United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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)
)
and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Long Beach, CA, Employer
)
___________________________________________ )
C.F., Appellant

Docket No. 10-1461
Issued: March 18, 2011

Case Submitted on the Record

Appearances:
Appellant, pro se

Office of Solicitor, for the Director

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

JURISDICTION
On May 4, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs decision dated January 14, 2010 which affirmed the termination of his
compensation benefits. Pursuant to 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 the Office properly terminated appellant’s compensation and
medical benefits effective July 20, 2009.
FACTUAL HISTORY
On November 14, 2001 appellant, then a 42-year-old equipment operator, alleged that he
sustained an emotional condition in the performance of duty which he attributed to working with
his manager. He became aware of his condition on September 9, 1989 and realized it was caused
or aggravated by his employment on July 15, 1998. Appellant stopped work on May 17, 2001.

The Office accepted the claim for major depressive disorder, single episode.1 It found that
appellant had established two compensable factors of employment.2 Appellant received
compensation benefits.3
Appellant received treatment from Dr. Arnold P. Nerenberg, a clinical psychologist. In a
July 20, 2006 report, Dr. Nerenberg diagnosed major depression and post-traumatic stress
disorder. He opined that appellant’s work-related injury was present but no longer disabling.
Dr. Nerenberg recommended that appellant return to work in management. On September 14,
2006 he stated that appellant could not work at the same location as a former supervisor and that
it would be preferable if he worked in a semi-autonomous position with minimal supervision and
a minimum of interacting with others. On November 22, 2006 Dr. Nerenberg advised that the
injury was comprised of major depression and post-traumatic stress disorder with concomitant
physiological correlates of extreme hypertension, enlarged heart and the need for root
replacement. While he released appellant to work on July 20, 2006, the employer did not
respond to the request to return to work which caused a severe regression in appellant’s
condition.
In a June 20, 2007 report, Dr. Nerenberg reiterated the diagnosis and that the employer’s
refusal to hire appellant caused regression of his condition with permanent disability. In a
June 20, 2007 work capacity evaluation, he opined that appellant was totally disabled.
Dr. Nerenberg explained that appellant made progress that would allow him to return to work on
July 20, 2006 but because the employer declined to rehire him, his major depression became
disabling. He stated that appellant could not work or participate in vocational rehabilitation due
to his inability to concentrate and extreme fatigue.
On July 6, 2007 the Office referred appellant to Dr. E. Richard Dorsey, a Board-certified
psychiatrist, for a second opinion regarding whether the accepted emotional condition had
resolved. In an August 7, 2007 report, Dr. Dorsey reviewed appellant’s history of injury and
listed findings on examination. Appellant’s thought processes were neutral except for anxiety,
anger and tension when thinking about the employing establishment. He was dissatisfied with
how the employer treated him and his request to return to work. Dr. Dorsey advised that
appellant wanted to return to federal employment and had completed a paralegal course. He
would have been happy to go back to work at the employing establishment at a different location
and for a different supervisor. Dr. Dorsey diagnosed moderately severe major depression that
was in substantial remission and found that appellant no longer had the accepted work-related
major depressive disorder, except when he received communications from the employer.
Appellant was asymptomatic except when reminded of the employer. Dr. Dorsey advised that
1

The Office noted that appellant had a preexisting history of depression. It found that his desire to return to
federal employment and the employing establishment’s unwillingness to rehire him were not compensable factors of
employment. Appellant’s heart condition was found noncompensable.
2

These were that Lalli Allen, a supervisor, commented that appellant was lazy, his muscles did not add up to his
work ability and that his laziness was due to his race. On another occasion, appellant stated that he did not feel good
and Ms. Allen attributed it to his home life and said “oh well” when he stated that it was due to medication.
3

Appellant was referred to vocational rehabilitation on December 17, 2003. He initially received training as a
surgical technician and subsequently began paralegal training.

2

appellant could work as a paralegal or a legal secretary as he reported no mental symptoms or
personal reservations that would interfere with unrestricted employment in those positions. He
advised against appellant working with his former supervisors. Dr. Dorsey opined that appellant
had no medical condition or continuing disability due to the accepted condition.4
On August 30, 2007 the Office proposed to terminate appellant’s compensation based on
the report of Dr. Dorsey.
The Office received a July 27, 2007 report from Dr. Nerenberg, who reiterated that
appellant could not work at the employing establishment and was permanently disabled.
Dr. Nerenberg advised that the employer disregarded earlier medical evidence and unreasonably
demanded that appellant “return to work immediately,” which exacerbated appellant’s condition.
Appellant’s depression had expanded to include chest pains and fears of powerlessness.
Dr. Nerenberg also attributed appellant’s open-heart surgery to his employment.5 On
September 14, 2007 he questioned Dr. Dorsey’s report, contending that appellant was seen for
about 10 minutes and that the psychological testing was invalid. Dr. Nerenberg noted that
appellant was a threat to others and might be suicidal if his benefits were terminated. He
asserted that the employer exacerbated appellant’s condition and caused his heart condition by
sending him a letter advising him to return to work.
The Office found a conflict in medical opinion between Dr. Nerenberg, for appellant and
Dr. Dorsey, for the government. On May 22, 2008 it referred to Dr. Brian P. Jacks, a Boardcertified psychiatrist, for an impartial medical evaluation to resolve the conflict.
In an August 23, 2008 report, Dr. Jacks provided a detailed review of appellant’s history,
noted results of psychological testing and conducted a mental status examination. He advised
that appellant had major depressive disorder, which was partially resolved. Dr. Jacks stated that
appellant was more angry than depressed. He opined that appellant’s disability had ceased and
concurred with Dr. Nerenberg that appellant would be able to return to the employing
establishment in a management position with restrictions. Dr. Jacks added that appellant could
return to work in a management position at the employing establishment from a psychiatric
perspective only. He noted that appellant went through a period of worsened major depressive
disorder and additional disability when the employing establishment refused to rehire him.
Dr. Jacks explained that appellant’s condition continued because it was aggravated by
work-related and nonwork-related events. For example, appellant tried to go to vocational
rehabilitation on two occasions but had open-heart surgery in May 2005. Upon returning to
vocational rehabilitation training, his condition deteriorated when he found out his benefits
would be discontinued after he was trained. Dr. Jacks also noted that appellant’s mother died a
tragic death in 2004. He explained that appellant’s major depressive disorder continued because
he wanted his “day in court.” Dr. Jacks opined that appellant was at maximum improvement but
had continuing major depressive disorder. He explained that appellant should “not work in any
4

In an August 6, 2007 report of psychological testing performed for Dr. Dorsey, Dr. Gale Schuler, a clinical
psychologist, noted that appellant’s profile might be invalid as he left 36 questions unanswered and appeared to be
exaggerating his symptoms. She opined that it was impossible to arrive at a diagnosis for appellant.
5

Dr. Nerenberg noted letters from the employer asking appellant to report for duty or be terminated.

3

jobs, which by their very nature were excessively stressful or working with overly critical,
demanding supervisors. On the other hand, Dr. Jacks had an ability to comprehend and follow
instructions, to do complex tasks, to do simple and repetitive tasks and certainly has the ability to
operate independently.” He also found personal and nonindustrial stressors were present and
included a conflictual relationship with his father, physical abuse, his divorce and the death of
his mother.
On September 23, 2008 the Office requested clarification from Dr. Jacks. It explained
that appellant’s original position was not a management position, but as a mail
handler/equipment operator. The Office asked that Dr. Jacks clarify whether appellant’s current
condition was due to not being rehired by the employer; not completing vocational rehabilitation
training programs; and/or other nonindustrial stressors or whether his current depression was due
to the two compensable employment factors.
On June 24, 2009 Dr. Jacks responded that the original correspondence was lost in his
files. He noted that appellant was no longer angry with Ms. Allen as she had died over 10 years
prior. Dr. Jacks explained that appellant’s current major depressive disorder was due to the
employer’s refusal to rehire him, his inability to complete vocational rehabilitation surgical
technician’s training because of his heart problems, his inability to complete the paralegal
training program because of a letter from the Office proposing to terminate or reduce his benefits
as well as being terminated from the employing establishment, his mother dying in 2004,
financial problems and being out of work. He opined that appellant’s current major depressive
disorder was not caused by the two compensable factors.
By decision dated July 20, 2009, the Office terminated appellant’s compensation benefits,
effective that day, as the weight of the medical evidence established that his injury-related
disability had ceased.
Appellant requested a hearing, which was held on November 5, 2009. He and
Dr. Nerenberg testified at the hearing. Appellant alleged that Dr. Jacks was coerced to change
his opinion. He also alleged that his condition was aggravated by how his claim was handled
and the failed rehabilitation efforts. Appellant questioned the accepted facts and explained that
Ms. Allen was deceased for approximately 10 years and it was Ms. Smith who was the problem.
Dr. Nerenberg testified that he first treated appellant in 2001 or 2002 and acknowledged that
appellant could return to work, after he released him, with no contact by his former supervisor.
He stated that appellant currently had depression and that his relapses stemmed from his
perceptions of injustices and unfair treatment by the employer and the Office.
In a July 30, 2009 letter, appellant asserted that his physician and Dr. Jacks found that his
depression was work related. He submitted copies of tests and reports of record. The Office
received an undated report from Dr. Nerenberg who noted that it was not the first time the Office
challenged the findings of one of its experts. Dr. Nerenberg alleged that the Office’s
clarification letter caused Dr. Jacks to clarify his thinking. He repeated that the refusal to
reemploy appellant and the threat of losing his benefits adversely impacted appellant.
In a November 18, 2009 report, Dr. Nerenberg reiterated that workplace stressors caused
appellant’s condition. He noted that Dr. Jacks supported that the psychiatric condition

4

contributed to appellant’s physical conditions and heart problems. Dr. Nerenberg explained that
each time appellant felt that he was treated unfairly in the administration processes by the
employing establishment or the Office, appellant had a serious regression of his medical
condition. He reiterated that the workplace injury was the original precipitating cause. When
appellant’s disability benefits were terminated, he was unable to pay rent and was forced into a
back room at his ex-wife’s home. Dr. Nerenberg asserted that appellant’s condition was
exacerbated when a rehabilitation counselor informed him that the employer would not reemploy
him. He noted that Dr. Jacks agreed that appellant could return to work at the employing
establishment in a management position with restrictions.
By decision dated January 14, 2010, the Office hearing representative affirmed the
July 20, 2009 decision.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.7 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.8 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.9
The Federal Employees’ Compensation Act10 provides that if there is disagreement
between the physician making the examination for the Office and the employee’s physician, the
Office shall appoint a third physician who shall make an examination.11 In cases where the
Office has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.12
ANALYSIS
The Office determined that a conflict in medical opinion arose regarding the resolution of
appellant’s accepted condition and work restrictions based on the opinion of Dr. Nerenberg, a
6

Curtis Hall, 45 ECAB 316 (1994).

7

Jason C. Armstrong, 40 ECAB 907 (1989).

8

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

9

Calvin S. Mays, 39 ECAB 993 (1988).

10

5 U.S.C. §§ 8101-8193, 8123(a).

11

Id. at § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

12

Gloria J. Godfrey, 52 ECAB 486 (2001); Gary R. Sieber, 46 ECAB 215, 225 (1994).

5

clinical psychologist, and Dr. Dorsey, a Board-certified psychiatrist and second opinion
physician.13 It properly referred appellant to an impartial medical examiner, Dr. Jacks, a Boardcertified psychiatrist.
The Board finds that Dr. Jacks’ August 23, 2008 and June 24, 2009 reports are
sufficiently well rationalized and based upon a proper factual background such that they are
entitled to special weight in establishing that residuals of appellant’s employment injury had
ceased. Dr. Jacks provided an extensive review of appellant’s medical history, reviewed
psychological testing and conducted a mental status examination. He advised that appellant
continued to have major depressive disorder, which was partially resolved. Dr. Jacks explained
that appellant’s disability had ceased and stated that appellant would be able to return to the
employing establishment in a management position from a psychiatric perspective. He explained
that appellant went through a period of worsened major depressive disorder and additional
disability when the employing establishment refused to rehire him. Dr. Jacks noted that
appellant had stress from matters relating to his claim, such as vocational rehabilitation and
benefits reduction in addition to personal matters. He advised that appellant should “not work in
any jobs, which by their very nature were excessively stressful or working with overly critical,
demanding supervisors.”
On September 23, 2008 the Office requested that Dr. Jacks clarify his opinion to address
whether appellant’s current depression was due to his not being rehired by the postal service;
incompletion of vocational rehabilitation training programs; and/or nonindustrial stressors or
whether his current depression was due to the two compensable factors.
In a June 24, 2009 supplemental report, Dr. Jacks noted that appellant’s current major
depression was not caused by the two compensable employment factors. He noted that appellant
was no longer angry with Ms. Allen as she had died over 10 years ago. Dr. Jacks explained that
appellant’s current major depressive disorder was caused by the employing establishment’s
refusal to rehire him, his inability to complete vocational rehabilitation training because of his
heart problems and out of concern that his benefits could be reduced, his mother’s death and
financial problems and being out of work. In these circumstances, the Office properly accorded
special weight to the impartial medical examiner’s August 23, 2008 and June 24, 2009 findings.
When an impartial medical specialist is asked to resolve a conflict in medical evidence,
his opinion, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.14 The Board finds that Dr. Jack’s reports represent the weight of the
medical evidence and establish that there were no ongoing objective findings of residuals of the
accepted condition.
The Office received testimony and additional reports from Dr. Nerenberg, who reiterated
previously stated findings and conclusions regarding appellant’s condition. Dr. Nerenberg also
13

As noted, appellant’s physician, found that appellant was totally disabled and that his disability was due to the
employment injury, while Dr. Dorsey, the second opinion physician, indicated that appellant no longer had any
residuals of the accepted work injury and could return to work provided he not work with Ms. Allen or Ms. Smith.
14

See supra note 12.

6

questioned the Office’s need for clarification of his report and suggested that Dr. Jacks concurred
with his findings. However, the Board notes that Dr. Jacks merely agreed that appellant could
return to work with the restrictions provided in the September 14, 2006 report of Dr. Nerenberg.
The Board also notes that Dr. Nerenberg attributed appellant’s relapses to his perceptions of
injustice and unfair treatment by the employing establishment and the Office, his frustration from
being able to return to work at the employing establishment and his termination of benefits. The
Board notes that these were not accepted or compensable factors of appellant’s employment.15
When the Office sought clarification from Dr. Jacks, he unequivocally opined that appellant’s
continued condition was not causally related to the accepted compensable employment factors.
Regarding appellant’s allegations pertaining to the termination of his benefits, the Board notes
that to such matters would not arise in the performance of duty as the processing of
compensation claims bears no relation to his day-to-day or specially assigned duties.16 As the
physician had been on one side of the conflict in the medical opinion that the impartial specialist
resolved, the treating physician’s reports failed to provide new relevant information or a
rationalized analysis and were insufficient to overcome the special weight accorded the impartial
specialist.17 The additional reports from Dr. Nerenberg do not contain any new information or
rationale sufficient to overcome or create a new conflict with the opinion of Dr. Jacks.
Other reports submitted to the Office, including copies of previous second opinion
examinations from 2002 do not offer any opinion regarding whether appellant continued to have
residuals of the accepted condition at the time benefits were terminated effective July 20, 2009.
On appeal, appellant essentially repeated arguments made through out his claim. They
included that the Office did not need to request clarification from Dr. Jacks as his earlier report
supported his claim. This argument lacks merit. In the initial report, Dr. Jacks did not clearly
address whether appellant’s continued condition was caused or aggravated by the accepted
employment factors.18 The Board has held that, when the Office obtains an opinion from an
impartial medical specialist for the purpose of resolving a conflict in the medical evidence and
the specialist’s opinion requires clarification or elaboration, the Office must secure a
supplemental report from the specialist to correct the defect in his original report.19 The Office
acted properly in securing a supplemental report. Appellant also alleged that his frustration from
not completing his Office sponsored paralegal training was compensable. As noted, matters
related to the development of a compensation claim are not compensable.20 Additionally,
15

See Michael Thomas Plante, 44 ECAB 510, 515 (1993) (an employee’s dissatisfaction with perceived poor
management constitutes frustration from not being permitted to work in a particular environment or to hold a
particular position and is not compensable under the Act).
16

See George A. Ross, 43 ECAB 346, 353 (1991); Virgil M. Hilton, 37 ECAB 806, 811 (1986).

17

Alice J. Tysinger, 51 ECAB 638 (2000); Barbara J. Warren, 51 ECAB 413 (2000).

18

See Lillian Cutler, 28 ECAB 125 (1976) (workers’ compensation law does not apply to each and every injury
or illness that is somehow related to one’s employment).
19

Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 ECAB 1071, 1078 (1979); see also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810(11)(c)(1)-(2)
(April 1993).
20

See supra note 16.

7

appellant made allegations about the statement of accepted facts and alleged that leading
questions were submitted to the impartial medical examiner. However, the record contains no
evidence showing that the statement of accepted facts is in error and the Board finds the
questions posed were not leading, as they did not suggest an answer to the question posed.21
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
compensation benefits effective July 20, 2009.
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2011
Washington, DC

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

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

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

21

Appellant submitted additional evidence with his appeal to the Board. The Board cannot consider this
evidence, however, as its review of the case is limited to the evidence of record which was before the Office at the
time of its final decision. 20 C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Knoxville, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1714
Issued: July 1, 2016

Case Submitted on the Record

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

JURISDICTION
On August 17, 2015 appellant filed a timely appeal from a June 10, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of total
disability on April 7, 2014, caused by a May 31, 1989 employment injury.

1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R.
§ 501.5(b). By order dated February 19, 2016, the Board exercised its discretion and denied the request, finding that
the arguments on appeal could adequately be addressed based on the case record. Order Denying Request For Oral
Argument, Docket No. 15-1714 (issued February 19, 2016).

On appeal appellant asserts that she was forced to work outside the restrictions provided
by her physicians and was scheduled to work outside agreed hours.
FACTUAL HISTORY
On May 31, 1989 appellant, then a 30-year-old rural carrier, was injured lifting a bundle
of mail. The claim was initially accepted for herniated disc at C5-6. Appellant had cervical
surgery on August 4, 1989. She received wage-loss compensation and returned to limited duty
for four hours a day on February 5, 1990, and then to full-time work. A May 29, 1991
rehabilitation job offer, accepted by appellant that day, described general clerical duties of
typing, filing, copying, data input, answering telephones, and assisting customers with problems.
Sitting, standing, walking, kneeling, bending, stooping, twisting, and simple grasping were listed
as intermittently, up to eight hours per day, with no climbing or reaching above the shoulder.
The claim was expanded to include prolonged depressive reaction due to the accepted
factors. In two decisions dated September 24, 1990, OWCP denied appellant’s claim for
additional compensation, and found that her light-duty employment fairly and reasonably
represented her wage-earning capacity.3 A recurrent herniated cervical disc was accepted, and
on February 14, 1992 appellant had additional cervical surgery.4 After rehabilitation, in 1997
appellant worked as an injury compensation specialist at the employing establishment.5 She also
had gastric bypass surgery in 1997.
Appellant filed a recurrence claim (Form CA-2a) on April 8, 2014, alleging total
disability as of April 7, 2014. Appellant stated that the employing establishment kept changing
her work schedule and asked her to work outside her restrictions. She further noted that she
injured her back and was off three weeks, and when she returned they started “messing” with
her. The employing establishment noted that it accommodated appellant for years and then she
was totally off work for about 10 years. On March 3, 2014 appellant injured her back in the
performance of duty and was off work until March 31, 2014. She returned to work on March 31
and April 1, 2014 for four hours each day.6 Appellant thereafter stopped work.
In letters dated April 9 and 11, 2014, OWCP notified appellant of the evidence needed to
develop her recurrence claim.7
3

Appellant filed claims for an additional 8 hours weekly, stating that prior to the injury she worked 48 hours a
week.
4

The record is devoid of medical evidence from June 7, 1991 to April 16, 2002.

5

The record indicates that on September 18, 1996 OWCP denied appellant’s claim for compensation for the
period March 4 to April 23, 1996, and in decisions dated October 29, 1996 and September 17, 1997 affirmed the
denial. The record does not indicate whether appellant’s rehabilitation position was full or part time.
6

The March 3, 2014 injury was adjudicated in a separate claim and accepted for lumbar sprain.

7

OWCP listed the accepted conditions as sprain of back, lumbar region; displacement of cervical intervertebral
disc without myelopathy; prolonged depressive reaction; sprain of shoulder and upper arm, acromioclavicular, right;
postlaminectomy syndrome, cervical region; and brachial neuritis or radiculitis, not otherwise specified. Appellant
also submitted a CA-7, claim for compensation, for the period April 8 through May 5, 2014.

2

In an April 15, 2014 statement, appellant related that since returning to work her stress
and pain increased significantly. She stated that she had to throw parcels and load mail, and
these repetitive activities had caused great pain which caused emotional stress. Appellant related
that on March 3, 2014 she injured her back when she lifted a tub of flats. She maintained that
her work injury consumed her life, restricted her activities of daily living, and made her suicidal.
By decision dated May 12, 2014, OWCP denied the recurrence claim for resumption of
total disability compensation because she reported new stressors that were considered
intervening factors and not related to the May 31, 1989 employment injury. Appellant continued
to receive medical benefits and partial wage-loss compensation.
On September 5, 2014, January 5 and April 22, 2015 appellant requested reconsideration.
In support of her reconsideration requests, she submitted additional medical evidence. On a
March 4, 2014 Turkey Creek Medical Center emergency department discharge summary,
Dr. Roger Millwood, Board-certified in emergency medicine, noted that appellant was seen for
back pain. He diagnosed myofascial lumbar strain. A thoracic spine x-ray that day
demonstrated scoliosis with minimal degenerative change. Turkey Creek Medical Center
records show that appellant was admitted on March 17, 2014 for complaints of a one-month
history of increasing epigastric pain, and that she began vomiting blood on the day of admission.
The admission history and physical noted appellant’s past medical and surgical history.
Dr. Harold Steven Silver, Board-certified in internal medicine and gastroenterology, performed
an endoscopy on March 17, 2014. He diagnosed esophagitis, status post gastric bypass, gastritis,
and anastomotic ulcer times two. Appellant was seen by Dr. Steve W. Reed, Board-certified in
internal medicine and cardiology, who noted a history of syncope for several years. Dr. Reed
ordered more tests. Dr. David W. Brandes, a Board-certified neurologist, saw appellant for
complaints of headaches and syncope. He reported a long history of neck and right shoulder
pain, described her prior surgeries and findings. Dr. Brandes diagnosed cervicogenic headaches,
episodic hypotension and syncope of undetermined original, treated hypertension, chronic right
arm/shoulder pain syndrome, acute gastrointestinal bleed, and depression. Appellant was
discharged on March 20, 2014 with diagnoses of syncope secondary to orthostasis secondary to
blood loss anemia, blood loss anemia secondary to acute anastomotic ulcers, candida esophagitis,
and severe headache, myogenic, cervicogenic.
Appellant was seen by Dr. Donald Jones, a Board-certified anesthesiologist, on April 21,
2014 for pain management. Dr. Jones did not mention the recent hospitalization.
Hospital records from Physicians Regional Medical Center indicated that appellant was
admitted on April 22, 2014. Dr. Sharon R. Burnside, a Board-certified psychiatrist, noted that
appellant had long-standing depression and was admitted for crisis management due to severe
hopelessness, worsening chronic pain, and an abscessed tooth. She related appellant’s report that
she was trying to work 12 hours a week, but continued to be asked by other employees to work
outside her restrictions, and that she recently became suicidal when she had to have an abscessed
tooth pulled. Dr. Burnside also noted that appellant had regained most of the weight she had lost
following gastric bypass, and had syncopal episodes with falls. Appellant was discharged on
April 25, 2014 with diagnoses of major depression, recurrent, severe, without psychotic features,
syncopal episodes, anemia with blood loss recently from an anastomotic ulcer, chronic
headaches with cervical spine disease, and prior gastric bypass.

3

On May 8, 2014 Dr. Kelley D. Walker, a Board-certified psychiatrist, noted the recent
hospitalization and appellant’s report that it was “more for detox, not suicide.” She found that
appellant was unable to work. In a May 21, 2014 treatment note, Dr. Jones noted appellant’s
report that she recently passed out, fell, and was told she had fractured three ribs. He again did
not mention the April hospitalization.
Dr. Silver saw appellant in follow-up on May 22, 2014. He noted appellant’s report of no
further nausea, vomiting, severe abdominal pain, and no evidence of gastrointestinal bleeding. A
June 2, 2014 endoscopic examination demonstrated status post gastric bypass with three
anastotic and post-anastomotic ulcers.
On May 25, 2014 Dr. Millwood reported that appellant was seen in the emergency
department for a chest contusion due to a fall at home. A chest x-ray demonstrated old right rib
fractures and a tiny amount of pleural fluid. Appellant was discharged that day.
In reports dated May 29 to June 11 2014, Dr. Walker noted a history that appellant had
recently fallen and broken ribs. She reported that appellant was being treated by Dr. Robert
Dowell for chronic pain.8 Dr. Walker opined that appellant’s emotional condition was directly
related to her chronic pain caused by the May 31, 1989 work injury. She noted, “I expect
[appellant’s] condition to continue to affect her ability to work in any occupation.” On June 11,
2014 Dr. Walker also noted that appellant reported that she was passing out almost daily and felt
suicidal.
In a June 16, 2014 discharge summary, Dr. J. Joseph Kennedy, a Board-certified
psychiatrist, noted appellant’s admission to Physicians Regional Medical Center on June 13,
2014 for depression which was worsened by pain and suicidal thinking. He diagnosed major
depression, recurrent, much improved, anxiety disorder, not otherwise specified, dependent
traits, headaches, family issues, chronic depression, and medical issues.
Appellant was next admitted to Physicians Regional Medical Center on June 24, 2014 for
major depression with suicidal ideation. Dr. Kennedy described appellant’s report that there was
ongoing family stress because relatives were living with them and that her son wanted her pain
medication. This caused an altercation between him and her husband, his stepfather. Appellant
related that she then began cutting her wrists, and then went to stay with her parents. She was
seen in consultation by Dr. Zakir Hai, a Board-certified internist for hypotension and syncope
which he advised was multifactorial, likely related to changes in medication. A brain
computerized tomography (CT) scan on June 30, 2014 was normal. Appellant was discharged
on July 1, 2014. At that time Dr. Kennedy reported that appellant’s depression was much
improved.
Dr. Jones continued to provide pain management on a monthly basis. On August 7, 2014
Dr. Walker reported that any little thing triggered panic attacks, and that she had two to three
episodes of suicidal feelings.

8

There are no reports in the record from a Dr. Robert Dowell.

4

Appellant was again admitted to Physicians Regional Medical Center on
September 5, 2014. She sought, by Dr. Ashok Shandari, Board-certified in internal medicine,
clearance to begin electroconvulsive therapy (ECT). In a September 10, 2014 discharge
summary, Dr. Burnside reported that appellant was seen by Dr. Kenneth Jobson, a Boardcertified psychiatrist, who recommended ECT. Appellant had two ECT treatments while
hospitalized and was to continue the treatment as an outpatient.9
In reports dated September 20 and October 21, 2014, Dr. Walker noted that appellant had
completed five ECT treatments, but that she still had suicidal thoughts. In November 18, 2014 to
February 18, 2015 reports, Dr. Walker noted appellant’s continued ECT treatment with
Dr. Burnside, advising that it seemed to help her depression. On March 3, 2015 Dr. Walker
advised that the ECT treatment had helped with appellant’s depression. She related that,
although appellant attempted to return to work, she continued to have increased pain relating to
the initial injury and increased severe mood swings with suicidal ideations, and was unable to
continue to work even with limited duties. Dr. Walker opined that appellant’s emotional
condition was directly related to her chronic pain caused by the May 31, 1989 cervical injury
and, due to the nature of her illness, it would continue to affect her ability to work in any
occupation. On April 15, 2015 she reported that appellant was again depressed and had conflicts
with family members.
In correspondence dated May 8, 2015, OWCP asked Dr. Walker to explain the cause of
appellant’s claimed disability beginning April 7, 2014. Dr. Walker was specifically asked to
detail what work aspects appellant was unable to perform due to her psychological condition.
Dr. Walker, in a May 14, 2015 note, indicated that the ECT treatments were helping
appellant feel better although she still had bad days with increased pain and depression. She also
noted that appellant broke her right toe when she lifted her grandson. In response to OWCP’s
inquiry, on June 1, 2015 Dr. Walker advised that appellant was unable to sustain gainful
employment due at least in part to the 1989 work injury. She concluded that records from her
office alone showed a woman suffering multiple medical and personal issues who repeatedly
reported difficulty maintaining a schedule, poor ability to perform a job in a safe and efficient
manner, plus the constant stress of dealing with her compensation claim.10
In a June 10, 2015 merit decision, OWCP denied modification of the May 12, 2014
denial of her recurrence claim. It found that appellant had not established that the claimed
recurrence, beginning April 7, 2014, was causally related to the 1989 work injury or that her
light duty had been withdrawn. OWCP noted that she had filed a claim for a new employment
injury under a separate file number on March 3, 2014,11 and that when she claimed recurrence
9

Appellant was next admitted to Physicians Regional Medical Center on October 26, 2014 for syncope and an
extensive deep venous thrombosis. An echocardiogram on October 27, 2014 demonstrated normal left ventricular
function and trace mitral and tricuspid regurgitation. Appellant was discharged on October 29, 2014.
10

By decision dated June 8, 2015, OWCP found appellant not at fault in creating a $3,613.21 overpayment of
compensation. The overpayment was created because health benefit premiums were not deducted from April 19,
2014 to April 4, 2015. As OWCP found appellant not at fault, it therefore denied waiver of recovery of the
overpayment. This issue is not currently before the Board.
11

The March 3, 2014 injury was adjudicated in a separate claim and accepted for lumbar sprain.

5

under the instant claim she alleged that management had changed her work schedule and she was
asked to work beyond her restrictions. It advised appellant that she could alternatively file a new
occupational disease claim.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.12 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to her work-related
injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.13
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative, and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.14
An individual who claims a recurrence of disability resulting from an accepted work
injury has the burden to establish that the disability is related to the accepted injury. This burden
requires furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence
of disability on April 7, 2014, caused by the May 31, 1989 employment injury. The accepted
conditions are cervical strain, herniated disc at C5-6, prolonged depressive reaction to accepted
factors, recurrence of herniated disc, lumbar sprain, right acromioclavicular joint sprain,
postlaminectomy syndrome, cervical region, and brachial radiculitis.
After the 1989 work injury, appellant returned to work in 1997 in a rehabilitation position
as an injury compensation specialist. She continued in that position until September 26, 2003
when she stopped work and was placed on the periodic compensation rolls. On August 20, 2013
12

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

13

Id.

14

Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
15

S.S., 59 ECAB 315 (2008).

6

appellant telephoned OWCP, reporting that she would be returning to work. On August 23, 2013
she advised that she had accepted a modified clerk position. The job offer provided a schedule
of 3:00 p.m. to 7:00 p.m. on Wednesday, Thursday, and Friday, with duties of checking in
carriers for 2.5 hours daily, preparing dispatch for 30 minutes daily, and accepting and separating
shipments. Lifting was limited to 10 pounds. Appellant returned to this position on August 28,
2013, and continued to receive partial wage-loss compensation for 28 hours per week.
On April 8, 2014 appellant claimed a recurrence of disability on April 7, 2014. She
asserted that the employing establishment kept changing her work schedule and asked her to
work outside her restrictions. Appellant also indicated that she had injured her back and was off
three weeks and that, when she returned, the employing establishment started “messing” with
her. In an April 15, 2014 statement, she related that, since returning to work, her stress and pain
had increased significantly. Appellant maintained that she had to throw parcels and load mail,
and that these repetitive activities caused great pain which caused emotional stress. She
described a March 3, 2014 employment back injury, adjudicated separately by OWCP, which
had been accepted for lumbar sprain.16 Appellant maintained that the work injury had consumed
her life, restricted her activities of daily living, and made her suicidal several times. The
employing establishment indicated that, following the March 3, 2014 back injury, she was off
work until March 31, 2014, and had worked only March 31 and April 1, 2014 for four hours each
day.
There is no evidence of record to support that appellant was disabled from performing the
modified duties from an orthopedic standpoint due to the accepted conditions. While Dr. Jones
provided pain management, he did not comment on her ability to work. An August 16, 2013
functional capacity evaluation (FCE) demonstrated that appellant could perform sedentary work
with lifting limited to 5 pounds frequently and 15 pounds occasionally.
As to appellant’s allegations of working outside her restrictions, she submitted no
evidence, such as a witness statement, to verify this contention. Appellant submitted no
evidence to show that her schedule had been frequently changed, as alleged, such as a
time/analysis report. There is, therefore, insufficient evidence to demonstrate that she was not
provided appropriate light-duty work. Likewise, she was nonspecific in her assertion that she
was being “messed with” at the employing establishment, and reported to Dr. Walker only that
her new boss “picked on her.” A claimant must establish a factual basis for his or her allegations
with probative and reliable evidence.17 Appellant did not do so in this case.
The medical evidence contemporaneous with the claimed April 2014 recurrence includes
a March 4, 2014 emergency room report in which Dr. Millwood diagnosed myofascial lumbar
strain. On March 13, 2014 Dr. Walker noted that appellant injured her back at work and was
told by a physician not to return to work until at least March 26, 2014. Evidence shows that
appellant was hospitalized on March 17, 2014, when she was vomiting blood, and was
discharged on March 20, 2014. Dr. Silver diagnosed esophagitis, status post gastric bypass,
gastritis, and anastomotic ulcer times two. Discharge diagnoses were syncope secondary to
16

Supra note 11.

17

James E. Norris, 52 ECAB 93 (2000).

7

orthostasis secondary to blood loss anemia; blood loss anemia secondary to acute anastomotic
ulcers; candida esophagitis; and severe headache. On March 21, 2014 Dr. Jones reported that
appellant was recently hospitalized with pneumonia.
On April 7, 2014 Dr. Walker indicated that appellant worked Tuesday and Wednesday
the previous week, but took Thursday off for a family member’s surgery. Appellant reported
that she was a “basket case” because her work schedule had been changed three times and this
made her suicidal and depressed because she needed to work three days in a row. Dr. Walker
also noted that three weeks earlier appellant injured her back at work, and that a new boss picked
on her. She found appellant unable to work due to her major depression. On June 1, 2015
Dr. Walker advised that appellant was unable to work due at least in part to the 1989 work
injury. She opined that appellant was a woman suffering multiple medical and personal issues
who repeatedly reported difficulty maintaining a schedule, poor ability to perform a job in a safe
and efficient manner, plus the constant stress of dealing with her compensation claim.
Dr. Walker merely alluded to stress at work and did not discuss any specific job duties or
sufficiently explain why appellant could not work her modified part-time position. She did not
explain from a medical perspective the nature of the relationship between the accepted
depression and the job duties appellant was performing at the time of the claimed recurrence.
Dr. Burnside merely noted that appellant reported that she was forced to work outside her
restrictions. She also reported that appellant had an abscessed tooth, that she had regained most
of the weight she had lost following gastric bypass, and that she had syncopal episodes with falls.
Dr. Burnside did not explain how appellant had a spontaneous change in her accepted conditions
causing total disability. Dr. Kennedy reported that appellant’s depression was worsened by pain
and that she had suicidal thinking. He also reported that appellant had ongoing family stress.
Dr. Kennedy provided no opinion regarding appellant’s work abilities. While the evidence
supports that appellant had four psychiatric hospitalizations in 2014, none of the associated
medical reports include a specific explanation that she could no longer work 12 hours of
modified duty weekly beginning April 2014 because of her accepted employment-related
conditions.
At the time of the claimed disability, appellant had been hospitalized for a nonworkrelated condition, problems resulting from a gastric bypass. The employing establishment
thought she was off work due to a March 3, 2014 back injury. Neither Dr. Walker nor Dr. Jones
reported awareness of this serious medical hospitalization. Moreover, neither exhibited any
knowledge of appellant’s part-time modified duties. No physician has provided a rationalized
medical report explaining how a spontaneous change in the accepted conditions caused total
disability.18 The need for rationale is particularly important since the contemporaneous medical
evidence indicates that appellant was also treated for many nonemployment-related conditions
around the time of her claimed recurrence of disability.
As noted an individual who claims a recurrence of disability has the burden of proof to
establish that the disability is related to the accepted injury. This requires furnishing medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
18

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

8

history, concludes that the disabling condition is causally related to the employment injury and
who supports that conclusion with sound medical reasoning.19 The Board finds insufficient
medical evidence in this case. Consequently, appellant has not met her burden of proof to
establish that her claimed April 2014 recurrence of total disability was a result of the accepted
conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of total disability on April 7, 2014, caused by a May 31, 1989 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

19

Supra note 15.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, San Francisco, CA,
Employer
__________________________________________

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

Docket No. 20-0481
Issued: September 7, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 26, 2019 appellant filed a timely appeal from an August 14, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $18,432.73, for the period December 1, 2016
through June 22, 2019, as he concurrently received Social Security Administration (SSA) agerelated retirement benefits and FECA compensation, without an appropriate offset; (2) whether
OWCP properly determined that appellant was at fault in the creation of the overpayment, thereby
precluding waiver of recovery of the overpayment; and (3) whether OWCP properly required

1

5 U.S.C. § 8101 et seq.

recovery of the overpayment by deducting $611.00 every 28 days from appellant’s continuing
compensation payments.
FACTUAL HISTORY
On May 26, 1994 appellant, then a 42-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on that date he injured his right knee and leg when he slipped on spilled
coffee and fell, landing on his right knee while in the performance of duty. 2 On October 31, 1995
OWCP accepted appellant’s May 26, 1994 claim for right knee contusion under OWCP File No.
xxxxxx787. It subsequently expanded its acceptance of the claim to include tear of the medial
meniscus of the right knee and resulting arthroscopic surgery.
Appellant stopped work on September 19, 1996. On June 16, 1997 OWCP informed him
that he would receive wage-loss compensation on the periodic rolls beginning May 25, 1997.
On December 3, 2013 OWCP notified appellant that FECA required that his continuing
compensation benefits be reduced if he began receiving SSA retirement benefits based on his age
and federal service. It further noted that failure to report receipt of such retirement benefits to
OWCP could result in an overpayment of compensation. OWCP directed appellant to contact it
immediately if he was receiving or had been approved to receive SSA retirement benefits.
On February 10, 2014 appellant elected to receive FECA benefits rather than Office of
Personnel Management (OPM) retirement benefits, effective January 12, 2014.
On June 13, 2019 OWCP received from SSA a Federal Employees Retirement System
(FERS)/(SSA) dual benefits calculation form which reported that appellant had been in receipt of
SSA age-related retirement benefits since December 2016. SSA listed appellant’s SSA benefit
rates with and without FERS for periods beginning December 2016, December 2017, and
December 2018. Beginning December 2016, appellant’s monthly rate with FERS was $1,136.40
and without FERS was $548.60. Beginning December 2017 appellant’s monthly rate with FERS
was $1,159.10 and without FERS was $559.50 per month. Beginning December 2018 appellant’s
monthly SSA rate with FERS was $1,191.40 and without FERS was $575.10.
In a July 11, 2019 letter, OWCP informed appellant that based on the information provided
by SSA regarding the amount of his age-related retirement benefits, which were attributable to
Federal service, his FECA wage-loss compensation had been adjusted. It indicated that his gross
FECA benefits of $2,960.00 would be offset by his SSA benefit attributable to Federal service in
the amount of $616.30 to $2,243.70 every 28 days.

2

OWCP assigned the claim OWCP File No. xxxxxx787. On June 15, 1994 appellant filed another Form CA-1
alleging that on that date he slipped on a grape and fell onto his right leg and side while in the performance of duty.
OWCP assigned that claim OWCP File No. xxxxxx273 and accepted it for right knee contusion. On July 26, 1996
appellant filed a Form CA-1 alleging that on June 26, 1996 he developed discomfort in the right side of his neck and
shoulder due to prepping an e-mail while in the performance of duty. OWCP assigned that claim OWCP File No.
xxxxxx756 and accepted it for rotator cuff tendinitis under OWCP File No. xxxxxx756. Appellant’s claims in File
Nos. xxxxxx787, xxxxxx756, and xxxxxx273.

2

On July 15, 2019 OWCP issued a preliminary overpayment determination finding that
appellant had received an overpayment of compensation in the amount of $18,432.73 because it
failed to reduce his FECA wage-loss compensation benefits for the period December 1, 2016
through June 22, 2019 to offset his SSA age-related benefits that were attributable to federal
service. It explained that it had calculated the overpayment of compensation by determining the
difference between the SSA amount with and without FERS for each period, and then multiplying
that amount by the number of days in each period. The FERS offset calculation worksheet
indicated that OWCP had utilized a 28-day FERS offset amount of $542.58 from December 1,
2016 through November 30, 2017, $553.48 from December 1, 2017 through November 20, 2018,
and $616.30 from December 1, 2018 through June 22, 2019. Using these figures, it calculated that
the total overpayment amount was $18,432.73. The FERS also determined that appellant was at
fault in the creation of the overpayment, as he failed to provide evidence that he knew or should
have known was material. OWCP requested that he complete an enclosed overpayment recovery
questionnaire (Form OWCP-20) and submit supporting financial documentation. Additionally, it
notified appellant that within 30 days of the date of the letter he could request a final decision
based on the written record or request a prerecoupment hearing. Appellant did not respond to the
preliminary decision.
In a July 15, 2019 letter, appellant elected to receive OPM retirement benefits effective
October 1, 2019. He requested that his FECA benefits end on September 30, 2019.
By decision dated August 14, 2019, OWCP finalized the July 15, 2019 preliminary
overpayment determination. It found that appellant had received an overpayment of compensation
in the amount of $18,432.73 for the period December 1, 2016 through June 22, 2019, for which he
was at fault. OWCP required recovery of the overpayment by deducting $611.00 or 25 percent of
his net periodic rolls compensation every 28 days beginning September 15, 2019.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 4
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service. 5 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5
20 C.F.R. § 10.421(d); T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).

3

federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit. 6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $18,432.73 for the period December 1, 2016 through June 22,
2019 because he concurrently received FECA wage-loss compensation and SSA age-related
retirement benefits, without an appropriate offset.
The evidence of record indicates that, while appellant was receiving wage-loss
compensation benefits under FECA, he was concurrently receiving SSA age-related retirement
benefits based upon his federal service. A claimant cannot receive both FECA compensation for
wage loss and SSA age-related retirement benefits attributable to federal service for the same
period.7 The information provided by SSA indicated that appellant received age-related SSA
retirement benefits that were attributable to federal service during the period December 1, 2016
through June 22, 2019. Consequently, the fact of overpayment has been established. 8
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of age-related SSA retirement benefits that were attributable to
federal service. The SSA provided their rate with FERS, and without FERS for specific periods
commencing December 1, 2016 through June 22, 2019. OWCP provided its calculations for each
relevant period based on a FERS offset calculation worksheet and in its July 15, 2019 preliminary
overpayment determination. No contrary evidence was provided by appellant.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period December 1, 2016 through June 22, 2019 and finds that an overpayment of compensation
in the amount of $18,432.73 was created.9
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that an overpayment of compensation shall be
recovered by OWCP unless incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of FECA or be against equity and good

6

FECA Bulletin No. 97-09 (February 3, 1997); N.B., Docket No. 18-0795 (issued January 4, 2019).

7

5 U.S.C. § 8116(d)(2); L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued
May 17, 2019).
8

P.B., Docket No. 20-0862 (issued November 25, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020);
A.F., Docket No. 19-0054 (issued June 12, 2019).
9

L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

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conscience.10 No waiver of payment is possible if appellant is at fault in helping to create the
overpayment.11
Section 10.433(a) of OWCP’s regulations provides that OWCP:
“[M]ay consider waiving an overpayment of compensation only if the individual to
whom it was made was not at fault in accepting or creating the overpayment. Each
recipient of compensation benefits is responsible for taking all reasonable measures
to ensure that payments he or she receives from OWCP are proper. The recipient
must show good faith and exercise a high degree of care in reporting events which
may affect entitlement to or the amount of benefits. A recipient who has done any
of the following will be found to be at fault in creating an overpayment -Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
Failed to provide information which he or she knew or should have known
to be material; or
Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”12
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid. 13
When a claimant receives benefits from the SSA as part of an annuity under FERS
concurrently with disability/wage-loss compensation, the claimant should be found without fault
unless there is evidence on file that the claimant was aware that the receipt of full SSA benefits
concurrent with disability/wage-loss compensation was prohibited. 14
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly found appellant at fault in the creation of the
overpayment for the period December 1, 2016 through June 22, 2019.

10

5 U.S.C. § 8129; A.S., Docket No. 17-0606 (issued December 21, 2017).

11

J.B., Docket No. 19-1244 (issued December 20, 2019); Robert W. O Brien, 36 ECAB 541, 547 (1985).

12

20 C.F.R. § 10.433(a) and § 10.430; C.Y., Docket No. 18-0263 (issued September 14, 2018).

13

Id. at § 10.433(b); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an
Overpayment, Chapter 6.300.4(d) (September 2018).
14

Id.

5

The Federal (FECA) Procedure Manual identifies that, regarding an SSA dual benefits
scenario, where the claimant receives SSA benefits as part of an annuity under FECA, which
results in an overpayment, the claimant should be found not at fault unless there is evidence on file
that the claimant was aware that the receipt of full SSA benefits concurrent with disability/wage loss compensation was prohibited. 15
Because of the complex nature of SSA benefits
administration, appellant could not have been expected to be able to calculate the amount of an
offset. Therefore, he could not reasonably have been aware during the relevant period that his
concurrent receipt of SSA benefits constituted an actual prohibited dual benefit. 16
Thus, based on the circumstances described, the Board finds that OWCP has not met its
burden of proof to establish that he was at fault in the creation of the overpayment for the period
December 1, 2016 through June 22, 2019.17
As appellant was without fault in the creation of the overpayment, the case will be
remanded to OWCP to consider the issue of waiver of recovery of the overpayment. Following
any further development deemed necessary, OWCP shall issue a de novo decision on waiver.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$18,432.73 for the period December 1, 2016 through June 22, 2019 because he concurrently
received FECA wage-loss compensation and SSA age-related retirement benefits, without an
appropriate offset. The Board further finds that he was without fault in the creation of the
overpayment for the period December 1, 2016 through June 22, 2019.18

15

Supra note 13 at Chapter 6.300.4(g)(4) (September 2018).

16

See J.B., Docket No. 19-1244; G.G., Docket No. 19-0684 (issued December 24, 2019) (the Board affirmed
OWCP’s finding that, due to the complexity of SSA age-related retirement benefits administration, appellant was not
with fault in the creation of the overpayment because he could not have reasonably known that an improper payment
had occurred. OWCP determined that he was not expected to be able to calculate the amount of the offset prior to
receipt of information for the SSA).
17

R.W., Docket No. 19-0334 (issued August 7, 2020); E.H., Docket No. 18-1009 (issued January 29, 2019).

18

In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the August 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: September 7, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
TENNESSEE VALLEY AUTHORITY,
DIVISION OF POWER SYSTEMS
OPERATIONS WORKERS’ COMPENSATION
DEPARTMENT, Chattanooga, TN, Employer
__________________________________________

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

Docket No. 18-1214
Issued: January 29, 2019

Case Submitted on the Record

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

JURISDICTION
On May 29, 2018 appellant filed a timely appeal from a February 20, 2018 merit decision
and a March 9, 2018 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.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish an injury in
the performance of duty; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 18, 2017 appellant, then a 58-year-old electrician, filed an occupational
disease claim (Form CA-2) alleging that he developed hearing loss and tinnitus as a result of
employment-related noise exposure. He noted that he first became aware of his condition on
November 11, 1998. Appellant reported that he worked around high voltage transformers and high
pressure air operated breakers for extended periods of time which caused a decline in his hearing.
He noted no other activities which exposed him to loud noises. Appellant reported that he had
previously filed a hearing loss claim3 and had hoped his condition would stabilize, but instead it
continued to decline.
By development letter dated January 3, 2018, OWCP requested additional factual
information from appellant, including information regarding his employment history, when he
related his hearing loss to conditions of employment, and all nonoccupational exposure to noise.
It also requested that he provide medical documentation pertaining to any prior treatment he
received for ear or hearing problems. OWCP further noted that OWCP File No. xxxxxx338
remained open and if he was claiming increased impairment for hearing loss, he should submit a
claim for compensation form (Form CA-7) under that claim with supporting medical evidence
establishing increased impairment. By separate letter of even date, it requested that the employing
establishment provide further information pertaining to appellant’s claim for occupational noise
exposure. No further evidence was received.
By decision dated February 20, 2018, OWCP denied appellant’s claim finding that the
evidence of record was in sufficient to establish that an injury occurred as alleged, as he neither
responded to its January 3, 2018 development letter, nor provided evidence in support of his claim.
On March 1, 2018 appellant requested reconsideration of the February 20, 2018 OWCP
decision. The request consisted only of a fax cover sheet, a copy of the February 20, 2018 decision,
and the appeal request form. No evidence was received.
By decision dated March 9, 2018, OWCP denied appellant’s request for reconsideration,
finding that he neither raised substantive legal questions nor submitted relevant and pertinent new
evidence.

3

The Board notes that appellant has a prior occupational disease claim which OWCP accepted for bilateral
sensorineural hearing loss on December 28, 2004 under OWCP File No. xxxxxx338. On February 15, 2005 appellant
received a schedule award for 13 percent permanent impairment of loss of hearing in both ears. The claim remains
open for medical benefits. The record before the Board contains no other information pertaining to appellant’s prior
hearing loss claim.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while 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.4 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.5
In order to determine whether an employee actually sustained an 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 which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.6 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty.
Appellant must establish all of the elements of his claim in order to prevail. He must
provide a factual statement identifying the employment factors alleged to have caused the
employment injury before OWCP can review the medical evidence to determine whether an
employment-related medical condition has been diagnosed.
The Board finds that appellant has not provided adequate detail to establish that he
experienced employment-related noise exposure following his previously accepted injury.8 On his
Form CA-2 appellant generally stated that exposure to high voltage transformers and high pressure
4

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

5

Michael E. Smith, 50 ECAB 313 (1999).

6

Elaine Pendleton, supra note 4.

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

P.J., Docket No. 15-1816 (issued December 23, 2015).

3

air operated breakers for extended periods caused a decline in his hearing. The record reflects that
appellant has previously filed an occupational disease claim pertaining to employment-related
noise exposure which was accepted by OWCP for bilateral sensorineural hearing loss under
OWCP File No. xxxxxx338. With regard to the present occupational disease claim, he failed to
describe, with dates, specific continued work-related noise exposure to which he is attributing to
his current tinnitus and hearing loss.9
By letter dated January 3, 2018, OWCP requested that appellant describe the factual
circumstances of his injury and provided a questionnaire for his completion. Appellant neither
responded to the questionnaire, nor provided evidence in support of his claim. As such, the record
does not contain an explanation as to the type of noise, decibel level, or hours of exposure., nor
does it contain a description of appellant’s employment duties on specific dates following his first
accepted hearing loss claim or how his federal employment exposed him additional factors of
hazardous noise. The only explanation provided pertaining to his work-related noise exposure was
the generalized and vague statement noted in his Form CA-2. By failing to describe the workrelated noise exposure and circumstances surrounding the alleged injury, appellant has not met his
burden of proof to establish that the occupational exposure occurred as alleged.10
The Board, therefore, finds that he has failed to meet his burden of proof.11
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s 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 FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.12 Section 10.608(b) of OWCP regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.13

9

M.L., Docket No. 14-1208 (issued September 29, 2014).

10

P.T., Docket No. 14-0598 (issued August 5, 2014).

11

Upon return of the case file OWCP should administratively combine the current file with OWCP File No.
xxxxxx338, with File No. xxxxxx338 designated as the master file, as OWCP has already accepted occupational
hearing loss as an accepted condition.
12

D.K., 59 ECAB 141 (2007).

13

K.H., 59 ECAB 495 (2008).

4

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The issue presented on appeal was whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In his application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, and he did not advance a new and relevant legal argument not
previously considered. Consequently, he is not entitled to review of the merits of his claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).14
The underlying issue on appeal involved whether appellant was exposed to employmentrelated noise in the performance of duty. Appellant’s reconsideration request does not provide
greater detail pertaining to whether his occupational noise exposure occurred in the manner
alleged. Furthermore, he failed to submit any relevant and pertinent new evidence in support of
his request for reconsideration.15 Rather, he simply resubmitted OWCP’s February 20, 2018
decision along with his appeal request form. Material which is duplicative of that already
contained in the case record does not constitute a basis for reopening a case.16
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty. The Board also finds that OWCP properly denied his request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

14

C.B., Docket No. 08-1583 (issued December 9, 2008).

15

M.C., Docket No. 14-0021 (issued March 11, 2014); M.H., Docket No. 13-2051 (issued February 21, 2014).

16

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the March 9 and February 20, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 29, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-479
Issued: August 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 31, 2013 appellant filed a timely appeal from an August 14, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a ratable hearing loss warranting a schedule
award.
On appeal, appellant contends that he experienced hearing loss with ringing in his ears.
He noted that he frequently asks people to repeat themselves, talks louder than other people in a
crowd and has difficulty communicating over the telephone.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 27, 2013 appellant, then a 57-year-old supply technician, filed an occupational
disease claim alleging hearing loss as a result of his federal employment. In an August 13, 2012
statement, he stated that he worked as a supply technician, a position he held from September 3,
2006 to April 30, 2012, in both an office and warehouse environment. While working in the
office, he was exposed to noise from telephone ringing, typing, loud laughing and talking. While
working at the warehouse, appellant was exposed three to four hours a day to noise from the
operation of forklifts, tugs, and golf carts entering and leaving the warehouse, and overhead loud
noises of workers hammering and drilling.
Outside the warehouse, there were four docks which store C-5 aircrafts for daily
maintenance. Appellant was also exposed to noise from the aircraft mechanics, sheet metal
workers and electricians working hammering, drilling and testing aircraft parts. There was also
an industrial flight line area and he was continuously exposed to noise from aircrafts landing or
taking off, engine testing, crane operating and toting of these aircraft. He also noted prior
exposure to hazardous noise in his positions as a material expediter, aircraft freight loader and
material examiner and identifier. Appellant was last exposed to noise in his federal employment
on April 19, 2012. He retired effective April 30, 2012.
Appellant submitted the results of an audiometric test conducted at the employing
establishment. He also submitted the results of an audiogram conducted by Milton J. Schmidt on
April 19, 2012.
On September 13, 2012 OWCP referred appellant to Dr. Kenneth Walker, a Boardcertified otolaryngologist, for a second opinion. Appellant was evaluated in Dr. Walker’s office
on October 18, 2012. At that time, he complained of tinnitus, high pitched ringing and bilateral
hearing loss. The results of audiometric testing conducted on October 18, 2012 at the frequency
levels of 500, 1,000, 2,000 and 3,000 Hertz (Hz) revealed air decibel losses in the right ear of 5,
10, 20 and 20 decibels, respectively; and decibel losses in the left ear of 0, 10, 25 and 25,
respectively. There was no significant air/bone gap present. In an October 19, 2012 report,
Dr. Walker noted that appellant’s audiogram showed bilateral, noise-induced sensorineural
hearing loss. He found that appellant’s hearing loss was consistent in pattern with noise-induced
hearing loss due, in part, to his federal employment. Dr. Walker recommended hearing
conservation measures, annual audiograms and hearing aid evaluation.
On October 25, 2012 an OWCP medical adviser reviewed the record and audiometric
testing to find that appellant’s hearing loss was causally related to his history of noise exposure
at work. Using Dr. Walker’s findings, the medical adviser calculated that, under the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides), appellant had a zero percent binaural hearing loss for purposes of a schedule
award.
By decision dated October 29, 2012, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss.
On November 26, 2012 appellant filed a claim for a schedule award.

2

In a decision dated March 18, 2013, OWCP denied appellant’s claim for a schedule
award as the medical evidence established that the extent of his bilateral sensorineural hearing
loss was not ratable.
On April 11, 2013 appellant requested review of the written record by an OWCP hearing
representative.
By decision dated August 14, 2013, the hearing representative affirmed the March 18,
2013 decision.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides (6th ed. 2009), has been adopted by OWCP for evaluating schedule loss and the
Board has concurred in such adoption.3
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.4 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five and then added to the greater loss and the total is divided by six
to arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.5 The Board has also noted OWCP’s policy
to round the calculated percentage of impairment to the nearest whole number.6

2

5 U.S.C. §§ 8101-8193.

3

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

4

See A.M.A., Guides 250.

5

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52 ECAB 462 (2001).

6

J.H., Docket No. 08-2432 (issued June 15, 2009); Robert E. Cullison, 55 ECAB 570 (2004). See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010).

3

ANALYSIS
The Board finds that appellant has not established that he has a ratable hearing loss.
OWCP accepted that he had a bilateral sensorineural hearing loss based on the report of
Dr. Walker. On October 19, 2012 Dr. Walker diagnosed bilateral sensorineural hearing loss
causally related to appellant’s federal employment.
An OWCP medical adviser applied OWCP’s standard procedures to the October 18, 2012
audiogram obtained by Dr. Walker and rated a binaural hearing loss of zero percent. Test results
for the frequency levels recorded at 500, 1,000, 2,000 and 3,000 Hz on the right revealed decibel
losses of 5, 10, 20 and 20 decibels, respectively, for a total of 55 decibels. This figure, when
divided by 4, results in an average hearing loss of 13.75 decibels. The average of 13.75 decibels,
when reduced by the 25 decibel fence and multiplied by 1.5, results in a zero percent monaural
hearing loss in the right ear. With respect to the left ear, test results for frequency levels at 500,
1,000, 2,000 and 3,000 Hz revealed decibel losses of 0, 10, 25 and 25, respectively, for a total of
60 decibels. This figure, when divided by 4, results in an average hearing loss of 15 decibels.
The average of 15 decibels, when reduced by the 25-decibel fence and multiplied by 1.5, results
in a zero percent monaural hearing loss in the left ear. As the monaural hearing loss rating was
zero percent for both the left and right ears, the binaural hearing loss was also zero percent.7 For
this reason, the extent of appellant’s hearing loss is not ratable for purposes of a schedule award.
The Board notes that appellant submitted results of an April 19, 2012 audiogram.
However, this evidence is of no probative value as it was not certified by a physician as
accurate.8
On appeal appellant contends that he experiences ringing in his ears. He did not file a
claim alleging tinnitus, although Dr. Walker did note that appellant complained of tinnitus. The
Board also notes that the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.9 A schedule award for tinnitus is not
payable unless the medical evidence establishes that the condition caused or contributed to a
ratable hearing loss.10 As the extent of appellant’s hearing loss is not ratable, there is no basis for
payment of compensation due to tinnitus. Appellant further contends on appeal that his hearing
loss interferes with his daily living in that he has to ask people to repeat themselves, that he talks
louder than others, and that he has difficulty communicating over the telephone. The amount
payable pursuant to the schedule at 5 U.S.C. § 8107(c) does not take into account the effect the
impairment may have on sports, hobbies or lifestyle activities.11 The Board finds that OWCP
7

See T.W., Docket No. 13-1967 (issued February 10, 2014).

8

See Joshua A. Holmes, 42 ECAB 231, 236 (1990) (if an audiogram is prepared by an audiologist, it must be
certified by a physician as being accurate before it can be used to determine the percentage of hearing loss). See
also James A. England, 47 ECAB 115, 118 (1995) (finding that an audiogram not certified by a physician as being
accurate has no probative value; OWCP need not review uncertified audiograms).
9

A.M.A., Guides 250.

10

Supra note 7.

11

See Denise L. Crouch, 57 ECAB 161 (2005).

4

properly based its conclusion on the report of Dr. Walker as interpreted by the medical adviser,
which showed that appellant did not establish a ratable hearing loss.
Appellant may request a schedule award or increased schedule award based on evidence
of new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained a ratable hearing loss
warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 14, 2013 is affirmed.
Issued: August 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5