 2019 from Drs. Garvie, Kear, Awadh, Ankur, McAllister, Officer, Canady, and Fortune
who diagnosed exertional rhabdomyolysis as well as visible conditions of thigh swelling, leg
swelling, and edema. As noted above, OWCP’s procedures recognize that a claim may be accepted
without a medical report when the condition is a minor one which can be identified on visual

7

J.R., Docket No. 20-0496 (issued August 13, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
8

B.M., Docket No. 19-1341 (issued August 12, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

T.J., Docket No. 19-0461 (issued August 11, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

10

D.M., Docket No. 20-0386 (issued August 10, 2020); John J. Carlone, 41 ECAB 354 (1989).

11

A.R., Docket No. 19-0465 (issued August 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

W.L., Docket No. 19-1581 (issued August 5, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

13

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

14

Id. at Chapter 2.805.3(d) (January 2013).

6

inspection.15 The Board therefore finds that this evidence is sufficient to meet appellant’s burden
of proof that he sustained bilateral swelling/edema of the legs and thighs.
The Board further finds that this case is not in posture for decision as to whether appellant
has met his burden of proof to establish additional diagnosed medical conditions causally related
to the accepted April 19, 2019 employment injury.
Appellant was also diagnosed with exertional rhabdomyolysis and associated medical
conditions with no clear visible manifestations, including acute kidney injury, acute renal failure,
hypocalcemia setting of hypovolemic state, metabolic acidosis, hypoxia, volume overload, and
hypertension. In his July 11, 2019 report, Dr. Canady opined that appellant’s conditions were
precipitated by his work participation in SWAT team tryouts on April 18 and 19, 2019. In clearcut traumatic injury claims, where the fact of injury is established and is clearly competent to cause
the condition described, a fully-rationalized medical opinion is not needed. The physician’s
diagnosis and an affirmative statement are sufficient to accept the claim.16 The Board therefore
finds that this report from Dr. Canady and appellant’s other hospital reports of record are sufficient,
when taken together, to require further development for these conditions.17 Dr. Canady is a Boardcertified specialist in nephrology who is qualified in his field of medicine to render rationalized
opinions on the issue of causal relationship. He reviewed appellant’s hospital records and provided
a comprehensive understanding of the claimed mechanism of injury, exertion. Dr. Canady’s
opinion is supportive, unequivocal, bolstered by objective findings, and based on an accurate
history.18 His opinion is not contradicted by any substantial medical or factual evidence of
record.19 While the July 11, 2019 medical report of Dr. Canady is insufficiently rationalized to
meet appellant’s burden of proof to establish the acceptance of nonvisible conditions, it does
explain a physiological process by which the accepted injury could have caused or aggravated the
diagnosed conditions.20 As such, further development of appellant’s claim is required.21
It is well established that proceedings under FECA are not adversarial in nature, and while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.22 OWCP has an obligation to see that justice is
done.23

15

Supra note 13.

16

Id.; see also S.S., Docket No. 20-0509 (issued August 18, 2020); A.J., Docket No. 19-1289 (issued
December 31, 2019).
17

C.H., Docket No. 20-0440 (issued August 3, 2020).

18

D.B., Docket No. 19-0504 (issued July 22, 2020).

19

Id.

20

C.H., supra note 17.

21

Id.

22

J.D., Docket No. 20-0404 (issued July 22, 2020); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael
Gallo, 29 ECAB 159, 161 (1978).
23

Id.

7

Thus, the Board will remand the case to OWCP to obtain a rationalized medical opinion
on the issue of whether appellant has sustained additional conditions causally related to the
accepted April 19, 2019 employment injury. On remand OWCP shall prepare a statement of
accepted facts and refer the matter to a specialist in the appropriate field of medicine. Upon
referral, the physician shall conduct a physical evaluation, if deemed necessary, and provide a
rationalized medical opinion as to whether any additional diagnosed conditions were caused or
aggravated by the accepted April 19, 2019 employment injury. Following this, and any other
further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish the conditions of
bilateral swelling and edema of the legs and thighs as casually related to the accepted April 19,
2019 employment injury. The Board further finds that this case is not in posture for decision as to
whether he has met his burden of proof to establish additional diagnosed medical conditions
causally related to the accepted April 19, 2019 employment injury.24

24

The Board notes that the case record contains an attending physician’s report (Part B of a Form CA-16), dated
April 24, 2019. A properly completed Form CA-16 form authorization may constitute a contract for payment of
medical expenses to a medical facility or physician, when properly executed. The form creates a contractual
obligation, which does not involve the employee directly, to pay for the cost of the examination or treatment regardless
of the action taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days
from the date of issuance, unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737
(issued November 2, 2018); N.M., Docket No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

8

ORDER
IT IS HEREBY ORDERED THAT the January 8, 2020 decision of the Office of
Workers’ Compensation Programs is reversed in part and set aside in part and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: December 17, 2020
Washington, DC

Christopher J. Godfrey, Deputy 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

9


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

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

Docket No. 18-0061
Issued: May 29, 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 October 10, 2017 appellant filed a timely appeal from a September 28, 2017 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 the claim.2
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted August 19, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

OWCP received evidence after it issued the September 28, 2017 decision. 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. 20 C.F.R. § 501.2(c)(1).
Therefore, evidence not before OWCP at the time of the September 28, 2017 decision will not be considered by the
Board for the first time on appeal.

FACTUAL HISTORY
On August 21, 2017 appellant, a 35-year-old rural carrier associate, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a low back injury in the performance of duty on
August 19, 2017 when his postal vehicle was struck by another vehicle.3 A supervisor noted on
the reverse side of claim form that the motor vehicle accident occurred in the performance of duty.
Appellant stopped work on August 19, 2017 and returned to regular duty on September 6, 2017.
An authorization for examination and/or treatment form (Form CA-16) was completed by
an employing establishment official on August 21, 2017 and purported to authorize treatment as a
result of the August 19, 2017 injury.
In a development letter dated August 23, 2017, OWCP requested that appellant submit
additional factual and medical evidence in support of his claim. To establish the factual portion
of his claim, appellant was provided a questionnaire to complete. OWCP also informed appellant
that rationalized medical evidence was needed to establish his claim. Appellant was afforded 30
days to respond.
OWCP received an August 19, 2017 x-ray report of appellant’s thoracic spine which found
no acute displaced fractures. It also received an August 19, 2017 computerized tomography (CT)
scan which found no evidence of cervical spine fracture.
In an August 23, 2017 report, Dr. Jessica Stepp, a family practitioner, reported that on
August 19, 2017 appellant’s mail jeep was hit so hard by another motor vehicle that the jeep landed
on a truck’s bed. She reported that appellant was evaluated at the emergency room and that a CT
scan of the cervical spine and x-rays of the lumbar and thoracic spines showed nothing acute.
Dr. Stepp provided an assessment of acute bilateral low back pain without sciatica and motor
vehicle collision (MVC).
In an August 23, 2017 duty status report (Form CA-17), Dr. Stepp noted that appellant had
low back muscle hypertonicity as a result of the MVC. The diagnosis due to injury was “pain in
thoracic spine for person injured in collision between motor vehicle.”
In an August 25, 2017 attending physician’s report (Form CA-20), Dr. Stepp diagnosed
low back pain without sciatica and MVC, which she noted, by checking a box marked “yes” that
it was caused or aggravated by the August 19, 2017 motor vehicle accident.
In a September 6, 2017 report, Dr. Stepp diagnosed acute bilateral low back pain without
sciatica, low back pain, and MVC. She released appellant to work without restrictions.
In a September 8, 2017 report, Dr. Stepp reported increased paraspinal muscle tone on the
right lumbar area. She provided an assessment of acute bilateral low back pain without sciatica

3

OWCP assigned File No. xxxxx102 to the claim. On August 28, 2017 appellant filed a duplicate Form CA-1,
which OWCP assigned File No. xxxxxx509. OWCP eventually combined the two claims, with File No. xxxxxx102
serving as the master file.

2

and MVC. Dr. Stepp released appellant to return to work at modified duty. She also referred him
to physical therapy.
By decision dated September 28, 2017, OWCP accepted that the incident occurred as
alleged, but denied appellant’s claim, finding that he had failed to establish the medical component
of fact of injury.4
LEGAL PRECEDENT
A claimant seeking benefits under FECA5 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.7 The second component is whether the employment incident caused a personal
injury.8 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.9
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.10 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.11 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by

4

Under OWCP File No. xxxxxx509, OWCP issued a decision dated October 10, 2017. However, the Board
acquired jurisdiction over this issue on October 10, 2017. Therefore, the October 10, 2017 decision is null and void.
The Board and OWCP may not have concurrent jurisdiction over the same issue in a case. See Russell E. Lerman, 43
ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990); see also 20 C.F.R. § 501.2(c)(3).
5

Supra note 1.

6

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

John J. Carlone, 41 ECAB 354 (1989).

9

Shirley A. Temple, 48 ECAB 404, 407 (1997).

10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 2006; D’Wayne Avila, 57 ECAB 642 (2006).

11

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

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medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).12
ANALYSIS
The Board finds that the evidence of record is insufficient to establish a medical diagnosis
causally related to the accepted August 19, 2017 employment incident.
The medical evidence submitted by appellant included reports from Dr. Stepp, who
provided a history of the August 19, 2017 injury and examination findings. After noting that the
results of the CT scan of appellant’s cervical spine and x-ray of the lumbar and thoracic spines
showed no acute findings, Dr. Stepp provided an assessment of acute bilateral low back pain
without sciatica and MVC in her August 23, 2017 report. In an August 23, 2017 duty status report
(Form CA-17), she diagnosed pain in thoracic spine for person injured in collision between motor
vehicle and in an August 25, 2017 attending physician’s report (Form CA-20) and in her
September 6 and 8, 2017 reports, she provided an assessment of acute bilateral low back pain
without sciatica and MVC. The Board has consistently held that pain is a symptom and not a
compensable medical diagnosis.13 To establish personal injury the medical evidence of record
must document a diagnosed condition and must explain how that condition is causally related to
the accepted factors of employment. Lacking a firm diagnosis and rationalized medical opinion
regarding causal relationship, Dr. Stepp’s reports are of limited probative value.14
The diagnostic reports are also of diminished probative value. These reports essentially
related normal findings and offered no opinion regarding causal relationship. Therefore, these
reports lacked a firm diagnosis and rationalized medical opinion regarding causal relationship as
well.15
There is no other medical evidence of record which diagnosed a condition from the
August 19, 2017 employment incident. For these reasons, appellant has failed to meet his burden
of proof to establish an August 19, 2017 employment injury and OWCP properly denied his claim.

12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

13

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).

14

See D.S., Docket No. 17-0839 (issued October 12, 2017).

15

Id.; see also C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17,
2009); A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

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On appeal appellant contends that he sustained a work-related back injury based on his
physician’s opinion. For the reasons set forth above, the Board finds that the weight of the medical
evidence failed to establish a back condition causally related to the August 19, 2017 employment
incident.16
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 failed to meet his burden of proof to establish an injury
causally related to the accepted August 19, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 29, 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
16

The Board notes that the employing establishment executed a Form CA-16 on August 21, 2017 authorizing
medical treatment. Where an employing establishment properly executes a Form CA-16 authorizing medical
treatment related to a claim for a work injury, the form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination/treatment regardless of the action taken on the claim. See
Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to
60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cape Girardeau, MO, Employer
__________________________________________

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

Docket No. 14-1763
Issued: January 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 8, 2014 appellant filed a timely appeal from a March 28, 2014 merit decision
and a May 30, 2014 nonmerit 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.
ISSUES
The issues are: (1) whether appellant established a recurrence of medical condition
causally related to the accepted left upper extremity and cervical spine injuries; and, (2) whether
OWCP properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
OWCP accepted that on April 1, 2011 appellant, then a 56-year-old mail processing
clerk, sustained a left shoulder sprain, left shoulder contusion, left elbow sprain, left elbow
1

5 U.S.C. § 8101 et seq.

contusion, a sprain of the left fifth finger, cervicothoracic strain, and a left trapezius strain when
the forklift he was driving malfunctioned and fell against a wall. Appellant did not stop work.
He remained on full duty.
In an April 11, 2011 report, Dr. Thomas Marsh, an attending physician Board-certified in
occupational medicine, noted a history of injury. He opined that appellant could continue
working full duty. In an April 26, 2011 report, Dr. Marsh diagnosed late onset left trapezial
myalgia. He noted that the left shoulder and elbow contusions were significantly improved. In
an April 26, 2011 report, Dr. Marsh diagnosed a cervicobrachial sprain, resolved left shoulder
pain, and left elbow pain. He prescribed physical therapy. Dr. Marsh obtained April 26, 2011
x-rays showing degenerative changes at C3-4 and C6-7, and a C3-4 retrolisthesis with
anteroposterior canal narrowing of uncertain significance.
In a May 16, 2011 report, Dr. Marsh related appellant’s complaints of increased left
shoulder and left-sided neck pain to working overtime. He opined on May 23, 2011 that
appellant could perform full-duty work and did not require additional treatment. On June 21,
2011 appellant presented with complaints of numbness in the left fifth finger. Dr. Marsh opined
that appellant had no objective pathology of the neck or upper extremities on examination. He
noted that appellant was distressed because he wanted additional physical therapy but Dr. Marsh
would not prescribe it.
In a June 28, 2011 report, Dr. Matthew Karshner, an attending Board-certified physiatrist,
diagnosed early cervical degenerative disc disease, possible left biceps tendinitis, possible cubital
tunnel syndrome affecting the left fifth digit, and possible myofascial pain of the left shoulder.
He prescribed physical therapy through October 2011. Dr. Karshner administered trigger point
injections in the left upper trapezius on July 13, 2011. He found that the left biceps tendinitis
improved with physical therapy and that appellant could continue full-duty work. Dr. Karshner
noted on August 3 and 17, 2011 that the accepted conditions had resolved. On September 7,
2011 Dr. Karshner observed that appellant’s subjective symptoms could be reproduced by
nonphysiologic factors. In an October 27, 2011 report, Dr. Karshner diagnosed a “[l]eft shoulder
sprain with myofascial features, nearly completely resolved, with exacerbation due to repeated
left upper extremity activity during fishing” for 8 to 10 hours the previous weekend. He found
that the left elbow contusion had resolved and that the anterior left shoulder contusion had
essentially resolved. Dr. Karshner released appellant from care.
In a November 18, 2011 letter, appellant requested that OWCP authorize additional
physical therapy. He acknowledged that Dr. Karshner had released him from treatment, but
alleged that his condition worsened after physical therapy ended in October 2011.
In an April 19, 2012 letter, OWCP explained that appellant’s case remained open for
medical treatment. It instructed appellant to have his physician contact OWCP if additional
treatment was required. Appellant provided a May 11, 2012 report from Dr. Karshner opining
that the accepted injuries had resolved or essentially resolved. Appellant had attained maximum
medical improvement with regard to the accepted injuries. Dr. Karshner opined that appellant’s
neck symptoms were due to idiopathic degenerative disc disease.

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On October 6, 2013 appellant filed a claim (Form CA-2a) for a recurrence of disability
commencing on an unspecified date. He noted, however, that he was not claiming a recurrence
of disability, but attempting to obtain additional medical treatment. In a November 14, 2013
letter, OWCP advised appellant that to establish the claimed recurrence of disability he must
provide medical evidence supporting a worsening of the accepted injuries without intervening
cause. It afforded him 30 days to submit such evidence.
In an undated statement received on December 9, 2013, appellant reiterated that he did
not wish to claim a recurrence of disability, but only to obtain additional medical treatment.
By decision dated December 11, 2013, OWCP denied appellant’s claim for a recurrence
as causal relationship was not established. It found that he had not submitted medical evidence
establishing a worsening of the accepted injuries. OWCP noted that Dr. Marsh and Dr. Karshner
opined that the accepted injuries had resolved, and that any residual symptoms were due to
idiopathic cervical degenerative disc disease.
In a January 6, 2014 letter, appellant requested reconsideration. He explained that he
sought treatment for his left upper extremity symptoms through the Department of Veterans’
Affairs, then brought test results and chart notes to Dr. Karshner. Appellant alleged that
Dr. Karshner dismissed these reports as he did not want to complete OWCP billing forms.
Appellant submitted chart notes from the Department of Veterans’ Affairs. A
February 12, 2012 cervical computerized tomography (CT) scan showed chronic degenerative
disc disease, most marked at C3-4, C6-7, and C7-T1. Appellant received a left shoulder
injection on July 24, 2013. August 13, 2013 electrodiagnostic testing showed mild left median
and ulnar nerve entrapment. A September 25, 2013 magnetic resonance imaging (MRI) scan
showed degenerative changes in the acromioclavicular joint causing impingement, and a possible
partial tear of the supraspinatus tendon.
By decision dated March 28, 2014, OWCP denied modification of the December 11,
2013 decision finding that the medical record did not support a causal relationship between the
claimed recurrence and the accepted injuries. It noted that Dr. Karshner opined on May 11, 2012
that an MRI scan of appellant’s left shoulder was essentially normal.
In a May 8, 2014 letter, appellant requested reconsideration. He contended that the
April 1, 2011 incident also caused a rotator cuff tear. Appellant alleged that OWCP erred in its
March 28, 2014 decision by referring to an MRI scan obtained by Dr. Karshner, whereas
Dr. Karshner had not ordered an MRI scan. He submitted a duplicate copy of Dr. Karshner’s
May 11, 2012 report.
By decision dated May 30, 2014, OWCP denied reconsideration as it did not contain
new, relevant evidence or legal argument. It found that its reference to an MRI scan in the
March 28, 2014 decision was harmless, nondispositive error.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of a medical condition is defined under OWCP’s implementing federal
regulations as a documented need for further medical treatment after release from treatment for the
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accepted condition or injury when there is no accompanying work stoppage.2 Continuous
treatment for the original condition or injury is not considered a need for further medical treatment
after release from treatment, nor is an examination without treatment.3
A claimant has the burden of establishing that he or she sustained a recurrence of a medical
condition that is causally related to his or her accepted employment injury.4 To meet this burden,
the employee must submit medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, supports that the condition is causally related and supports his
or her conclusion with sound medical rationale.5
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a left shoulder sprain, left shoulder contusion,
left elbow sprain, left elbow contusion, a sprain of the left fifth finger, cervicothoracic strain, and
a left trapezius strain. Dr. Marsh, an attending physician Board-certified in occupational
medicine, opined that the accepted conditions resolved by June 21, 2011. Appellant then sought
treatment from Dr. Karshner, a Board-certified physiatrist, who opined that accepted conditions
had resolved by October 27, 2011 following a course of physical therapy. Dr. Karshner noted
that appellant’s ongoing symptoms appeared nonphysiologic in nature. Appellant then requested
that OWCP authorize additional physical therapy. OWCP responded by April 19, 2012 letter,
explaining that requests for additional treatment must originate with appellant’s physicians.
Appellant filed a recurrence claim on October 6, 2013 seeking medical benefits.
Appellant has the burden of providing sufficient evidence, including rationalized medical
evidence, to establish the causal relationship asserted between the accepted cervical spine and
left upper extremity injuries, and a spontaneous worsening of his condition as claimed.6
However, he did not claim a recurrence of disability. Appellant explained in his claim form and
in a December 9, 2013 letter that he claimed a recurrence in an attempt to obtain additional
medical treatment. Appellant’s physicians did not opine that the accepted injuries had worsened.
Rather, Dr. Marsh and Dr. Karshner both opined that the injuries had resolved, and that any
residual symptoms were due to idiopathic, degenerative disc disease. OWCP therefore denied
the recurrence claim on December 11, 2013.
In support of his January 6, 2014 request for reconsideration, appellant submitted
imaging studies and test results from the Department of Veterans Affairs showing chronic
cervical degenerative disc disease, mild left median and ulnar nerve entrapment, degenerative
changes in the left shoulder, and a possible left supraspinatus tear. However, these test results

2

20 C.F.R. § 10.5(y). See also R.B., Docket No. 13-1663 (issued July 29, 2014).

3

Id.

4

See S.S., Docket No. 14-211 (issued May 1, 2014).

5

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

6

Ricky S. Storms, 52 ECAB 349 (2001).

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were not accompanied by medical opinion supporting a causal relationship between these
findings and the accepted injuries, or that the accepted injuries had spontaneously worsened.
OWCP advised appellant in a November 14, 2013 letter of the type of evidence needed to
establish his claim for a recurrence, including medical evidence addressing how and why the
accepted cervical spine and left upper extremity injuries had worsened. As appellant did not
submit such evidence, OWCP properly issued its March 28, 2014 decision affirming the prior
denial of his recurrence claim.
On appeal, appellant alleged that OWCP failed to properly develop his claim for a
shoulder injury. As set forth above, he failed to meet his burden of proof to establish a
recurrence of a medical condition.
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.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), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.9
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.10 Appellant need only
submit relevant, pertinent evidence not previously considered by OWCP.11 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP 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.12

7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(2).

9

20 C.F.R. § 10.608(b). See also D.E., 59 ECAB 438 (2008).

10

Helen E. Tschantz, 39 ECAB 1382 (1988).

11

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

12

Annette Louise, 54 ECAB 783 (2003).

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ANALYSIS -- ISSUE 2
Appellant requested reconsideration by a May 8, 2014 letter. He argued that OWCP
erred in its March 28, 2014 decision by finding that Dr. Karshner mentioned an MRI scan in his
May 11, 2012 report. Appellant enclosed a duplicate copy of the May 11, 2012 report. OWCP
denied reconsideration by its May 30, 2014 decision, finding that the May 8, 2014 letter did not
contain new, relevant evidence or argument.
The Board finds that OWCP appropriately denied reconsideration as his argument was
not relevant to the claim. The critical issue was the causal relationship of a claimed recurrence
of his medical condition to the accepted injuries. Appellant’s arguments did not address that
issue. Therefore, they do not comprise a basis for reopening the case.13 Also, evidence which is
duplicative or cumulative or repetitive in nature is insufficient to warrant reopening a claim for
merit review.14 The duplicate copy of Dr. Karshner’s May 11, 2012 report is therefore
insufficient to warrant consideration on the merits.
On appeal, appellant asserts that OWCP erred in its March 28, 2014 decision by referring
to an MRI scan. As set forth above, OWCP properly denied reconsideration as this argument
was not relevant to the critical issue of causal relationship in the case.
CONCLUSION
The Board finds that appellant did not establish a recurrence of a medical condition
causally related to accepted cervical spine and left upper extremity injuries. The Board further
finds that OWCP properly denied appellant’s request for reconsideration.

13

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

14

Denis M. Dupor, 51 ECAB 482 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 30 and March 28, 2014 are affirmed.
Issued: January 7, 2015
Washington, DC

Christopher J. Godfrey, Chief 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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