United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., Appellant
and
DEPARTMENT OF THE ARMY, CIVILIAN
PERSONNEL ADVISORY CENTER,
Fort Gordon, GA, Employer
__________________________________________

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

Docket No. 19-0932
Issued: October 3, 2019

Case Submitted on the Record

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

JURISDICTION
On March 27, 2019 appellant, through counsel, filed a timely appeal from a January 29,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish back, bilateral lower
extremity, and right elbow conditions causally related to the accepted March 7, 2018 employment
incident.
FACTUAL HISTORY
On March 13, 2018 appellant, then a 47-year-old medical instrument technician, filed a
traumatic injury claim (Form CA-1) alleging that on March 7, 2018 he experienced pain, loss of
sensation, tingling, and numbness in his lower back and bilateral lower extremities, sharp pain,
swelling, numbness, and tingling in his right ankle and right elbow while in the performance of
duty when he twisted to brace himself from falling. He stopped work on the date of injury. On
the reverse side of the claim form, the employing establishment controverted the claim, contending
that appellant was not injured in the performance of duty.
In an April 10, 2018 development letter, OWCP advised appellant that when his claim was
first submitted it appeared to be a minor injury that resulted in minimal or no lost time from work
and it therefore had administratively approved payment of a limited amount of medical expenses.
It explained that his claim was being reopened because he had not returned to work in a full-time
capacity. OWCP advised appellant of the type of medical evidence needed to establish his claim
and afforded him 30 days to submit the necessary evidence.
In a progress note dated March 7, 2018, Dr. Jimmy L. Peebles, Board-certified in
emergency medicine, indicated that appellant was seen for a minor illness. He diagnosed right
elbow and right ankle injury, and lumbar strain. Dr. Peebles recommended that appellant be
excused from work or school from the date of his evaluation through March 10, 2018.
In a progress note dated March 11, 2018, Dr. Ibhar Al Mheid, a Board-certified internist,
provided a discharge diagnosis of lumbago. In a letter of even date, he recommended that appellant
be excused from work due to his evaluation on that day. Dr. Mheid also placed appellant off work
through March 14, 2018. In consult requests dated March 11, 2018, he requested physical therapy
to treat appellant’s lumbago with sciatica.
Dr. Madhava R. Koti, a Board-certified internist, in progress notes and letters dated
March 19 and April 1, 2018, indicated that appellant had been having medical problems since
March 7, 2018. He provided a discharge diagnosis of lower back pain with lumbar radiculopathy,
rule out disc herniation, and contusion of the right elbow and ankle. In the March 19, 2018 letter,
Dr. Koti advised that appellant was unable to work until April 2, 2018. In the April 1, 2018 letter,
he advised that appellant should not work until April 20, 2018. Dr. Koti, in consult requests dated
April 1 and 2, 2018, requested prosthetics for appellant’s provisional diagnosis of unspecified
injury of unspecified muscle(s) and tendon(s) at the lower leg level, unspecified leg, initial
encounter, and a surgical consult regarding his provisional diagnosis of intervertebral disc
disorders with radiculopathy.
OWCP also received a letter dated March 14, 2018 by Dr. Muhammad Abbasi, a Boardcertified internist. Dr. Abbasi noted that he had evaluated appellant on March 13, 2018 primarily

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for a back injury that occurred on March 7, 2018. He recommended that appellant not return to
work until March 20, 2018.
By decision dated May 18, 2018, OWCP accepted that the March 7, 2018 employment
incident occurred as alleged, but denied the claim finding that the medical evidence submitted did
not establish a diagnosed medical condition causally related to the accepted employment incident.
It concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
OWCP thereafter received medical evidence from Dr. Joseph Martino, Jr., an attending
Board-certified orthopedic surgeon. In a May 21, 2018 report, Dr. Martino discussed the history
of the accepted March 7, 2018 employment incident and appellant’s medical treatment. He
reported findings on physical and x-ray examination. Dr. Martino provided impressions of lumbar
sprain/strain with bilateral lower extremity radiculopathy, bladder and bowel incontinence
possibly from the above diagnosis, right elbow contusion, sprain/strain, and right ankle
sprain/strain. He opined, within a reasonable degree of medical certainty, that appellant’s injuries
were directly caused by the March 7, 2018 employment incident and his symptoms correlated with
the mechanism of injury. Dr. Martino further opined that appellant was currently occupationally
disabled until appropriate treatment was rendered. In an imaging order form dated May 21, 2018,
he reiterated his diagnosis of lumbar sprain/strain with bowel condition. In a form dated May 22,
2018, Dr. Martino diagnosed lumbar disc herniation at L4-5 and severe right ankle and right elbow
sprain/strain. In a May 22, 2018 report, he reiterated appellant’s history of injury and discussed
MRI scan findings. Dr. Martino diagnosed resolving disc herniation at L5-S1 with resolving
symptoms attributable to appellant’s bowel and bladder changes. Additionally, he diagnosed grade
3 ankle sprain of the lateral ankle ligament complex, but found no fracture. Dr. Martino also
diagnosed an ulnar collateral ligament sprain of the right elbow.
On May 30, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review regarding the May 18, 2018 decision.
OWCP received additional reports from Dr. Martino. In a May 22, 2018 disability
certificate, Dr. Martino noted that appellant could not work until his next visit and was restricted
from driving. In a report dated June 18, 2018, he advised that appellant was not capable of working
in any capacity at that time based on his radicular symptoms and chronic mid back and low back
pain in the lumbar distribution, which was conﬁrmed on examination. Dr. Martino noted that this
was associated with coincident muscle spasms. In a disability certificate and a return
appointment(s)/post visit form dated June 18, 2018, he noted that appellant was unable to work
until his next visit on July 16, 2018. In reports dated August 20 and 21, 2018, Dr. Martino opined
that appellant had sustained a left knee injury causally related to the accepted March 7, 2018
employment incident. He noted a history of injury that appellant fell and twisted his knee while
trying to get out of bed during the weekend of August 11, 2018. Dr. Martino noted the medical
treatment appellant received for his left knee injury and again found that appellant was unable to
work and listed his physical restrictions. In an August 20, 2018 disability certificate, he advised
that appellant was unable to work until his next visit.
A lumbar spine MRI scan report dated May 21, 2018 by Dr. Thomas E. Turek, a Boardcertified diagnostic radiologist, provided impressions of mild degenerative spondylosis at L5-S1,

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mild facet arthropathy at L1-2, L2-3, L3-4, and L4-5 disc space levels and no evidence of herniated
disc, spinal stenosis, or neural foraminal stenosis; and degenerative spondylosis and narrowing of
the disc with Modic changes related to stress response at the L5-S1 disc space level, a small broadbased central herniated disc protrusion in the midline indenting the thecal sac, no spinal stenosis,
normal neural foramina, and facet arthropathy.
OWCP received x-ray reports dated March 7, 2018 by Dr. Eduardo J. Stincer, a Boardcertified diagnostic radiologist. In a March 7, 2018 right elbow x-ray report, Dr. Stincer provided
an impression of an intact right elbow with a large olecranon process bone spur. In a March 7,
2018 lumbar spine x-ray report, he provided an impression of chronic minimal degenerative
changes of the lower lumbar spine centered at the L5-S1 level without superimposed acute
compression fractures.
A March 7, 2018 right ankle x-ray report by Dr. Jayanth H. Keshavamurthy, a Boardcertified diagnostic radiologist was also received. Dr. Keshavamurthy provided an impression of
no acute fracture or osseous abnormality.
By decision dated January 29, 2019, an OWCP hearing representative affirmed OWCP’s
May 18, 2018 decision, as modified. She found that appellant had submitted sufficient medical
evidence to establish diagnosed lumbar, bilateral lower extremity, right elbow, and right ankle
medical conditions, but denied the claim because the evidence was insufficient to establish that the
diagnosed conditions were causally related to the accepted March 7, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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,4 and that an injury was sustained in the performance of duty as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5 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.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.7 There are two
3

Id.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

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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.8 The
second component is whether the employment incident caused a personal injury.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident 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 medical
rationale, explaining the nature of the relationship between the diagnosed condition, and
appellant’s specific employment incident. 12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish back, bilateral
lower extremity, and right elbow conditions causally related to the accepted March 7, 2018
employment incident.
In a report dated May 21, 2018, Dr. Martino noted a history of the accepted March 7, 2018
employment incident. He discussed examination findings and diagnostic test results. Dr. Martino
provided impressions of lumbar sprain/strain with bilateral lower extremity radiculopathy, bladder
and bowel incontinence possibly from the above diagnosis, right elbow contusion, sprain/strain,
and right ankle sprain/strain. He opined, within a reasonable degree of medical certainty, that the
diagnosed conditions were directly caused by the accepted March 7, 2018 work incident and found
that appellant was totally disabled from work. Dr. Martino noted that appellant’s symptoms
correlated with the mechanism of injury.
The Board finds that the opinion on causal relationship by Dr. Martino are conclusory in
nature. A mere conclusory opinion provided by a physician, without the necessary rationale
explaining how and why the employment incident was sufficient to result in the diagnosed medical
conditions, is insufficient to meet a claimant’s burden of proof to establish a claim. 13 Thus, the
Board finds that Dr. Martino’s report is insufficient to establish appellant’s claim.
Similarly, Dr. Martino’s August 20 and 21, 2018 reports, which found that appellant
sustained a left knee injury on August 11, 2018 due to the accepted March 7, 2018 employment
incident, continued to be totally disabled from work, and required physical restrictions also are

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

10

S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

11

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

Id.

13

See B.C., Docket No. 18-1735 (issued April 23, 2019); J.D., Docket No. 14-2061 (issued February 27, 2015).

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deficient as these reports do not provide a firm diagnosis of a particular medical condition,14 or the
necessary medical rationale to establish causal relationship. 15
In his remaining reports, Dr. Martino reiterated the history of the accepted March 7, 2018
employment incident and his prior lumbar diagnosis and finding regarding appellant’s disability
for work. He also provided additional diagnoses of lumbar disc herniation at L4-5 with resolving
symptoms attributable to appellant’s bowel and bladder changes, grade 3 right ankle sprain of the
lateral ankle ligament complex, and ulnar collateral ligament sprain of the right elbow. These
additional reports do not contain a specific opinion as to the cause of the diagnosed conditions and
resultant disability. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.16 These reports therefore are insufficient to establish appellant’s claim.
Likewise, the reports and progress notes from Drs. Peebles, Al Mheid, and Abbasi, which
addressed appellant’s right elbow, right ankle, and lumbar conditions, disability for work, physical
restrictions, and medical treatment also are deficient as these reports and progress notes do not
contain an opinion regarding causal relationship.17
Appellant also submitted diagnostic test reports dated March 7 and May 21, 2018 from
Drs. Stincer, Keshavamurthy, and Turek and the laboratory report dated March 11, 2018. The
Board has held that diagnostic studies lack probative value as they do not address whether the
employment incident caused any of the diagnosed conditions. 18 Such reports are therefore
insufficient to establish appellant’s claim.
As there is no well-reasoned medical opinion establishing appellant’s claim for
compensation the Board finds that he has not met his burden of proof. 19
On appeal counsel contends that OWCP’s January 29, 2019 decision is contrary to fact and
law. For the reasons set forth above, the Board finds that appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.

14

See M.J., Docket No. 18-1114 (issued February 5, 2019).

15

B.C., supra note 13.

16

Id.; A.L., Docket No. 18-1756 (issued April 15, 2019); K.E., Docket No. 18-1357 (issued March 26, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018).
17

Id.

18

See B.C., supra note 13; J.S., Docket No. 17-1039 (issued October 6, 2017).

19

D.N., Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish back, bilateral
lower extremity, and right elbow conditions causally related to the accepted March 7, 2018
employment incident.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 3, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Steven E. Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-640
Issued: June 23, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 22, 2014 appellant, through her attorney, filed a timely appeal from 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 to review the merits of this case.
ISSUE
The issue is whether appellant’s December 14, 2011 employment injury caused disability
after December 30, 2011.
FACTUAL HISTORY
On December 14, 2011 appellant, a 45-year-old casual mail handler with a temporary
appointment, sustained a traumatic injury in the performance of duty. The heavy lid of an over-

1

5 U.S.C. § 8101 et seq.

the-road container closed and hit the top of her right shoulder. She sought medical attention that
day and resumed modified duty.
Appellant received notice that her appointment would expire on December 30, 2011.
According to a notification of personnel action, however, she was separated from employment
effective December 31, 2011 for unsatisfactory attendance.
On her last day of work, appellant was seen by Dr. William B. Huey, Jr., a specialist in
occupational medicine, who noted the history of injury, her complaints and his findings on
examination. Dr. Huey found that she could perform modified duty. He made the same finding
on January 5, 12 and 27, 2012. Dr. Jesse E. Seidman, a Board-certified orthopedic surgeon,
found appellant capable of modified duty on February 9 and April 23, 2012.
OWCP accepted appellant’s claim for right shoulder contusion. It later accepted right
shoulder rotator cuff impingement syndrome. OWCP authorized arthroscopic rotator cuff repair,
which was performed on July 25, 2012.
On January 31, 2013 appellant claimed compensation for disability beginning
December 14, 2011. The employing establishment again indicated that she was separated
effective December 31, 2011 for unsatisfactory attendance.
OWCP advised appellant that the period December 14, 2011 through January 28, 2012
could not be paid because it represented the initial 45 days falling under continuation of pay.
Further, the period after January 29, 2012 was not payable because she was separated effective
December 31, 2011 as a term casual employee for unsatisfactory attendance.
Appellant’s attorney responded that appellant was not separated for unsatisfactory
attendance; her appointment simply expired. Prior to the expiration, appellant was working
limited duty due to her work injury. The attorney contended that there was no evidence that she
had recovered the ability to earn wages as a mail handler. He argued that the expiration of her
appointment amounted to a withdrawal of limited duty and that compensation for loss of wageearning capacity is based on loss of the capacity to earn, not on actual wages lost. The attorney
added that, as the withdrawal did not occur for cause, OWCP could accept a recurrence and
begin the payment of benefits if the evidence establishes continuing injury-related disability for
regular duty.
OWCP explained that appellant was entitled to compensation as a result of her authorized
surgery on July 25 through September 14, 2012, when she was released to restricted duty. The
period January 1 to July 24, 2012 and the period beginning September 14, 2012, however,
required further development. OWCP asked appellant to provide medical evidence to establish
her disability for work during the two periods.
The manager of distribution operations clarified that appellant was hired as a noncareer
casual mail handler with a temporary appointment that was scheduled to end on
December 30 2011. Appellant was hired to work the holiday season mailing on an as-needed
basis with no set days or work hours. “Generally, after the holiday mailing season has come to
an end, employees of this nature are terminated at the end of their appointment and because
services are no longer required.”
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In a decision dated August 28, 2013, OWCP denied appellant’s disability claim. It found
that the period December 15 to 30, 2011 was considered a period of continuation of pay, which
the employing establishment would pay. Documentation showed that appellant returned to work
on December 17, 2011 and that her temporary appointment expired on December 30, 2011.
OWCP advised that the employing establishment was responsible for her entitlement to
continuation of pay on December 15 and 16, 2011, but that there was no entitlement to
compensation beyond December 17, 2011. “The evidence of record at this time fails to support
your claimed entitlement to compensation/disability during the period you claimed, again
because you were hired as a noncareer casual mail handler from [November 19 to December 30,
2011].”
On appeal, appellant’s attorney cites the case of Debbie A. Titus,2 for the proposition that
compensation for loss of wage-earning capacity is based on loss of the capacity to earn and not
on actual wages lost. He noted no evidence that appellant had recovered her ability to earn
wages as a mail handler and that the employing establishment withdrew her limited duty. The
attorney concedes that appellant is not entitled to wage-loss compensation during the period that
she was provided limited duty, but she was unable to perform the full duties of the position she
occupied on her date of injury as a result of her work-related injury. “Thus, even though
[appellant’s] temporary assignment period ended, her wage-earning capacity remains diminished
by her work-related injury.” Appellant’s attorney’s cited OWCP’s FECA procedure manual on
withdrawals of light duty with no previous loss of wage-earning capacity determination. He
argued that appellant is entitled to compensation for as long as she has lost the ability to earn the
wages she was earning on the date of her injury.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his or her duty.3 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.4
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the evidence,5 including that he or she sustained an
injury in the performance of duty and that any specific condition or disability for work for which
he or she claims compensation is causally related to that employment injury.6

2

Docket No. 05-360 (issued June 3, 2005).

3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f).

5

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

6

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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When a claimant stops working at his or her employing establishment for reasons
unrelated to his or her accepted injury, he or she has no disability within the meaning of FECA.7
ANALYSIS
Appellant sustained a traumatic injury in the performance of duty on December 14, 2011.
She returned to limited duty on December 17, 2011 and continued to work limited duty until her
temporary appointment ended on December 30, 2011, as scheduled. The question raised by
appellant’s claim for wage-loss compensation is what caused her incapacity after December 30,
2011 to earn the wages she was receiving at the time of injury.
Clearly, that incapacity was caused by the termination of appellant’s temporary
appointment. Whether or not she was injured, her temporary appointment was scheduled to end.
It cannot be stated that appellant’s work stoppage on December 31, 2011 was the result of her
employment injury. Dr. Huey, the specialist in occupational medicine, examined her on her last
day of work and found that she was still capable of performing modified duty. He made the
same finding through January 2012. Dr. Seidman, the orthopedic surgeon, saw appellant
thereafter. In February and April 2012, he found, as Dr. Huey did, that she remained capable of
modified duty.
OWCP’s FECA procedure manual likens the circumstances of appellant’s work stoppage
to those caused by a true reduction-in-force, where employees performing full duty as well as
those performing limited duty are affected or to those caused by the closure of a base or other
facility or by the cessation of special funding for a particular position or project.8 Such work
stoppages arise independent of any employment injury.9 If a claimant was a temporary
employee at the time of injury, the mere termination of the temporary appointment does not raise
an issue of disability because it does not satisfy the definition, which requires incapacity because
of an employment injury. Here, appellant’s incapacity to earn the same wages after
December 30, 2011 arose from an independent cause, namely, the administratively scheduled
termination of her temporary appointment.
As the evidence fails to establish that appellant’s December 14, 2011 employment injury
was an operative factor in causing her incapacity to earn the same wages beginning
December 31, 2011, the Board finds that she has not met her burden of proof. The Board will
therefore affirm OWCP’s August 28, 2013 decision on the issue of disability beginning
December 31, 2011.

7

M.S., Docket No. 08-1194 (issued October 22, 2008) (voluntary retirement).

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3.b(1)-(2) (May 1997).
Appellant’s claim is not one of recurrence per se, but the principle remains that certain work stoppages do not
represent a compensable disability, regardless of any prior period of disability.
9

See also supra note 7; Joe H. Davis, Docket No. 04-1030 (issued February 2, 2005) (cases involving claims of
disability following voluntary retirement).

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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.
There remains a question whether appellant is entitled to compensation for disability
beginning July 25, 2012. OWCP advised that she was entitled to compensation as a result of her
authorized surgery on July 25 through September 14, 2012, when she was released to restricted
duty. In its August 28, 2013 decision, however, it did not directly address the issue. The Board
will therefore set aside OWCP’s August 28, 2013 decision on the issue of compensation
beginning July 25, 2012 and will remand the case for an appropriate final decision.10
It is true, as appellant’s attorney argues, that appellant was unable, as a result of her
work-related injury, to perform the full duties of the position she occupied on her date of injury.
That is not the definition of disability. The record demonstrates that appellant performed limited
duty, with no apparent wage loss, from December 17, 2011 through the remainder of her
temporary appointment. During this time, her employment injury did not cause an incapacity to
earn the wages she was receiving at the time of injury. Immediately, after December 30, 2011,
appellant’s incapacity to earn those wages appeared to have nothing to do with her employment
injury and everything to do with the expiration of her appointment.
The attorney points to procedures for withdrawals of limited duty with no loss of wageearning determination, but there was no withdrawal of limited duty in this case. Appellant’s
temporary appointment expired on December 30, 2011 as scheduled.
The case of Debbie A. Titus does not advance appellant’s claim. The claimant worked a
temporary appointment as a casual clerk and sustained an injury in the performance of duty, but
she later began another temporary assignment working limited duty. OWCP determined that her
actual earnings in that position fairly and reasonably represented her wage-earning capacity.
When her current employment terminated because of the expiration of her casual appointment,
the claimant filed a recurrence of disability claim. Under such circumstances, the issue was
whether the loss of wage-earning capacity determination should be modified. As there was no
evidence of a material change in the nature and extent of her injury-related condition and no
evidence that the determination was, in fact, erroneous, the claimant did not meet her burden of
proof. The Board held that the expiration of her temporary appointment was no basis for
modifying the loss of wage-earning capacity determination.
Titus thus supports that the expiration of a temporary appointment does not establish
compensable disability or an injury-related loss of wage-earning capacity.
CONCLUSION
The Board finds that appellant has not met her burden to establish that her December 14,
2011 employment injury caused disability beginning December 31, 2011. The case is not in
posture for decision on whether she is entitled to compensation for disability beginning July 25,

10

See 20 C.F.R. § 10.126 (a decision shall contain findings of fact and a statement of reasons).

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2012, when she underwent authorized right shoulder surgery. Further, development of that issue
is warranted.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed as to disability beginning December 31, 2011 but
is set aside as to disability beginning July 25, 2012. The case is remanded for further action.
Issued: June 23, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
U.F., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, Port Mugu, CA,
Employer
__________________________________________

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

Docket No. 13-46
Issued: April 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On October 5, 2012 appellant filed a timely appeal from the September 12, 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 met his burden of proof to establish an increased
permanent impairment of his legs.
FACTUAL HISTORY
OWCP accepted that on June 29, 1998 appellant, then a 61-year-old electronics
technician, sustained an acute aggravation of degenerative disc disease at L4-5 and L5-S1 due to

1

5 U.S.C. §§ 8101-8193.

lifting cargo at work. On March 25, 2011 he filed a claim for a schedule award due to his
accepted work injury.
In a November 4, 2010 report, Dr. Stephen R. Shaw, an attending Board-certified
orthopedic surgeon, discussed the findings of his examination of appellant’s extremities. He
provided the results of testing related to sensory and motor loss. Dr. Shaw discussed appellant’s
diagnostic test findings and diagnosed lumbar degenerative disc disease at L5-S1 greater than at
L4 and right L5 and S1 radiculopathy.
OWCP referred appellant to Dr. John F. Lawrence, a Board-certified orthopedic surgeon,
for a second opinion examination and opinion on the extent of the permanent impairment of his
legs. In a June 1, 2011 report, Dr. Lawrence discussed appellant’s medical history and reported
the findings of his physical examination. He noted that, on the basis of appellant’s diagnostic
studies, it appeared that a substantial portion of his electrical abnormalities were a result of
peripheral neuropathy. Appellant’s history, findings on x-ray and magnetic resonance imaging
(MRI) scan testing (including studies from 2001 and 2003) and physical examination strongly
suggested that there was a radicular component to his pain together with the polyneuropathic
component. Dr. Lawrence discussed the findings of electromyography (EMG) testing obtained
on May 2, 2011 by Dr. Steven Levine, a Board-certified neurologist, who indicated that appellant
had reached maximum medical improvement and stated that it was appropriate to apply the
standards of Table 16-12 of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (6th ed. 2009). Dr. Lawrence noted:
“Using the [sixth edition of the A.M.A., Guides], Table 16-12 for [p]eripheral
[n]erve [i]mpairment, page 535 for sciatic nerve; I would rate him as [c]lass 1 on
the right side, [four] percent sensory and [nine] percent motor deficit, on the left
side, I would rate as [nine] percent motor deficit. I used functional history
adjustment [g]rade [m]odifier 1 and clinical studies adjustment [g]rade
[m]odifier 1. Both of these would even out to 0 which would be in middle value
of the Table on 535. Adding these values yields 22 percent but combining them
gives final [w]hole [b]ody [i]mpairment of 21 percent.
“Again, to explain the choices made above, despite Dr. Levine’s findings that
only on the left side were there motor changes; on my examination, there was an
equal amount of weakness in the right and left sides and sensory changes
primarily on the right and not on the left with evidence of radicular irritation on
both sides. I thus chose to provide [w]hole [b]ody [i]mpairment on both sides but
less than would have been the case if he did not have evidence of peripheral
neuropathy.”
OWCP sent Dr. Lawrence’s report and the relevant medical evidence to
Dr. Christopher R. Brigham, a Board-certified occupational medicine physician serving as an
OWCP medical adviser. Dr. Brigham was to review the records and provide a calculation of
appellant’s leg impairment.
In his report dated July 27, 2011, Dr. Brigham indicated that to evaluate the peripheral
nerve impairments in appellant’s lower extremities resulting from spinal injuries, he was
applying the standards contained in The Guides Newsletter, “Rating Spinal Nerve Extremity
2

Impairment Using the Sixth Edition” (July/August 2009). He concluded that appellant had a
three percent permanent impairment of his right leg and a zero percent permanent impairment of
his left leg. In reaching this conclusion, Dr. Brigham made reference to proposed Table 2 in The
Guides Newsletter and chose default values for peripheral spinal nerve impairments (related to
the L5 and S1 nerve roots) based on the findings of record. He modified these values based on
grade modifiers for functional history and clinical studies.
Dr. Brigham explained that there was consistent documentation of sensory loss in the
right lower extremity in the distribution of the L5 and S1 nerve roots, but there was no consistent
documentation of motor deficits. He stated that, at the time of maximum medical improvement,
appellant was reported to have full strength. Dr. Brigham noted that the sixth edition of the
A.M.A., Guides stated in Chapter 17 at Section 17.3b that, if physical examination findings are
determined to be unreliable or inconsistent or they are for conditions unrelated to the condition
being rated, they are excluded from the grading process. He indicated that in appellant’s case the
left lower extremity findings were not consistently documented and should be disregarded for
rating purposes as recent medical examination findings show no deficit. Similarly, with regard
to the right lower extremity, Dr. Shaw’s examination did not reveal motor deficits as this was
reported to be “intact.” Dr. Brigham indicated that, therefore, the rating for motor deficits in the
right lower extremity impairment should not be included. He concluded, “The impairment
values for the nerve roots are combined for a total of [three] percent right lower extremity
impairment. As discussed, there is no ratable impairment to the left lower extremity impairment,
i.e., [zero] percent left lower extremity impairment.”2
In an April 25, 2012 decision, OWCP granted appellant a schedule award for a three
percent permanent impairment of his right leg. It was further determined that he had no
permanent impairment of his left leg. OWCP based its schedule award on the July 27, 2011
report of Dr. Brigham and noted that the impairment rating of Dr. Lawrence was based on
improper standards for calculating permanent impairment for spinal nerve impairment.
In a May 7, 2012 report, Dr. Jacob E. Tauber, an attending Board-certified orthopedic
surgeon, stated that he agreed with the impairment rating provided by Dr. Lawrence in his
June 1, 2011 report. He indicated that he and Dr. Lawrence had examined appellant, but that
Dr. Brigham had not done so. Dr. Tauber stated, “[I]t is clear that Dr. Lawrence’s evaluation of
[appellant] is, in fact, accurate and the impairment rating he provided is also accurate. Please
note that Dr. Lawrence based his report on his examination findings combined with the EMG
studies performed by Dr. Levine documenting pathology and correlated with Dr. Lawrence’s
findings.” He asserted that Dr. Brigham used the wrong evaluation tables and misstated the
examination findings he reviewed. Dr. Tauber indicated that Dr. Lawrence properly used Table
16-12 of the A.M.A., Guides and properly applied its standards.
In an August 13, 2012 brief, appellant’s counsel at the time argued that the July 27, 2011
impairment rating of Dr. Brigham was defective for multiple reasons. He claimed that
Dr. Brigham did not use the proper tables, that he did not review all the relevant medical
evidence of record and that his report was not properly signed. Counsel further argued that

2

Dr. Brigham signed his name at the end of the report.

3

Dr. Lawrence and Dr. Tauber applied the proper standards of the A.M.A., Guides. Appellant,
through counsel, requested a review of the written record by an OWCP hearing representative.
In a September 12, 2012 decision, an OWCP hearing representative affirmed OWCP’s
April 25, 2012 schedule award decision.
The hearing representative determined that
Dr. Brigham was the only physician of record who used the proper standards of the A.M.A.,
Guides for evaluating appellant’s leg impairment and that he correctly applied these standards to
the medical findings of record. Therefore, appellant did not meet his burden of proof to establish
that he has permanent impairment of his legs in addition to the three percent permanent
impairment of his right leg for which he received a schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 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.5 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.6
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.7 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.8
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

FECA Bulletin No. 09-03 (issued March 15, 2009).

7

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

8

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

4

Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition”
(July/August 2009) is to be applied.9
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on grade modifier for
Functional History (GMFH) and, if electrodiagnostic testing was done, grade modifier for
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMCS - CDX).11
ANALYSIS
OWCP accepted that on June 29, 1998 appellant sustained an acute aggravation of
degenerative disc disease at L4-5 and L5-S1 due to lifting cargo at work. In an April 25, 2012
decision, it granted him a schedule award for a three percent permanent impairment of his right
leg. OWCP was further determined that appellant had a zero percent permanent impairment of
his left leg. The Board finds that OWCP properly based this award on the July 27, 2011 report
of Dr. Brigham, a Board-certified occupational medicine physician serving as an OWCP medical
adviser. Appellant did not submit medical evidence showing entitlement to additional schedule
award compensation.
In his report dated July 27, 2011, Dr. Brigham properly indicated that to evaluate the
peripheral nerve impairments in appellant’s lower extremities resulting from spinal injuries, he
was applying the standards contained in The Guides Newsletter, “Rating Spinal Nerve Extremity
Impairment Using the Sixth Edition” (July/August 2009).12 He concluded that appellant had a
three percent permanent impairment of his right leg and a zero percent permanent impairment of
his left leg. In reaching this conclusion, Dr. Brigham correctly made reference to Proposed
Table 2 in The Guides Newsletter and chose default values for peripheral spinal nerve
impairments (related to the L5 and S1 nerve roots) based on the findings of record. He modified
these values based on grade modifiers for Functional History and Clinical Studies. In reaching
these determinations, Dr. Brigham extensively discussed the medical findings of record. For
example, he explained that there was consistent documentation of sensory loss in the right lower
extremity in the distribution of the L5 and S1 nerve roots, but there was not consistent
documentation of motor deficits. Dr. Brigham stated that at the time of maximum medical
improvement appellant was reported to have full strength. He further indicated that in
appellant’s case the left lower extremity findings were not consistently documented and should
be disregarded for rating purposes as recent medical examination findings show no deficit.
On appeal, appellant claimed that Dr. Brigham did not use the proper tables, that he did
not review all the relevant medical evidence of record and that his report was not properly
9

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as
Exhibit 4.
10

A.M.A., Guides 515-21, 533.

11

Id. at 521.

12

See supra notes 9 through 11.

5

signed. However, he did not provide support for these arguments as Dr. Brigham’s report
reveals that he extensively discussed the medical evidence of record and applied the proper
standards of the A.M.A., Guides and The Guides Newsletter. Moreover, there is no indication
that his opinion was not properly signed.
The Board notes that the June 1, 2011 impairment rating of Dr. Lawrence, an attending
Board-certified orthopedic surgeon, does not apply the appropriate standards for evaluating
peripheral nerve impairment under the A.M.A., Guides. In a May 7, 2012 report, Dr. Tauber, an
attending Board-certified orthopedic surgeon, stated that he agreed with the impairment rating
provided by Dr. Lawrence in his June 1, 2011 report. However, he also provided an improper
opinion regarding the standards to be used for evaluating peripheral nerve impairment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
permanent impairment of his legs in addition to the three percent permanent impairment of his
right leg for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 19, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board
6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Baltimore, MD, Employer
__________________________________________

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

Docket No. 13-2154
Issued: April 16, 2014

Case Submitted on the Record

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

JURISDICTION
On September 23, 2013 appellant filed a timely appeal from the June 12 and
September 9, 2013 merit decisions of the Office of Workers’ Compensation Programs (OWCP)
granting him an increased schedule award. 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 has more than a 63 percent binaural (both ears) hearing
loss for which he received schedule awards.

1
2

5 U.S.C. § 8101 et seq.

By order dated February 26, 2014, the Board denied appellant’s request for oral argument on the grounds that
his arguments could adequately be addressed in a decision based on a review of the case record. Order Denying
Request for Oral Argument, Docket No. 13-2154 (issued February 26, 2014).

FACTUAL HISTORY
This case has previously been before the Board. In a decision dated August 16, 2011, the
Board affirmed an October 21, 2010 nonmerit decision denying appellant’s request for
reconsideration.3 By decision dated February 4, 2013, the Board set aside a March 30, 2012
decision denying his request for reconsideration as untimely and insufficient to establish clear
evidence of error.4 The Board noted that OWCP had accepted that appellant sustained binaural
hearing loss under file number xxxxxx627. OWCP granted him a schedule award on May 21,
1996 for 12 percent binaural hearing loss and a schedule award on April 16, 1999 for an
additional 30 percent binaural hearing loss. The Board noted that appellant had requested an
additional schedule award. OWCP, however, denied the claim under file number xxxxxx599
after finding that he should file a new occupational disease claim based on his additional noise
exposure. The Board determined, however, that as a claim need not be on a particular form,
appellant’s informal written claim was sufficient to constitute a new occupational disease claim,
and remanded the case for adjudication by OWCP. The facts and circumstances as set forth in
the prior decisions are hereby incorporated by reference.
On remand OWCP prepared a statement of accepted facts that appellant sustained
binaural hearing loss under master file number xxxxxx599 and file number xxxxxx627. It found
that it would adjudicate the new occupational disease claim under master file number
xxxxxx599, as the new hearing loss claim would be doubled into the master file number. OWCP
requested that a medical adviser review the medical evidence to determine whether appellant was
entitled to an additional schedule award for hearing loss.
On March 5, 2013 an OWCP medical adviser reviewed the June 19, 2008 report from
Dr. Juan M. Pardo, an attending Board-certified otolaryngologist. In his June 19, 2008
evaluation, Dr. Pardo obtained audiological testing and diagnosed severe progressive
sensorineural hearing loss. Testing for the left ear at the frequency levels of 500, 1,000, 2,000
and 3,000 cycles per second (cps) revealed decibel losses of 70, 55, 60 and 75, respectively.
Testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed
decibel losses of 80, 75, 75 and 85, respectively. Dr. Pardo requested replacement hearing aids.
After reviewing Dr. Pardo’s findings, the medical adviser totaled the decibel losses for
the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps of 80, 75, 75 and 85 to
3

Docket No. 11-230 (issued August 16, 2011). In 1993 OWCP accepted that appellant, then a 54-year-old
pipefitting foreman, sustained binaural hearing loss due to factors of his federal employment under subsidiary file
number xxxxxx627. It granted him a schedule award on May 21, 1996 for a 12 percent binaural hearing loss. By
decision dated April 16, 1999, OWCP granted appellant a schedule award for an additional 30 percent binaural
hearing loss. In a decision dated December 4, 2008, it denied his claim for an increased schedule award due to
hearing loss. OWCP advised appellant to file a new claim as he had additional noise exposure after it accepted his
claim. In decisions dated February 25 and June 24, 2009, it modified its December 4, 2008 decision after finding
that he did not establish a causal relationship between his increased hearing loss and work factors. In nonmerit
decisions dated March 25 and October 21, 2010, OWCP denied appellant’s request for reconsideration and again
noted that he should file a new occupational disease claim.
4

Docket No. 12-1105 (issued February 4, 2013); petition for recon. denied, Docket No. 12-1105 (issued
July 11, 2013).

2

equal 315. He divided this total by 4 to obtain the average hearing loss at those cycles of 78.75
decibels. The average of 78.75 decibels was then reduced by the 25-decibel fence to equal
53.75. Multiplying the balance of 53.75 by 1.5 resulted in an 80.63 percent monaural hearing
loss for the right ear. The medical adviser totaled the 70, 55, 60 and 75 decibel losses in the left
ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps to equal 260. He divided this total
by 4 to obtain the average hearing loss at those cycles of 65 decibels. The average of 65 decibels
was reduced by 25 decibels to equal a balance of 40 decibels. Multiplying the balance of 40
decibels by 1.5 resulted in a 60 percent monaural hearing loss for the left ear. The medical
adviser multiplied 60, the lesser monaural loss, by 5, for a result of 300. He added the greater
monaural loss of 80.63, to equal 380.62. The medical adviser divided the result of 380.62 by 6,
to equal a 63.44 percent binaural sensorineural permanent hearing loss.
By decision dated June 12, 2013, OWCP granted appellant a schedule award for an
additional 21 percent binaural hearing loss. As it had previously granted him a schedule award
for 42 percent impairment, it subtracted from the total binaural hearing loss of 63 percent to find
an additional 21 percent impairment. The period of the award ran for 42 weeks from June 19,
2008 to April 8, 2009.
On July 17, 2013 appellant requested reconsideration. He argued that OWCP should
have treated his prior schedule awards as preexisting impairments in the calculation losses.
Appellant asserted that prior awards were deducted only after the total numbers of weeks were
calculated and not subtracted from the results of audiometric testing. Citing R.D.,5 he maintained
that the Board found that it was improper to deduct a prior award from audiometric test results.
Appellant also argued that he was entitled to an additional award for tinnitus.
By decision dated September 9, 2013, OWCP denied modification of its June 12, 2013
decision. It found that in R.D., it had subtracted a schedule award for monaural loss from a later
schedule award for binaural loss, which differed from appellant’s case as the prior award was for
a binaural loss.
On appeal appellant argued that OWCP should not have deducted his prior schedule
awards from the audiometric test results under Board case law. He also maintains that OWCP’s
procedures indicate that preexisting impairments to the member are included in determining the
percent of loss. Appellant cites R.D.6 As finding that a prior award is deducted only after
calculating the total number of weeks for an award. He also alleged that he is entitled to a
schedule award for tinnitus as it created difficulty for him in sleeping and performing activities
of daily living.

5

59 ECAB 127 (2007).

6

Id.

3

LEGAL PRECEDENT
The schedule award provision of FECA,7 and its implementing federal regulations,8 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 for all claimants, OWCP has adopted
the American Medical Association, Guides to the Evaluation of Permanent Impairment as the
uniform standard applicable to all claimants.9 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.10
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.11 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps the losses at each
frequency are added up and averaged.12 The remaining amount is multiplied by a factor of 1.5 to
arrive at the percentage of monaural hearing loss.13 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.14 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.15
ANALYSIS
OWCP accepted that appellant sustained binaural hearing loss under file numbers
xxxxxx627 and xxxxxx599. It paid him schedule awards for a total of a 42 percent binaural
hearing loss. In an impairment evaluation dated June 19, 2008, Dr. Pardo diagnosed severe,
progressive sensorineural hearing loss and conducted audiometric testing.
OWCP referred Dr. Pardo’s findings to an OWCP medical adviser for calculation of a
schedule award according to the A.M.A., Guides. The medical adviser properly applied
OWCP’s standardized procedures to the June 19, 2008 audiogram obtained by Dr. Pardo.
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
11

A.M.A., Guides 250.

12

Id.

13

Id.

14

Id.

15

See C.C., Docket No. 11-731 (issued October 11, 2011).

4

Testing for the left ear at the frequencies of 500, 1,000, 2,000 and 3,000 cps revealed losses of
70, 55, 60 and 75 decibels, respectively. These decibel losses were totaled at 260 and divided by
4 to obtain the average hearing loss per cycle of 65 decibels. The average of 65 was then
reduced by the 25-decibel fence to equal 40 decibels for the left ear.16 Following the same
mathematical procedure, the medical adviser totaled the 80, 75, 75 and 850 decibels losses in the
right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps to equal 315. He divided the
total by 4 to obtain the average hearing loss at those cycles of 78.75 decibels, reduced by 25
decibels to equal 53.75.
The binaural hearing loss is determined by calculating the loss in each ear using the
formula for monaural loss; the lesser loss, in this case 60, is multiplied by 5, equaling 300, then
added to the greater loss of 80.63 for a sum of 380.63 and the total is divided by 6 to arrive at the
amount of the binaural hearing loss of 63.44 rounded down to 63 percent.17
The Board finds that OWCP’s medical adviser applied the proper standards to the
findings in Dr. Pardo’s report and audiogram. The result is a 63 percent binaural hearing loss.
Appellant previously received scheduled awards totaling a 42 percent binaural hearing loss.
OWCP, therefore, properly determined that he was entitled to a schedule award for an additional
21 percent binaural loss.
On appeal appellant contends that, pursuant to R.D., OWCP should not have subtracted
the prior award from the audiometric test results but instead should have subtracted the prior
award only after calculating the duration of the award in weeks. In R.D., however, an OWCP
medical adviser subtracted a prior award for a monaural hearing loss from the current
audiometric test results for monaural hearing loss prior to applying the formula for calculating
binaural hearing loss. In the instant case, an OWCP hearing representative did not subtract the
prior award before applying the standardized procedures to Dr. Pardo’s audiometric findings. He
concluded that appellant had a total binaural hearing loss of 63 percent. From this percentage
OWCP properly subtracted the prior award.
An employee is entitled to a maximum schedule award of 200 weeks of compensation for
complete (100 percent) loss of hearing of both ears. Appellant’s total schedule award based on
his binaural hearing loss of 63 percent would be 126 weeks of compensation.18 On the other
hand, an employee is entitled to a maximum schedule award for 52 weeks of compensation for a
complete loss of hearing in one ear.19 Appellant’s award for monaural hearing loss would thus
be 42 weeks of compensation for right monaural hearing loss of 80 percent and 31 weeks of
compensation for left monaural hearing loss of 60 percent, for a total monaural hearing loss of 73

16

The decibel fence is subtracted as it has been shown that the ability to hear every day sounds under everyday
listening conditions is not impaired when the average of the designated hearing levels is 25 decibels or less. See
A.M.A., Guides 250.
17

The policy of OWCP is to round the calculated percentage of impairment to the nearest decimal point. Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(b) (June 2003).
18

5 U.S.C. § 8107(c)(13)(B).

19

Id. at § 8107(c)(13)(A).

5

weeks. OWCP properly based its award on the binaural hearing loss as most favorable for
appellant.
Appellant contends that he is entitled to an additional schedule award due to tinnitus.
However, he has the burden to submit a medical report providing a rationalized opinion that a
diagnosis of tinnitus affected his activities of daily living.20 This appellant has not done.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a 63 percent binaural hearing loss for
which he received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the September 9 and June 12, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 16, 2014
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

20

See Joshua A. Holmes, 42 ECAB 231 (1990).

6


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

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

Docket No. 07-665
Issued: July 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 11, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 2, 2006. The record also contains an
April 18, 2006 decision denying appellant’s request for a hearing and a November 27, 2006
decision denying further merit review of the claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has any employment-related disability on or after
June 28, 1999; (2) whether the Office properly denied appellant’s request for a hearing; and
(3) whether the Office properly refused to reopen the claim for merit review under 5 U.S.C.
§ 8128.
FACTUAL HISTORY
On October 18, 1993 appellant filed an occupational disease claim alleging that she
sustained a neck injury as a result of her federal employment. She had been working in a light-

duty position as a result of prior employment injuries. The Office accepted a thoracic muscle
strain, cervical strain and right impingement syndrome. Appellant underwent C3-4 surgery in
October 1998 and the Office accepted a C3-4 herniated disc. She returned to her light-duty
position and stopped working on June 28, 1999.
The Office referred appellant for a second opinion examination by Dr. Paul Williams, a
neurosurgeon. In a report dated March 20, 2001, Dr. Williams provided a history and results on
examination. He noted chronic pain in appellant’s neck, right shoulder and forearm, preexisting
degenerative changes at C5-6 and C6-7, with a prior discectomy and fusion at C3-4.
Dr. Williams opined that appellant’s condition was the direct result of the natural aging process,
unrelated to her former work activities. He opined that appellant was totally disabled four to six
weeks after the C3-4 surgery, but otherwise was not totally disabled. With respect to any
proposed surgery at C5-6 and C6-7, Dr. Williams opined that the surgery was not reasonable and
necessary regarding the 1993 employment injury.
In a report dated May 9, 2001, Dr. Jon McKellar, a family practitioner, stated that he
could not disagree with Dr. Williams’ conclusion that the symptoms were related to degenerative
changes of the cervical spine.
By decision dated December 3, 2001, the Office determined that appellant was not
entitled to compensation for wage loss from November 27, 1999. The Office also denied
authorization for C5-6 and C6-7 surgery.
Appellant requested a hearing before an Office hearing representative, which was held on
November 21, 2002. By decision dated February 6, 2003, the hearing representative found that
appellant was not entitled to compensation from June 28, 1999. The hearing representative also
affirmed the denial of authorization for surgery.
Following a request for reconsideration, the Office reviewed the case on its merits and
denied modification by decision dated November 21, 2003. The Office noted that appellant had
undergone C5-6 and C6-7 surgery on November 3, 2003 performed by Dr. Darrel C. Brett, a
neurosurgeon.
Appellant again requested reconsideration of her claim. She submitted a February 3,
2004 medical report from Dr. Brett who found spondylotic disease and neck osteoarthritis and
disc protrusion at C5-6 and C6-7. Dr. Brett opined that appellant’s work activities for some 35
years had resulted in the majority of her degenerative changes and then nerve impingement,
which led to the need for surgery. He stated that appellant’s employment activities, as identified
in her job description as a postal clerk, resulted in total disability from June 28, 1999 through
December 15, 2003, when she was released to light-duty work.
In a November 9, 2004 report, Dr. Brett stated that appellant’s work activities included
repetitive exertion with her neck and upper extremities. He stated that these activities resulted in
wear and tear of the cervical spine and “the accumulative effect over 35 years results in
degenerative change with increased dehydration of the disc and formation of micro-fissures and
tears within the annulus of the intervetebral discs. This leads to the development of osteophyte,
disc protrusion, eventual nerve impingement and the development of radicular arm pain….”

2

Dr. Brett opined that appellant’s work as a postal clerk for over 35 years was a major
contributing factor to the development of preoperative complaints and need for surgery.
The Office found that a conflict existed between Dr. Brett and Dr. Williams. The Office
referred appellant to Dr. David Silver, a Board-certified neurosurgeon, for a referee examination.
In a report dated October 24, 2005, Dr. Silver provided a history and results on examination. He
opined that appellant’s cervical spondylosis was a degenerative condition that was not related to
her work activities. With respect to the November 3, 2003 surgery, Dr. Silver opined that it was
not medically warranted or related to appellant’s employment factors. While appellant did have
cervical spondyloisis requiring surgery, this was not employment related. Dr. Silver also found
that appellant was not disabled at the present time. He stated, “If she had not retired, she would
be able to work without restriction, or work at the duty that she returned to after surgery in
January 1996.”
By letter dated November 17, 2005, the Office issued a notice of proposed termination of
medical and compensation benefits. The Office stated that the evidence established that
appellant had no continuing injury-related disability based on the report of Dr. Silver. By
decision dated February 2, 2006, the Office finalized the proposed termination of benefits.
Appellant requested an oral hearing by letter postmarked March 14, 2006. He submitted a
February 27, 2006 report from Dr. Brett, who stated that he disagreed with Dr. Silver’s
conclusions. In a decision dated April 18, 2006, the Office’s Branch of Hearings and Review
determined that the request for an oral hearing was untimely. The Branch of Hearings and
Review further denied the request on the grounds that the issue could be equally well addressed
by requesting reconsideration.
Appellant requested reconsideration on October 31, 2006.
By decision dated
November 27, 2006, the Office found that the evidence was insufficient to warrant merit review
of the claim.
LEGAL PRECEDENT – ISSUE 1
When the Office undertakes to develop the evidence of record, it has the responsibility to
secure evidence that resolves the issues presented in the case.1 With respect to a final decision, it
is a well-established principle that the Office must make proper findings of fact and a statement
of reasons in its final decisions.2
ANALYSIS – ISSUE 1
The February 2, 2006 decision stated that it was finalizing a notice of proposed
termination of benefits. The issues, however, were whether appellant was entitled to
compensation for wage loss on or after June 28, 1999, and whether the cervical surgery in
November 2003 was reimbursable pursuant to 5 U.S.C. § 8103. The notice of proposed
termination and the February 2, 2006 final decision do not make adequate findings on the issues
1

See Mae Z. Hackett, 34 ECAB 1421 (1983); Richard W. Kinder, 32 ECAB 863 (1981).

2

See Arietta K. Cooper, 5 ECAB 11 (1952); 20 C.F.R. § 10.126.

3

presented. The Office quotes from Dr. Silver and then makes a general finding on continuing
employment-related disability. There is no indication in the record that the case was in a posture
for termination of benefits, as the Office had denied compensation since appellant stopped
working on June 28, 1999, and the Office made no findings that appellant was entitled to any
claimed compensation. The February 2, 2006 decision does not adequately identify or address
the issues presented.
The Board also notes that in developing the claim the Office purported to find a conflict
under 5 U.S.C. § 8123(a) between appellant’s physician, Dr. Brett, and a second opinion
physician, Dr. Williams.3 There was, however, no existing conflict between these physicians.
Dr. Williams’ report was dated March 20, 2001, three years earlier than the 2004 reports from
Dr. Brett. Appellant underwent surgery in November 2003, which would not be reflected in the
history provided by Dr. Williams. Moreover, Dr. Williams did not discuss in detail the relevant
issues regarding disability for work on and after June 28, 1999.
The referral to Dr. Silver, therefore, is as a second opinion examiner.4 Dr. Silver did
provide a complete factual and medical background. He opined that appellant was not disabled
due to an employment-related condition as of June 28, 1999, as she would have been able to
continue working had she not retired. Dr. Silver also opined that the November 2003 surgery
was not necessary to treat an employment-related condition. On the other hand, Dr. Brett opined
that appellant was disabled as of June 28, 1999 to December 15, 2003 as a result of her
employment injuries. He also found the surgery he performed on November 3, 2003 was
employment related.
A conflict in the medical evidence therefore exists between Dr. Brett and Dr. Silver. The
case will be remanded to the Office for referral to a referee examiner and proper resolution of the
conflict. After such further development as the Office deems necessary, it should issue an
appropriate decision that properly addresses the issues presented. In view of the Board’s
findings, it will not address the remaining issues.
CONCLUSION
The Board finds that the February 2, 2006 decision failed to properly identify the issues
and make adequate findings. There remains an unresolved conflict in the medical evidence and
the case is remanded for resolution of the conflict.

3

The Federal Employees’ Compensation Act provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary shall appoint a third
physician who shall make the examination. 5 U.S.C. § 8123. This is called a referee examination and the Office
will select a physician who is qualified in the appropriate specialty and who has no prior connection with the case.
20 C.F.R. § 10.321 (1999).
4

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 2, 2006 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: July 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 09-1269
Issued: February 24, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 16, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 10, 2008 merit decision denying her claim for compensation and a
February 11, 2009 nonmerit decision denying reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant has established that she sustained an injury causally
related to factors of her federal employment; and (2) whether the Office properly refused to
reopen her case for further review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 8, 2008 appellant, then a 48-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed a pinched nerve due to her employment
activities. She first noticed her condition was caused or aggravated by her employment on
April 29, 2008. The employing establishment advised appellant was claiming a neck and

shoulder condition due to repetitive motion involved in her employment. Appellant did not stop
work. On May 19, 2008 the employing establishment offered her a modified distribution clerk
assignment, which she accepted.
In a letter dated May 12, 2008, the Office informed appellant of the evidence needed to
establish her claim. It advised her to submit details regarding the employment duties or
exposures she believed caused or contributed to her claimed condition. It also requested a
comprehensive medical report from a treating physician, which listed symptoms, a diagnosis and
an opinion as to the cause of appellant’s diagnosed condition.
In statements dated May 8, 22 and 29, 2008, appellant described her employment duties,
which involved throwing, sorting, reaching, lifting, bending, pulling, pushing and overhead
activities. Since November 2007 she experienced pain on the right side of her neck and right
shoulder which became progressively worse. Appellant submitted medical documentation dated
1980, 1985 and 1986 together with medical records from Dr. Kenneth E. Mayeda, a Boardcertified family practitioner. In a May 7, 2008 physician’s initial report, Dr. Mayeda noted that
appellant threw parcels, cased flats and letters, put parcels in overhead tubs and did hand stamps.
He listed right shoulder pain and questionable right cervical radiculopathy. Dr. Mayeda
indicated that appellant’s right shoulder pain and questionable right cervical radiculopathy was
probably caused by her work duties. In a May 15, 2008 progress note, he assessed right shoulder
pain and questionable right cervical radiculopathy and advised her conditions were probably
related to overuse at work. Dr. Mayeda noted there could be some rotator cuff tendinopathy, and
possible right cervical radiculopathy and provided work restrictions. On May 28, 2008 he
diagnosed right shoulder and right neck pain and provided work restrictions on overhead work,
pushing and pulling through June 30, 2008.
In a July 10, 2008 decision, the Office denied appellant’s claim finding that the medical
evidence was not sufficient to establish causal relationship.
On November 17, 2008 appellant requested reconsideration. She noted physical therapy
since July and that she saw a neurologist for diagnostic testing. The August 26, 2008
electromyogram (EMG) and nerve conduction velocity (NCV) studies listed minimal abnormal
findings suggestive of right mid-cervical radiculopathy. The involved nerve root could not be
localized. In June 17 and July 3, 2008 progress notes, Dr. Mayeda provided an assessment of
right neck/shoulder pain and questionable radicular symptoms. He indicated that her work
restrictions should continue. On July 24, 2008 Dr. Mayeda listed myofascial pain syndrome of
the neck which he opined was probably related to a chronic repetitive injury and previous
problems with right shoulder pain, which he opined were probably related to a strain. He noted
there was some concern about a cervical radiculopathy in the past. In an August 12, 2008 duty
status report, Dr. Mayeda provided a diagnosis of questionable right cervical radiculopathy.

2

In a February 11, 2009 decision, the Office denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant further merit review.1
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim, including the fact that an injury was
sustained in the performance of duty as alleged,3 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.5
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to claimant’s diagnosed
condition. To be of probative value, 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 factors identified by the claimant.6
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish a causal relationship.7

1

Appellant submitted additional evidence after the Office’s February 11, 2009 decision and on appeal to the
Board. However, the Board may not consider evidence that was not before the Office at the time it rendered its final
decision or for the first time on appeal. 20 C.F.R. § 501.2(c). Appellant may submit such evidence to the Office
with a formal request for reconsideration pursuant to 5 U.S.C. § 8128.
2

5 U.S.C. §§ 8101-8193.

3

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). When an employee
claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish that he
experienced a specific event, incident or exposure occurring at the time, place and manner alleged. He must also
establish that such event, incident or exposure caused an injury. See also 5 U.S.C. § 8101(5) (injury defined); 20
C.F.R. § 10.5(q) and (ee) (2002) ( Occupational disease or Illness and Traumatic injury defined).
4

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

5

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).

6

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 4 at 218.

3

ANALYSIS -- ISSUE 1
The record supports that appellant’s work duties as a mail distribution clerk included
throwing, sorting, reaching, lifting, bending, pulling, pushing and overhead activities. The
Office denied her claim due to the lack of medical evidence establishing that she sustained an
injury as a result of her work activities.
Dr. Mayeda did not provide firm medical diagnoses of appellant’s condition. He noted
that she had right shoulder pain, neck pain and questionable right cervical radiculopathy.8
Dr. Mayeda also noted possible rotator cuff tendinopathy. On May 7, 2008 he advised that
appellant’s right shoulder pain and possible cervical radiculopathy were probably related to her
work duties. In a May 15, 2008 report, Dr. Mayeda stated that they were probably related to
overuse at work. While these reports provide some general support for causal relationship, he
addressed causal relation in speculative terms. The Board has held that medical opinions which
are speculative or equivocal in character are of diminished probative value.9 Dr. Mayeda’s
reports are insufficient to establish appellant’s claim as they fail to provide a definitive diagnoses
or a rationalized opinion on the causal relationship of her condition to her work duties.
Dr. Mayeda did not explain the reasons how appellant’s particular employment activities caused
or aggravated the diagnosed medical conditions. The other medical evidence submitted predates
appellant’s claim and is not relevant to her claimed neck and right shoulder conditions.
Appellant failed to submit medical evidence supporting that the employment incidents
caused a specific injury.
LEGAL PRECEDENT -- ISSUE 2
The Act10 provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.11 The employee shall exercise
this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the application for reconsideration.12
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously

8

Robert Broome, 55 ECAB 339, 342 (2004) (pain is generally considered a symptom, not a compensable medical
diagnosis).
9

Jimmie H. Duckett, 52 ECAB 332 (2001).

10

5 U.S.C. § 8101 et seq.

11

Id. at § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

12

20 C.F.R. § 10.605.

4

considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.13
A request for reconsideration may be granted if the Office determines that the employee
has presented evidence or argument that meets at least one of these standards. If reconsideration
is granted, the case is reopened and the case is reviewed on its merits. Where the request fails to
meet at least one of these standards, the Office will deny the application for reconsideration
without reopening the case for a review on the merits.14
ANALYSIS -- ISSUE 2
Appellant’s November 17, 2008 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law. She did
not advance a relevant legal argument not previously considered by the Office. Appellant is not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(2).
Appellant did not submit relevant and pertinent new evidence not previously considered
by the Office. The additional reports from Dr. Mayeda, while new, are not relevant. In the
June 17 and July 3, 2008 progress notes, Dr. Mayeda did not provide any opinion on causal
relation. On July 24, 2008 he provided an assessment of myofascial pain syndrome of the neck
probably related to chronic repetitive injury and previous problems with right shoulder pain
probably related to a strain. This report is essentially duplicative of his May 7 and May 15, 2008
reports, previously of record, which addressed causal relationship in the same manner. Evidence
that repeats or duplicates evidence already in the case record does not constitute a basis for
reopening a claim for merit review. The Office properly determined that this evidence did not
constitute a basis for reopening the case for further merit review.15
Appellant also submitted an EMG/nerve conduction study and a physical therapy report.
This information, while also new, is not relevant to the issue of whether appellant sustained an
injury causally related to factors of her federal employment. The diagnostic testing is not
relevant as it does not address the question of causal relationship. The report from a physical
therapist is not considered competent evidence pursuant to the Act and, thus, would not be
relevant to the underlying medical issue.16
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her November 17, 2008 request for reconsideration.

13

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

14

Id. at § 10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

15

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

16

George H. Clark, 56 ECAB 162 (2004). See 5 U.S.C. § 8101(2).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing her claim
for an occupational disease. The Board further finds that the Office properly denied appellant’s
request for reconsideration without conducting a merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2009 and July 10, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 24, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 08-1006
Issued: September 3, 2008

Case Submitted on the Record

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

JURISDICTION
On February 19, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 10, 2007 which denied his traumatic injury
claim. He also filed a timely appeal from the October 5, 2007 nonmerit decision which denied
his request for reconsideration.1 Pursuant to 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 sustained a traumatic injury in the performance of
duty; and (2) whether the Office properly refused to reopen appellant’s claim for further review
of the merits pursuant to 5 U.S.C. § 8128(a).

1

The record includes evidence received after the Office issued the October 5, 2007 decision. The Board cannot
consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c) (2004).

FACTUAL HISTORY
On March 21, 2007 appellant, then a 49-year-old carrier technician, filed a traumatic
injury claim alleging that on February 12, 2007 while sitting at a table he got up to answer the
telephone and hit his left knee on the broken table resulting in swelling and a complex left knee
meniscal tear.
On April 6, 2007 the Office informed appellant that the evidence received was
insufficient to support his claim and that additional information was needed, specifically a
physician’s opinion as to how appellant’s injury resulted in a diagnosed condition. No
information was received.
On May 10, 2007 the Office denied appellant’s traumatic injury claim. It accepted that
the claimed events occurred but found that there was no medical evidence of a diagnosed
condition connected to the event.
On June 26, 2007 appellant requested reconsideration and submitted additional
information. In a February 20, 2007 progress note, Dr. Craig M. Thomas2 noted that appellant
hit his right knee and leg at work about a week and a half before and his pain symptoms had not
subsided. He found a moderate-sized effusion in the right knee and diagnosed derangement of
posterior horn of medial meniscus but did not identify which knee. In a March 2, 2007 letter,
Dr. Ramin M. Jeraili, Board-certified in orthopedic surgery, examined appellant’s right knee in
connection with a September 2003 twisting injury while at work and provided an impairment
rating. A March 8, 2007 magnetic resonance imaging (MRI) scan report diagnosed complex
tears of the extreme posterior medial meniscus of the left knee. In a March 26, 2007 progress
note, Dr. Thomas reported that appellant had hit his left knee and leg at work about a week and a
half before and that his pain symptoms had not subsided since then. He noted that appellant had
right knee pain medially. Dr. Thomas noted upon inspection that appellant’s left knee had a
moderate-sized effusion and diagnosed derangement of posterior horn of medial meniscus. In an
April 5, 2007 operative report, he described the procedure performed on the lower left extremity
which consisted of a debridement of a tear of the medial, posteromedial horn, debridement of the
lateral meniscus, and repair of a tear of the medial horn, chondromalacia and fraying lateral
meniscus.
In an October 5, 2007 nonmerit decision, the Office denied appellant’s request for
reconsideration and refused to reopen the case for merit review on the grounds that no new and
relevant evidence was submitted nor were any new legal arguments made.
LEGAL PRECEDENT -- ISSUE1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
2

Could not verify board status.

3

5 U.S.C. §§ 8101-8193.

2

was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition,
for which compensation is claimed are causally related to the employment injury.4 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office 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 to be established is that the employee
actually experienced the employment incident that is alleged to have occurred.6 The second
component is whether the employment incident caused a personal injury.7 Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion
evidence.8
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained a left knee condition when he stood up and hit his left
knee and leg on a table on February 12, 2007. The Office accepted that the February 12, 2007
employment incident occurred as alleged. However, appellant did not submit any medical
evidence to support his claim. In order to satisfy the second component that the employment
incident caused a personal injury appellant must submit medical evidence demonstrating both
that he sustained a condition and that this condition was caused by the employment incident.
Appellant had not submitted medical evidence therefore he has not satisfied the second
component necessary to establish fact of injury. Neither the mere fact that a disease or condition
manifests itself during a period of employment nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish a causal
relationship.9 The Board finds that appellant has failed to submit sufficient medical evidence to
support his claim.

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

8

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, supra note 5.
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a reasonable degree
of medical certainty and must be supported by medical rationale, explaining the nature of the relationship between
the diagnosed condition and claimant’s specific employment factors. Id.
9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

3

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,
the Office’s regulations provide that the application for reconsideration, including all supporting
documents, must set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by the Office; or (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.10
Section 8128(b) provides that, when an application for reconsideration does not meet at
least one of the three requirements enumerated under section 10.606(b)(2), the Office will deny
the application for reconsideration without reopening the case for review on the merits.11
Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary
value and does not constitute a basis for reopening a case.12 Likewise, evidence that does not
address a particular issue involved does not constitute a basis for reopening a case.13
ANALYSIS -- ISSUE 2
In the instant case, appellant has not met any of the criteria for reopening his case for
review of the merits. Merit review was denied by the Office on the grounds that he did not
submit new and relevant medical evidence or raise any new legal argument. Appellant did
submit medical evidence, but evidence is only considered to be new and relevant if it addresses
the issue of the case. The issue in this case is whether his employment incident, hitting his knee
on a table, caused a personal injury. Appellant submitted reports from Dr. Thomas and
Dr. Jebraili and an MRI scan report. While the evidence establishes that he has a derangement of
posterior horn of the medial meniscus and tears of the extreme posterior medial meniscus none
of the reports offer an opinion as to the cause of these conditions. 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.14 To establish causal relationship, appellant must
submit a physician’s report in which the physician reviews the employment factors identified by
appellant as causing his condition and, taking these factors into consideration as well as findings
upon examination, state whether the employment injury caused or aggravated the diagnosed
conditions and present medical rationale in support of his or her opinion.15 As none of the
reports offer an opinion on causal relationship they are not considered to be new and relevant
evidence to require the Office to review the merits of the case. Additionally appellant did not
provide any new legal arguments not previously considered by the Office, nor show that the
10

20 C.F.R. § 10.606(b)(2)(i-iii).

11

20 C.F.R. § 10.606(b)(2).

12

Helen E. Paglinawan, 51 ECAB 407, 591 (2000).

13

Kevin M. Fatzer, 51 ECAB 407 (2000).

14

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

15

D.D., 57 ECAB 734 (2006), Calvin E. King, 51 ECAB 394 (2000).

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Office incorrectly applied a specific point of law. As he has not met any of the requirements for
reopening his case for merit review under section 8128(a) of the Act, the Office properly denied
reconsideration of his case on the merits.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a traumatic injury in
the performance of duty. The Board also finds that the Office properly denied reconsideration on
the merits.
ORDER
IT IS HEREBY ORDERED THAT the October 5 and June 26, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 3, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5