United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
DEPARTMENT OF THE AIR FORCE,
KELLY AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 08-1472
Issued: March 17, 2009

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 24, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ May 3, 2007 merit decision, denying authorization for medical
equipment and a January 28, 2008 nonmerit decision, denying her request for reconsideration.
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 the Office properly denied authorization for appellant’s
request for an adjustable car seat and bed, a car with an automatic transmission, rails in her
bathroom and other rooms in her house and a Jacuzzi whirlpool bathtub; and (2) whether the
Office properly denied appellant’s request for further merit review pursuant to 5 U.S.C.
§ 8128(a).

FACTUAL HISTORY
This case has previously been before the Board. In a May 26, 1993 decision, the Board
affirmed the Office’s May 31, 1991 and January 16, 1992 decisions, which found that appellant
did not sustain any disability commencing December 19, 1990 causally related to her accepted
May 6, 1982 employment injury or to factors of her employment. It also affirmed the Office’s
April 3, 1992 decision, denying her request for reconsideration.1 By order dated September 20,
1993, the Board denied appellant’s petition for reconsideration on the grounds that it failed to
establish any error of fact or law in the May 26, 1993 decision.2 The facts and the history
relevant to the present appeal are set forth.
In a February 19, 2004 letter, appellant requested that the Office authorize an adjustable
driver’s car seat and bed, a car with an automatic transmission and a bathroom equipped with
handicap rails and a whirlpool bathtub due to her employment-related conditions.
By letter dated March 11, 2004, the Office requested that appellant submit a medical
report from an attending physician detailing the modifications that should be made to her car and
home as they related to her accepted employment-related lumbar condition.
In reports dated April 19 and June 7, 2004, Sharon Hatch, a physician’s assistant for
Dr. M. David Dennis, an attending Board-certified orthopedic surgeon, requested that the Office
authorize an adjustable car seat and bed, an automatic car transmission, guard rails in appellant’s
bathroom and other areas of her house and a whirlpool bathtub. She diagnosed lumbar post
fusion and chronic lumbar pain syndrome. In a June 21, 2004 prescription, Dr. Dennis also
recommended a Jacuzzi whirlpool tub and electronic adjustable bed for appellant’s lumbar post
fusion and chronic lumbar pain syndrome.
By letter dated October 20, 2004, the Office requested that appellant submit additional
medical evidence, including a report from her attending physician describing the basic
equipment needed and medical reasons for the equipment, the specific goals or benefits expected
from the equipment, how often she would be using the equipment and the expected duration of
its use. Appellant was afforded 30 days to submit the requested evidence. She did not respond.
By decision dated December 10, 2004, the Office denied appellant’s request for an
adjustable driver’s car seat and bed, rails in her bathroom and other rooms in her house and a
whirlpool bathtub. It found that she failed to submit sufficient medical evidence to establish that
the requested equipment was warranted.
1

Docket No. 92-1233 (issued May 26, 1993). On May 12, 1982 appellant, then a 27-year-old data transcriber,
filed a traumatic injury claim alleging that on May 6, 1982 she injured her left leg and bruised her right hip when she
slipped and fell at work. By letter dated July 26, 1982, the Office accepted the claim for right leg and back strain. It
authorized a laminectomy, decompression and discectomy of L5 and a bilateral lateral gutter fusion of L5-S1 with
autogenous iliac crest bone on the right posterior iliac crest, which were performed on February 7, 1984.
Subsequently, the Office accepted appellant’s claim for displacement of lumbar intervertebral disc and herniated
nucleus pulposus at L5-S1. It paid appellant appropriate compensation. By decision dated March 14, 2002, the
Office granted appellant a schedule award for a 25 percent impairment of each lower extremity.
2

Docket No. 92-1233 (issued September 20, 1993).

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Following the issuance of the December 10, 2004 decision, the Office received
Dr. Dennis’ December 1, 2004 report. Dr. Dennis recommended a Jacuzzi tub because the warm
soothing whirlpool helped appellant tremendously with the aches and spasms which contributed
to her disability. He stated that the tub would be more cost effective than a health spa
membership which was not an option for appellant as she had limitations with ambulation.
Dr. Dennis indicated that appellant walked with the assistance of a cane and had a limp due to
severe weakness in both lower extremities. He recommended an adjustable bed because
appellant experienced trouble with her lower extremities due to edema and weakness.
Dr. Dennis opined that she was totally and permanently disabled.
In a December 17, 2004 letter, appellant requested reconsideration of the Office’s
December 10, 2004 decision. She submitted the rental cost for a motor scooter.
By decision dated December 16, 2005, the Office vacated the December 10, 2004
decision. It found that Dr. Dennis’ recommendation regarding durable medical equipment
required further review and processing prior to the issuance of a formal decision.
On February 8, 2006 Dr. Dennis prescribed an electric wheelchair with an elevating leg
rest for appellant’s postsurgery lumbar condition. In a March 2, 2006 report, he noted that
appellant initially sustained a work-related back injury in February 1992, which required
multiple surgeries resulting in permanent back pain and a limp due to severe weakness in both
lower extremities. Appellant encountered increasing problems with daily living activities and
extremely limited movement. Dr. Dennis stated that the cane appellant used was no longer
adequate or practical for her mobility and support. He stated that a motorized wheelchair would
give her a more mobile lifestyle and peace of mind about not having to worry about falling and
reinjuring herself. Dr. Dennis stated that the wheelchair would definitely accommodate
appellant’s medical condition. He reiterated his prior opinion that she was totally and
permanently disabled.
On June 28, 2006 Dr. Ronald Blum, an Office medical adviser, reviewed the case record.
He advised that the requested durable medical equipment was not medically warranted.
Dr. Blum noted that the use of a motorized wheelchair was not indicated unless appellant could
not use her upper extremities to propel a standard wheelchair. He further stated that a car with
an adjustable seat and automatic transmission were not likely to cure, give relief or shorten the
time of her disability. Dr. Blum related that the use of handrails could be accomplished with the
use of furniture and a walker around the house. An adjustable bed could be accomplished with
the judicious use of pillows. Regarding a whirlpool tub, Dr. Blum stated that the same results
could be achieved with the use of a warm bath. He stated that the addition of agitation of the
water did not add to the therapeutic value of moist heat.
By decision dated August 7, 2006, the Office denied authorization for the requested
medical equipment pursuant to 5 U.S.C. § 8103 based on Dr. Blum’s June 28, 2006 opinion. In a
September 6, 2006 letter, appellant requested a review of the written record by an Office hearing
representative.
By decision dated January 4, 2007, an Office hearing representative affirmed the
December 10, 2004 decision. The hearing representative found that the evidence failed to

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establish the requested Jacuzzi, motorized wheelchair, mobility railing and adjustable bed and
driver’s car seat were medically necessary. In a letter dated February 2, 2007, appellant
requested reconsideration.
In a January 3, 2007 report, Dr. Dennis stated that, on physical examination, appellant
demonstrated a right antalgic gait with a boot and used a cane for support. Appellant
experienced positive tenderness to palpation to the bilateral posterior superior iliac spines and
sciatic notch tenderness bilaterally. On neurological examination, Dr. Dennis found no gross
motor or sensory deficits. He reported slight reduction in global motor strength. Dr. Dennis
related that appellant could not heel/toe walk secondary to the boot on her right foot but related
that her sensation was intact throughout the lower extremities. He reiterated the diagnosis of
lumbar post fusion and chronic pain syndrome. Dr. Dennis also diagnosed a right foot injury.
By decision dated May 3, 2007, the Office denied modification of the January 4, 2007
decision. It found that the evidence failed to establish that the requested medical equipment was
necessary as a result of appellant’s accepted employment-related injuries.
In a December 18, 2007 letter, appellant requested reconsideration. She submitted forms
from the Texas Department of Aging and Disability Services, which found that she was eligible
for community attendant services pending medical approval, an emergency response system unit
and one daily home delivered meal, five days per week. A service agreement indicated that the
monitoring service was installed due to appellant’s poor ambulation.
By decision dated January 28, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it neither raised substantive legal questions nor included new
and relevant evidence and, thus, it was insufficient to warrant a merit review of its prior
decisions.
LEGAL PRECEDENT -- ISSUE 1
Section 8103 of the Federal Employees’ Compensation Act3 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of the monthly compensation.4
In interpreting section 8103 of the Act, the Board has recognized that the Office has
broad discretion in approving services provided under the Act. The Office has the general
objective of ensuring that an employee recovers from her injury to the fullest extent possible in
the shortest amount of time. It has broad administrative discretion in choosing means to achieve
this goal. The only limitation on the Office’s authority is that of reasonableness.5 Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
3

5 U.S.C. § 8101 et seq.

4

5 U.S.C. § 8103.

5

Dr. Mira R. Adams, 48 ECAB 504 (1997).

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judgment or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.6
In order to be entitled to reimbursement for medical expenses, a claimant must establish
that the expenditures were incurred for treatment of the effects of an employment-related injury
by submitting rationalized medical evidence that supports such a connection and demonstrates
that the treatment is necessary and reasonable.7 While the Office is obligated to pay for
treatment of employment-related conditions, the employee has the burden of establishing that the
expenditure is incurred for treatment of the effects of an employment-related injury or
condition.8 Proof of causal relation must include rationalized medical evidence.9
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained employment-related right leg and back
strain, displacement of lumbar intervertebral disc and herniated nucleus pulposus at L5-S1 and
authorized a laminectomy, decompression and discectomy of L5 and a bilateral lateral gutter
fusion of L5-S1 with autogenous iliac crest bone on the right posterior iliac crest. Appellant
requested authorization for an adjustable driver’s car seat and bed, a car with an automatic
transmission, handicap rails in her bathroom and other areas of her house, a Jacuzzi whirlpool
bathtub and an electric wheelchair. She has the burden of proof to establish that the Office
abused its discretion by denying authorization for the equipment she requested.
The prescription notes of Dr. Dennis recommended a Jacuzzi whirlpool tub, an adjustable
bed and electric wheelchair for appellant’s lumbar post fusion and chronic lumbar pain
syndrome. His December 1, 2004 report stated that the warm soothing Jacuzzi whirlpool tub
would help appellant tremendously with the aches and spasms which contributed to her
disability. Dr. Dennis advised that the tub would be more cost effective than a health spa
membership, which was not an option for appellant as she had limitations with ambulation. He
stated that she walked with the assistance of a cane and had a limp due to severe weakness in
both lower extremities. Dr. Dennis recommended an adjustable bed because appellant
experienced problems with her lower extremities due to edema and weakness. On March 2,
2006 he stated that a motorized wheelchair would also provide her a more mobile lifestyle and
peace of mind with not having to worry about falling and reinjuring herself. Dr. Dennis opined
that the wheelchair would definitely accommodate appellant’s work-related condition. While he
recommended the whirlpool tub, adjustable bed and motorized wheelchair for appellant’s chronic
lumbar pain syndrome and edema, the Board notes that the Office has not accepted these
conditions as employment related. Further, Dr. Dennis did not fully explain how the whirlpool
tub, adjustable bed or motorized wheelchair would cure, give relief or reduce the degree or
period of appellant’s disability. He did not explain why appellant’s employment-related
6

Daniel J. Perea, 42 ECAB 214 (1990).

7

See Debra S. King, 44 ECAB 203 (1992).

8

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

9

Id.; Bertha L. Arnold, 38 ECAB 282 (1986).

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accepted conditions required medical treatment which could only be accommodated by the
purchase of this equipment. The Board has held that an opinion without supporting rationale is
of diminished probative value.10 To the extent that Dr. Dennis stated that appellant worried
about falling and reinjuring herself, the Board has held that fear of future injury is not
compensable under the Act.11 Moreover, he did not provide any opinion as to why appellant
required a car with an adjustable seat and automatic transmission. The Board finds that
Dr. Dennis’ opinion is insufficient to establish that the requested equipment was medically
necessitated by appellant’s accepted employment-related conditions.
Dr. Blum, an Office medical adviser, opined that the requested medical equipment was
not medically warranted. He explained that use of a motorized wheelchair was not necessary
unless appellant was unable to use her upper extremities to propel a standard wheelchair. The
Board notes that there is no evidence of record establishing that appellant could not use her upper
extremities. Dr. Blum explained that a car with an adjustable seat and automatic transmission
were not likely to cure, give relief or shorten the time of appellant’s disability. He related that,
instead of handrails, appellant could place furniture or use a walker around the house. Dr. Blum
stated that a judicious use of pillows would serve the purpose of an adjustable bed. He advised
that the use of a warm bath would produce the same results as a whirlpool tub, noting that the
addition of water agitation did not add to the therapeutic value of moist heat. The Board finds
that Dr. Blum provided a rationalized explanation for why the requested medical equipment was
not necessary.12 Therefore, the Board finds that, under these circumstances, the Office acted
within its discretion under section 8103(a) of the Act to deny authorization of appellant’s request
for an adjustable driver’s car seat and bed, an automatic car transmission, handicap rails in her
bathroom and other areas of her house, a Jacuzzi whirlpool bathtub and an electric wheelchair.13
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 of the Act,14
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.15 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.16 When a claimant fails to meet one of the above
10

Willa M. Frazier, 55 ECAB 379 (2004).

11

See Andy J. Paloukos, 54 ECAB 712 (2003); Calvin E. King, 51 ECAB 394 (2000).

12

Cathy B. Millin, 51 ECAB 331 (2000).

13

Thomas Lee Cox, 54 ECAB 509 (2003); Stella M. Bohlig, 53 ECAB 341 (2002).

14

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
15

20 C.F.R. § 10.606(b)(1)-(2).

16

Id. at § 10.607(a).

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standards, the Office will deny the application for reconsideration without reopening the case for
review of the merits.
ANALYSIS -- ISSUE 2
In a December 18, 2007 letter, appellant disagreed with the Office’s May 3, 2007
decision denying authorization for an adjustable driver’s car seat and bed, an automatic car
transmission, handicap rails in her bathroom and other areas of her house, a Jacuzzi whirlpool
bathtub and an electric wheelchair. The relevant issue in the case, whether the Office abused its
discretion by denying authorization for the stated equipment, is medical in nature.
The notification forms of the Texas Department of Aging and Disability Services stated
that appellant was eligible for community attendant services pending medical approval, an
emergency response system unit and one daily home delivered meal, five days per week. The
service agreement indicated installment of the monitoring service due to appellant’s poor
ambulation. However, this evidence is not relevant to the issue of whether the Office abused its
discretion by denying authorization for an adjustable driver’s car seat and bed, an automatic car
transmission, handicap rails in appellant’s bathroom and other areas of her house, a Jacuzzi
whirlpool bathtub and an electric wheelchair. The Board has held that the submission of
evidence which does not address the particular issue involved in the case does not constitute a
basis for reopening the claim.17 The state notification forms regarding appellant’s eligibility for
disability services and monitoring service agreement are not relevant to this claim.
The evidence submitted by appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or constitute relevant and pertinent new evidence not previously considered by the
Office. As she did not meet any of the necessary regulatory requirements, the Board finds that
she is not entitled to further merit review.18
CONCLUSION
The Board finds that the Office properly denied authorization for appellant’s request for
an adjustable driver’s car seat and bed, automatic car transmission, rails in her bathroom and
other rooms in her house and a Jacuzzi whirlpool bathtub. The Board further finds that the
Office properly denied appellant’s request for a merit review of her claim pursuant to 5 U.S.C.
§ 8128(a).

17

D. Wayne Avila, 57 ECAB 642 (2006).

18

See 20 C.F.R. § 10.608(b); Richard Yadron, 57 ECAB 207 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the January 28, 2008 and May 3, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: March 17, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
TENNESSEE VALLEY AUTHORITY,
KINGSTON FOSSIL PLANT, Harriman, TN,
Employer
__________________________________________

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

Docket No. 16-0302
Issued: April 14, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 8, 2015 appellant filed a timely appeal from a September 10, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than 15
percent left monaural hearing loss.
FACTUAL HISTORY
On July 29, 2014 appellant, then a 55-year-old manager of operations, filed an
occupational disease claim (Form CA-2) alleging that he sustained hearing loss and tinnitus
causally related to noise exposure in the course of his federal employment. He did not stop
work.
1

5 U.S.C. § 8101 et seq.

On September 11, 2014 at the request of the employing establishment an audiologist
provided the results of hearing tests performed by the employing establishment from 1984 to
2012.
On September 16, 2014 OWCP referred appellant, together with a statement of accepted
facts describing his noise exposure at the employing establishment from 1979 to the present, to
Dr. Joseph A. Motto, a Board-certified otolaryngologist, for a second opinion examination.
In a report dated October 8, 2014, Dr. Motto noted that appellant had hearing loss at high
frequencies in his left ear at the time he began working for the employing establishment. He
discussed appellant’s complaints of tinnitus bilaterally over the past five years. Audiometric
testing conducted for Dr. Motto on October 8, 2014 revealed decibel (dB) losses for the left ear
at the 500, 1,000, 2,000, and 3,000 hertz (Hz) of 20, 25, 30, and 65 dBs, respectively.
Audiometric testing for the right ear at the same levels revealed dB losses of 15, 20, 20, and 45,
respectively. Dr. Motto diagnosed sloping mild-to-severe sensorineural hearing loss due at least
in part to noise exposure at work. He advised that at 4,000 Hz appellant’s left-sided hearing loss
was no more than expected at his age, but that his right-sided hearing loss “exceed[ed] age
expected hearing loss at all frequencies. Dr. Motto determined that only the hearing loss on the
right side was causally related to noise exposure at work and recommended authorization for a
hearing aid on the right side. He provided a graph accompanying his report comparing the
expected hearing loss between ages 19 and 55 with appellant’s actual hearing loss at the
frequency levels of 500, 1,000, 2,000, 3,000, 4,000, and 6,000 cycles per second.
On October 21, 2014 an OWCP medical adviser reviewed Dr. Motto’s report and
audiometric test results. For the right ear, at 500, 1,000, 2,000, and 3,000 Hz loss added to the
dB losses of 15, 20, 20, and 45 to equal 100. He divided 100 dB by 4 to find that appellant had
an average hearing loss of 25 dBs. The medical adviser then subtracted the fence of 25 dBs to
find a balance of zero, which when multiplied by 1.5 yielded a zero percent hearing loss in the
right ear. For the left ear, he added the dB losses of 20, 25, 30, and 65 to find 140, or an average
loss of 35 dBs. After subtracting a fence of 25 decibels, the medical adviser multiplied the
remaining balance of 10 by 1.5 to find a 15 percent left monaural hearing loss. He opined that
OWCP should authorize hearing aids only for the left side. The medical adviser diagnosed
bilateral sensorineural hearing loss and concluded that appellant had a 15 percent monaural
hearing loss on the left side causally related to his employment noise exposure.
On November 13, 2014 OWCP accepted appellant’s claim for bilateral sensorineural
hearing loss and authorized hearing aids.
On December 9, 2014 appellant filed a claim for a schedule award (Form CA-7).
In a telephone call dated December 30, 2014, OWCP informed a healthcare provider that
it had only authorized hearing aids on the left side.
By decision dated January 8, 2015, OWCP granted appellant a schedule award for 15
percent left monaural hearing loss. The period of the award ran for 7.8 weeks from October 8 to
December 1, 2014.

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On January 25, 2015 appellant requested a review of the written record. He submitted a
January 15, 2015 evaluation from an audiologist describing the results of an audiogram and
requested authorization for hearing aids for the right as well as the left ear.
By decision dated July 20, 2015, an OWCP hearing representative set aside the
January 8, 2015 decision. She found that the medical adviser recommended a schedule award
for 15 percent left-sided monaural hearing loss even though Dr. Motto found that the hearing loss
on the left was not employment related. The hearing representative determined that the medical
adviser failed to explain his disagreement with Dr. Motto. She questioned whether OWCP
should reconsider its acceptance of the claim for bilateral hearing loss.
By letter dated August 13, 2015, OWCP requested clarification from the medical adviser
as to the percentage of percent permanent impairment for the left and right ear and whether there
was a preexisting permanent impairment of the right or left ear.
On August 18, 2015 an OWCP medical adviser noted that Dr. Motto had not provided an
impairment rating for either ear. He further indicated that he did not find preexisting right ear
damage. The medical adviser discussed Dr. Motto’s finding that appellant had hearing loss due
to noise exposure at work only in the right ear, but opined that the graph accompanying his
report “demonstrates that the actual hearing difference between age 55 and age 19 greatly
exceeds the age expected hearing loss between age 55 and age 19 in both ears at 1,000, 2,000,
and 3,000 Hz.” He noted that the values at 4,000 and 6,000 Hz were not relevant. The medical
adviser concluded, “In summary, this claimant does have a bilateral SNHL [sensorineural
hearing loss] that is due at least in part to his noise exposure during federal employment. The
right ear loss is not ratable, but the left is. While it is true that some left ear damage occurred
prior to [federal] employment, it is also true that additional damage due to noise exposure
occurred on the job.”
In a decision dated September 10, 2015, OWCP granted appellant a schedule award for a
15 percent monaural hearing loss in the left ear.
On appeal appellant argues that OWCP should authorize hearing aids in both ears.
LEGAL PRECEDENT
The schedule award provision of FECA,2 and its implementing federal regulations,3 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,

2

Id. at § 8107.

3

20 C.F.R. § 10.404.

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(A.M.A., Guides) as the uniform standard applicable to all claimants.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 dBs is deducted
because, as the A.M.A., Guides point out, losses below 25 dBs result in no impairment in the
ability to hear everyday speech under everyday conditions. The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard
for evaluating hearing loss.7
ANALYSIS
In a report dated October 8, 2014, Dr. Motto, an OWCP referral physician, diagnosed
bilateral sensorineural hearing loss. He opined that appellant had hearing loss in the right ear as
a result of noise exposure at work. Dr. Motto found, however, that the hearing loss in the left ear
at 4,000 Hz was not more than would be expected at his age, and thus determined that the leftsided hearing loss was not employment related. He recommended authorizing hearing aids on
the right side.
On October 21, 2014 an OWCP medical adviser properly applied OWCP’s standardized
procedures to the October 8, 2014 audiogram obtained by Dr. Motto. He found that testing of
the right ear at the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second revealed losses
of 15, 20, 20, and 45 dB, which he added to total 100. The medical adviser divided 100 dB by 4
to find an average loss of 25, from which he deducted the threshold fence of 25 dB to find a
balance of 0. He multiplied 0 by 1.5 to find a 0 percent monaural hearing loss on the right. For
the left ear, the medical adviser found that appellant had losses of 20, 25, 30, and 65 at the
frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, for a total of 140 dB and an
average loss of 35 dB. Subtracting the fence of 25 dB yielded a balance of 10 dB, which he
multiplied by 1.5 to find a 15 percent monaural loss.
On November 13, 2014 OWCP accepted that appellant sustained bilateral hearing loss
due to noise exposure. It also authorized hearing aids. On January 8, 2015 OWCP granted
appellant a schedule award for 15 percent left monaural hearing loss. However, in a decision
dated July 20, 2015, an OWCP hearing representative set aside the January 8, 2015 decision after
finding that the medical adviser did not explain his disagreement with Dr. Motto, who found the
hearing loss on the left side was not employment related.
4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

A.M.A., Guides 250.

7

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

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In a report dated August 18, 2015, the medical adviser related that he disagreed with
Dr. Motto’s finding that appellant’s left-sided hearing loss was not employment related. He
explained that his hearing loss at the 1,000, 2,000, and 3,000 Hz significantly exceeded that
expected due to age. The medical adviser further noted that values at 4,000 Hz were not used.
He concluded that appellant had some hearing loss on the left side prior to his federal
employment, but noise exposure at work had caused further damage. Based on the medical
adviser’s report, in a decision dated September 10, 2015, OWCP granted a schedule award for a
15 percent monaural loss of the left ear. There is no other medical evidence showing a greater
hearing loss under established OWCP procedures.8 The Board thus finds that appellant has no
more than 15 percent monaural hearing loss on the left side.
On appeal appellant contends that OWCP should authorize hearing aids for his right as
well as left ear. The Board notes that on November 13, 2014 OWCP authorized hearing aids
without indicating that the authorization is only for one side. Upon return of the case record,
OWCP should comply with this earlier decision and grant bilateral hearing aids.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 15
percent monaural hearing loss on the left side.

8

Appellant submitted an audiogram dated January 15, 2015, but as it was not certified by a physician it may not
form the basis of an impairment rating. See E.S., Docket No. 11-1724 (issued March 27, 2012).

5

ORDER
IT IS HEREBY ORDERED THAT the September 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 14, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, WESTVILLE POST
OFFICE, Westville, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0173
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On November 24, 2020 appellant, through counsel, filed a timely appeal from a June 1,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective November 22, 2019, as he no longer had
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.

disability or residuals causally related to his accepted December 1, 2006 employment injury; and
(2) whether appellant met his burden of proof to establish continuing disability or residuals
causally related to his accepted December 1, 2006 employment injury after November 22, 2019.
FACTUAL HISTORY
On December 8, 2006 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 1, 2006 he sustained a back injury when two dogs
attacked him from behind and he twisted his back while in the performance of duty. He stopped
work on the date of the claimed injury and returned to limited-duty work several months later.3
OWCP assigned OWCP File No. xxxxxx368 to the claim and accepted it for lumbar sprain and
lumbago.4
Appellant received treatment for his December 1, 2006 employment-related back injury
from several attending physicians, including Dr. David A. Bundens, a Board-certified orthopedic
surgeon, and Dr. Laura E. Ross, an osteopath and Board-certified orthopedic surgeon. X-rays of
appellant’s lumbar spine from December 21, 2006 contained an impression of degenerative
changes of the lumbar discs, predominately at L5-S1. On January 4 and 12, 2010 Dr. Bundens
indicated that appellant was performing his regular duties on a full-time basis with some
complaints of back discomfort. Appellant stopped work on June 19, 2010. In an October 14, 2013
report, Dr. Ross diagnosed lumbar herniation and radiculitis of the right leg.
OWCP engaged in extensive development of the medical evidence between 2013 and 2018,
including referral to three OWCP referral physicians and two impartial medical specialists.5 In a
June 29, 2018 report, Dr. Roy B. Friedenthal, a Board-certified orthopedic surgeon who served as
the second of the two impartial medical specialists, reported the findings of his May 17, 2018
physical examination and determined that appellant did not have any work-related residuals or
disability.6

3

OWCP paid appellant wage-loss compensation on the supplemental rolls for intermittent periods of disability
from work commencing December 11, 2009.
4

Under a separate claim, assigned OWCP File No. xxxxxx201, OWCP previously accepted that appellant sustained
a right wrist strain and right knee tenosynovitis when he pushed a plastic tub on September 29, 2000. Under another
separate claim, assigned OWCP File No. xxxxxx165, it accepted that he sustained a lumbar sprain related to carrying
telephone books on November 28, 2001. Appellant commenced working in a light-duty position on November 29,
2001 and returned to his regular duties on December 19, 2001. After a period of disability related to OWCPauthorized right wrist surgery performed on April 4, 2004 in connection with his claim under OWCP File No.
xxxxxx201, he returned to his regular duties in June 2005.
5

Commencing March 8, 2015, OWCP placed appellant on the periodic rolls and paid him wage-loss compensation
for total disability.
6

OWCP had determined that there was a conflict in the medical opinion evidence between Dr. Ross and
Dr. Andrew Newman, a Board-certified orthopedic surgeon who served as an OWCP referral physician. In a June 1,
2017 report, Dr. Newman determined that appellant’s December 1, 2006 employment injury had resolved. In a July 7,
2017 report, Dr. Ross opined that appellant continued to have residuals of the December 1, 2006 lumbar sprain and
that he was totally disabled.

2

In a July 30, 2018 report, Dr. Ross indicated that appellant’s current diagnosed conditions
that were causally related to the December 1, 2006 employment injury included multilevel lumbar
disc protrusions with herniations at L1-2 and L3-4 and disc bulges at multiple levels with annular
tears at L1-2, L3-4, and L4-5. She indicated that objective findings of the injury still existed,
including spasm in the lumbar spine. Dr. Ross advised that appellant was medically able to return
to work with restrictions of lifting no more than 10 pounds, and working no more than eight hours
at a time. She advised that appellant could sit for five hours in total, and stand for three hours
altogether with breaks.
In a March 6, 2019 notice, OWCP advised appellant that it proposed to terminate his wageloss compensation and medical benefits as he no longer had residuals or disability causally related
to his accepted December 1, 2006 employment injury. It informed appellant that the special weight
of the medical opinion evidence rested with the report of Dr. Friedenthal, the impartial medical
specialist. OWCP afforded appellant 30 days to submit evidence and argument challenging the
proposed action.
Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still
had bilateral spasms in his lumbar spine and indicated that his current work status was “out of
work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of
appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel
lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with
annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild
chondromalacia patella and joint effusion. Dr. Ross repeated her prior findings and noted, “[h]is
speciﬁc work-related condition has not resolved.” He indicated that appellant was medically able
to return to work with restrictions of lifting no more than 10 pounds and working no more than 8
hours at a time. Appellant was able to sit for 45 to 60 minutes continuously, stand for
approximately 30 minutes continuously, sit for five hours altogether, and stand for three hours
altogether with breaks. Dr. Ross differed with Dr. Friedenthal’s assessment that appellant merely
sustained a lumbar strain, as this is not what was noted on his magnetic resonance imaging (MRI)
scan of the lumbar spine. She disagreed with Dr. Friedenthal’s assessment that the aggravation of
appellant’s condition ceased when he returned to full-duty work three or four months after
December 1, 2006.
Appellant, through counsel, argued that Dr. Friedenthal’s June 29, 2018 report did not
contain adequate medical rationale in support of its conclusions and that all of the relevant medical
documents were not provided to Dr. Friedenthal for review.
In early-September 2019, OWCP determined that it would not pursue action based on the
Dr. Friedenthal’s opinion, which had been based on a physical examination conducted on
May 17, 2018.
OWCP then referred appellant, along with a statement of accepted facts (SOAF) and series
of questions, for a second opinion examination and evaluation with Dr. Stanley Askin, a Boardcertified orthopedic surgeon. It requested that he provide an opinion regarding whether appellant
continued to have residuals of his accepted December 1, 2006 employment injury.

3

In a September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical
history and reported the findings of his physical examination. He noted that appellant showed full
range of motion of his elbows, forearms, wrists, fingers, and thumbs, and that muscle function of
the trapezii, latissimus dorsi, pectoralis major, deltoids, triceps, wrist flexors, and wrist extensors
was intact bilaterally. Appellant reported that, when he moved his right wrist, there was pain in
the radial aspect of his forearm, but not over the wrist joint proper. Dr. Askin reported that the
Finkelstein’s test for de Quervain’s tendinitis and testing for the intersection syndrome were
negative for the respective conditions. He indicated that appellant reported pain in the radial aspect
of his right forearm, but that this was “a subjective report without objective manifestation.”
Straight-leg raising was negative to 90 degrees while seated and appellant’s low back muscles
relaxed appropriately on alternate leg stance from which it is concluded that there was no present
muscle spasm. Dr. Askin noted that appellant offered 80 degrees of forward flexion and 10 degrees
of side-bending to each side, which was quite reasonable for a 62-year-old person. Examination
of appellant’s knees revealed full range of motion and normal ligamentous function. Dr. Askin
opined that appellant ceased to have residuals of the accepted lumbar sprain and lumbago
conditions sustained on December 1, 2006, noting that he had no objective findings other than the
fact that he examined as a rather typical 62-year-old man. He indicated, “[appellant] does not have
any concurrent nonwork-related disability, apart from the fact that when a person is 62 years of
age he is not as physically capable as when he was 20 years of age, but that is a biologically
imposed consequence of senescence.” Dr. Askin advised that there was nothing identifiably
objective that would preclude appellant’s resumption of his employment activities.
By decision dated November 22, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date, as he no longer had residuals or disability
causally related to his accepted December 1, 2006 employment injury. It found that the weight of
the medical evidence rested with the opinion of Dr. Askin.
On December 2, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a December 9, 2019 duty status report (Form CA-17) from Dr. Scott
Fried, a Board-certified orthopedic surgeon, who diagnosed right wrist sprain/tenosynovitis and
recommended work restrictions. In a December 9, 2019 work capacity evaluation report (Form
OWCP-5c), he also recommended work restrictions. Appellant also submitted a functional
capacity evaluation (FCE) report, signed by Dr. Fried on December 6, 2019, which showed that
appellant could lift or carry up to 10 pounds.
During the hearing held on April 6, 2020, counsel argued that the weight of the medical
opinion evidence rested with the opinion of Dr. Ross who found continuing employment-related
residuals and disability.
By decision dated June 1, 2020, OWCP’s hearing representative affirmed the
November 22, 2019 decision.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.7 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 8 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation. 10 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical benefits, effective November 22, 2019.
The weight of the medical evidence is represented by the thorough, well-rationalized
opinion of Dr. Askin, the OWCP referral physician. The September 27, 2019 report of Dr. Askin
establishes that appellant had no residuals or disability due to his accepted December 1, 2006
employment injury after November 23, 2019.
In his September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical
history and reported the findings of his physical examination. He opined that appellant ceased to
have residuals of the accepted lumbar sprain and lumbago conditions sustained on December 1,
2006, noting that he had no objective findings other than the fact that he examined as a rather
typical 62-year-old man. Dr. Askin indicated, “[appellant] does not have any concurrent nonworkrelated disability, apart from the fact that when a person is 62 years of age he is not as physically
capable as when he was 20 years of age, but that is a biologically imposed consequence of
senescence.” He advised that there was nothing identifiably objective that would preclude
appellant’s resumption of his employment activities.
The Board has reviewed the opinion of Dr. Askin and finds that it has reliability, probative
value and convincing quality with respect to its conclusions regarding the relevant issue of
7

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
8

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
9

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361, 364 (1990).
11

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

5

continuing residuals/disability related to the December 1, 2006 employment injury. Dr. Askin
provided a thorough factual and medical history and accurately summarized the relevant medical
evidence. He provided medical rationale for his opinion by explaining that appellant had no
objective findings of the accepted lumbar sprain and lumbago.12
Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still
had bilateral spasms in his lumbar spine and indicated that his current work status was “out of
work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of
appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel
lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with
annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild
chondromalacia patella and joint effusion. Dr. Ross indicated that appellant sustained these
injuries due to the December 1, 2006 work-related incident and found that he still had ﬁndings
including spasm in the lumbar spine. She recommended work restrictions and noted, “[h]is
speciﬁc work-related condition has not resolved.”
The Board finds, however, that Dr. Ross’ reports are of limited probative value with respect
to OWCP’s termination action because it has not been accepted that appellant sustained her abovedetailed diagnosed conditions in connection with the December 1, 2006 employment injury.
Dr. Ross has not otherwise explained, with medical rationale, how such injuries were sustained by
appellant on December 1, 2006. The Board has held that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/level of disability has an employment-related cause.13 Therefore, these reports
are insufficient to support appellant’s claim that OWCP improperly terminated compensation.
As the evidence of record is insufficient to overcome the weight accorded to Dr. Askin, the
Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 2
When OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing residuals or disability after that date, causally related to the accepted
employment injury. 14 To establish causal relationship between the condition as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized

12

See W.C., Docket No. 18-1386 (issued January 22, 2019); D.W., Docket No. 18-0123 (issued October 4, 2018);
Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical evidence, of such factors
as a physician’s knowledge of the facts and medical history, and the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion).
13

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

14

See S.M., Docket No. 18-0673 (issued January 25, 2019); C.S., Docket No. 18-0952 (issued October 23, 2018);
Manuel Gill, 52 ECAB 282 (2001).

6

medical evidence based on a complete medical and factual background, supporting such causal
relationship.15
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
disability or residuals causally related to his accepted December 1, 2006 employment injury after
November 22, 2019.
After OWCP’s November 22, 2019 decision terminating appellant’s compensation
effective the same date, appellant submitted additional medical evidence , which he felt showed
that he was entitled to compensation after November 22, 2019 due to residuals of his December 1,
2006 employment injury. Given that the Board has found that OWCP properly relied on the
opinion of the OWCP referral physician, Dr. Askin, in terminating appellant’s compensation
effective November 22, 2019, the burden shifts to appellant to establish that he is entitled to
compensation after that date.
Appellant submitted a December 9, 2019 duty status report from Dr. Fried who diagnosed
right wrist sprain/tenosynovitis and recommended work restrictions. In a December 9, 2019 work
capacity evaluation report, Dr. Fried also recommended work restrictions. Appellant also
submitted an FCE report, signed by Dr. Fried on December 6, 2019, which showed that appellant
could lift or carry up to 10 pounds. The Board has reviewed the additional evidence submitted by
appellant and finds that it is not of sufficient probative value to establish that he had
residuals/disability related to his December 1, 2006 employment injury after November 22, 2019.
As noted above, it has not been accepted that appellant sustained a wrist injury on December 1,
2006 and none of these reports contains an opinion that appellant had residuals/disability due to
the accepted lumbar sprain or lumbago conditions. The Board has held that medical evidence that
does not offer an opinion regarding work-related residuals or disability is of no probative value on
the issue of causal relationship.16
As appellant has not submitted any rationalized medical evidence establishing tha t he had
employment-related disability or residuals after November 22, 2019, causally related to the
accepted December 1, 2006 employment injury, he 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(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical benefits, effective November 22, 2019. The Board further

15

Id.

16

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

7

finds that appellant has not met his burden of proof to establish continuing disability or residuals
causally related to his accepted December 1, 2006 employment injury after November 22, 2019.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

Alec J. Koromilas, 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
__________________________________________
A.W., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

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Appearances:
Robert A. Shaines, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1071
Issued: February 18, 2010

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 March 16, 2009 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated September 10, 2008 and January 14, 2009. Under 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 established that he sustained an injury to both
wrists on January 28, 2004 in the performance of his federal employment; and (2) whether the
Office properly denied merit review of the claim on January 14, 2009.
FACTUAL HISTORY
Appellant, a 46-year-old apprentice pipe fitter, filed a traumatic injury claim on
March 23, 2004. He alleged that on January 28, 2004 he fell from his bicycle and injured his
wrists as he was attempting to cross the railroad tracks adjacent to the employing establishment.
Appellant noted that the incident occurred at 3:05 p.m. His supervisor noted that he was leaving

work on that day when the alleged incident occurred. Appellant’s supervisor also noted that
appellant’s regularly scheduled hours were from 7:00 a.m. to 3:30 p.m.
In a statement dated April 9, 2004, appellant noted that the injury occurred after work
hours, as he rode his bike just outside CIA gate, #2, in front of the credit union.
By decision dated May 11, 2004, the Office denied the claim. It accepted that the
January 28, 2004 incident occurred, but found that appellant failed to submit sufficient medical
evidence to establish that the claimed medical condition resulted from the accepted event.
By letter dated August 23, 2004, appellant’s attorney requested reconsideration.
In a September 6, 2007 statement, the employing establishment’s human resources
specialist stated that appellant was on government-owned and maintained property on January 28,
2004 when he injured his wrists on his bicycle.
By decision dated January 18, 2008, the Office denied appellant’s claim but modified its
May 11, 2004 decision. It stated that it was not clear whether the claimant was injured while
engaged in activity reasonably incidental to the employment. The Office found that riding a
bicycle was not an activity reasonably incidental to his work activities after official working
hours. It noted the September 6, 2007 statement from the employing establishment’s human
resources director, which stated that it was unclear whether appellant was acting within the scope
of employment and asserted that no evidence that his presence on the premises at the time of
injury was required as a condition of his employment.
On May 31, 2008 appellant requested reconsideration.
In a February 5, 2008 report, received by the Office on June 24, 2008, Dr. Frank A. Graf,
Board-certified in orthopedic surgery and appellant’s treating physician, reviewed the history of
injury and noted that appellant had experienced bilateral carpal tunnel syndrome and mid-lower
back pain in addition to the January 28, 2004 work incident in which he injured both wrists. He
stated that appellant had hand symptoms, which diminished his functional capacities. Dr. Graf also
related that appellant’s low back pain affected his performance at work. He opined that appellant’s
bilateral hand condition was a work-related cumulative trauma disorder appropriately diagnosed as
carpal tunnel syndrome, despite the fact that his electromyelogram studies were negative. Dr. Graf
stated that due to these conditions appellant had been assigned to a light-duty job, working with
restrictions.
In a March 7, 2008 report, received by the Office on June 24, 2008, Dr. Graf reviewed the
January 18, 2008 Office decision. He indicated that appellant had required the use of a bicycle to
access his car at the employing establishment parking lot until recently, when he obtained
handicap license plates, which obviated the need to use a bicycle. Dr. Graf therefore opined that
appellant’s use of a bicycle to traverse the distance between the worksite and the parking lot on
January 28, 2004 represented an integral part of appellant’s workday at that time and an integral
part of his duty on that day.
In a statement received by the Office on June 3, 2008, appellant asserted that riding a
bicycle was a common and prevalent practice among employees at the employing establishment.
2

He stated that, due to the various medical conditions he had at that time, as noted by his treating
physicians, he required a bicycle to mitigate the discomfort he experienced walking from the
worksite to the parking lot. Appellant asserted that bicycles were an “indispensable” tool during
and after hours of employment and aided in the efficient operation of the employing
establishment. He stated that the employing establishment had previously provided bicycles to
its employees and that they continued to be a part of the employees’ workday.
In an August 5, 2008 statement, the employing establishment’s human resources specialist
responded to appellant’s statement. She denied that the employing establishment provided
appellant with a bicycle and asserted that there are no bicycles on their property.
By decision dated September 10, 2008, the Office denied modification of the January 18,
2008 Office decision.
On October 17, 2008 appellant requested reconsideration.
By decision dated January 14, 2009, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for disability or death
of an employee resulting from personal injury sustained while in the performance of duty.1 The
phrase sustained while in the performance of duty is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of performance.2 To arise out of employment, the injury must have a causal connection to
the employment, either by precipitation, aggravation or acceleration. Course of employment
relates to the elements of time, place and work activity: the injury must occur at a time when the
employee may reasonably be said to be engaged in his employer’s business, at a place where he
may reasonably be expected to be in connection with his employment, and while he was
reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto.3
As to employees having fixed hours and a fixed place of work, injuries occurring on the
premises while they are going to and from work before or after working hours or at lunchtime
are compensable.4 The course of employment for such employees embraces a reasonable
interval before and after official working hours while the employee is on the premises engaged in
1

5 U.S.C. § 8102(a).

2

This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
3

Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B. Barenkamp
(Joseph L. Barenkamp), 5 ECAB 228 (1952).
4

Emma Varnerin, M.D., 14 ECAB 253, 254 (1963); 1 Arthur Larson & Lex K. Larson, Larson, The Law of
Workers’ Compensation, Chapter 13 (June 2006).

3

preparatory or incidental acts. What constitutes a reasonable interval depends not only on the
length of time involved but also on the circumstances occasioning the interval and the nature of
the employee’s activity.5
The premises of the employer, as that term is used in workers’ compensation law, are not
necessarily coterminous with the property owned by the employer. They may be broader or
narrower and are dependent more on the relationship of the property to the employment than on
the status or extent of legal title.6 When the place of employment is a building, it is not
necessary that the employer own or lease the place where the injury occurred. It is sufficient if
the employer has some kind of right of passage, as in the case of common stairs, elevators,
vestibules, concourses, hallways, walkways, ramps, footbridges, driveways or passageways
through which the employer has something equivalent to an easement.7
ANALYSIS
Appellant had fixed hours and a fixed place of work. His injury is considered to have
arisen in the course of employment if it occurred: (1) on the premises; (2) a reasonable interval
after official working hours; and (3) while he was leaving work, or engaged in preparatory or
incidental acts.
Appellant has alleged that his injury occurred after work while he was riding a bicycle to
his car, on the premises of the employing establishment.
The Office denied his claim because it was unclear whether appellant was in the scope of
his employment at the time of injury and whether appellant’s presence on the premises was a
requirement or condition of employment. The evidence of record bearing on this issue is: (a)
appellant’s statements that the injury occurred at 3:05 p.m. while he was riding his bicycle to his
car; (b) the supervisor’s statement that appellant’s shift ended at 3:30 p.m.; (c) appellant’s
statement that the incident occurred just outside the CIA gates; and (d) the September 6, 2007
statement from the employing establishment’s human resources specialist indicating that appellant
was on government-owned and maintained property on January 28, 2004 when he injured his
wrists on his bicycle.
An injury is compensable if it occurs on the premises within a reasonable time after the end
of a work shift if the employee is doing something reasonably incidental to his employment.
The Office did not sufficiently develop this evidence. Two issues remain unresolved in
this case because the Office did not make adequate fact findings. First, if appellant’s shift ended
at 3:30 p.m. it is unclear why he was riding his bicycle to his car at 3:05 p.m. that afternoon. The
record is not clear exactly where he traveled from the time he left the building, intent on riding
his bicycle to his car, to the time he fell off of his bicycle while crossing the railroad tracks; nor
is the record clear how long this took. Secondly, while the employer indicated that the incident
5

Nona J. Noel, 35 ECAB 439 (1983); Larson § 21.06.

6

Wilmar Lewis Prescott, 22 ECAB 318, 320-21 (1971).

7

Larson § 13.04[3].

4

occurred on the premises, appellant’s statement indicates that the incident occurred outside the
“CIA gates.” The record contains no diagram of the building and the surrounding property,
including walkways, sidewalks, streets, parking lots and the position of the railroad tracks. The
Board will set aside the Office decisions denying appellant’s claim and remand the case for
further development.8 After such further development as may be necessary, the Office shall
issue an appropriate final decision on appellant’s his for compensation.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of
evidence is necessary.
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2009 and September 10, 2008
decisions of the Office of Workers’ Compensation Programs be set aside and the case remanded
to the Office for further development consistent with this opinion of the Board.
Issued: February 18, 2010
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

8

In light of the Board’s decision to remand, the case to the Office to determine whether appellant sustained an
injury in the performance of duty on January 28, 2004, the Board need not consider the Office’s January 14, 2009
nonmerit decision.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF THE ARMY, FORT
GEORGE G. MEADE, MD, Employer
__________________________________________

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

Docket No. 13-744
Issued: May 21, 2013

Case Submitted on the Record

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

JURISDICTION
On February 11, 2013 appellant filed a timely appeal of a January 31, 2013 Office of
Workers’ Compensation Programs’ (OWCP) merit decision terminating her wage-loss
compensation and medical benefits. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective January 31, 2013.
FACTUAL HISTORY
This case has previously been before the Board. On January 23, 1991 appellant, then a
39-year-old secretary, filed an occupational disease claim alleging left hand and arm pain from
1

5 U.S.C. § 8101 et seq.

typing in the performance of duty. OWCP accepted her claim for left hand sprain. On July 26,
1993 it accepted right carpal tunnel syndrome. On April 14, 1994 OWCP accepted left elbow
extensor tendinitis. Appellant underwent right carpal tunnel release on June 25, 1999. OWCP
terminated her wage-loss compensation and medical benefits in a decision dated April 27, 2000.
In an Order dated January 31, 2001,2 the Board granted a motion filed by the Director of OWCP
to set aside the April 27 and June 7, 2000 termination decisions and to remand the case to further
develop the medical evidence.
OWCP again terminated appellant’s wage-loss compensation and medical benefits
effective February 15, 2009 finding that the weight of the medical evidence rested with an
impartial medical examiner’s May 21, 2008 report. Appellant appealed this decision to the
Board. In a decision dated December 30, 2009,3 the Board found that there was a new conflict
between appellant’s physician, Dr. James E. Lowe, a Board-certified orthopedic surgeon, and
Dr. Robert M. Elkins, a Board-certified orthopedic surgeon, a prior impartial medical examiner,
on the issue of whether appellant had any continuing disability or medical residuals as a result of
her accepted employment injuries. The Board found that the physician utilized as the impartial
medical examiner was not selected through the appropriate process. The Board reversed the
January 29, 2009 decision.
By decision dated March 25, 2011, OWCP terminated appellant’s wage-loss
compensation and medical benefits finding that the weight of the medical evidence was
represented by the January 13, 2011 report of a second opinion physician, Dr. Edward Mulcahy,
a Board-certified orthopedic surgeon, who found that she had no disability or medical residuals
as a result of her accepted employment injuries. Appellant appealed this decision to the Board.
In a December 9, 2011 decision,4 the Board found an unresolved conflict of medical opinion
evidence between appellant’s physician, Dr. Lowe, and the physicians for OWCP, Dr. Mulcahy
and Dr. Elkins. The Board reversed the termination decision. The facts and the circumstances of
the case as set forth in the Board’s prior decisions are incorporated herein by reference.
In a letter dated January 23, 2012, OWCP referred appellant, a statement of accepted
facts and a list of questions, for an impartial medical examination to Dr. William D. Schaefer, a
Board-certified orthopedic surgeon. In a report dated February 15, 2012, Dr. Schaefer reviewed
the statement of accepted facts and the medical evidence. He performed a physical examination
and found well-healed scars in the right upper extremity with a full range of motion and normal
strength. Dr. Schaefer also reported normal sensation. He noted appellant’s report of
inconsistent pain with grip and extension of the wrist. On the left side, Dr. Schaefer found a full
range of motion, normal strength and sensation. He diagnosed chronic pain syndrome and listed
appellant’s surgeries. Dr. Schaefer stated that appellant had a normal physical examination of
both upper extremities. He concluded that her accepted left wrist strain, left elbow tendinitis and
right carpal tunnel syndrome had resolved. Dr. Schaefer found that appellant was physically
capable of performing her duties of secretary, but may require some activity modification to
2

Docket No. 00-2309 (issued January 31, 2001).

3

Docket No. 09-892 (issued December 30, 2009).

4

Docket No. 11-1134 (issued December 9, 2011).

2

avoid repetitive activity. He noted that she had no residuals from her January 14, 1991 work
injury and no evidence of triggering digits. Dr. Schaefer reiterated that appellant could work
with restrictions to limit repetitive motion. He completed a work capacity evaluation on
February 5, 2012 and stated that repetitive motion would likely cause her symptoms to worsen in
severity. Dr. Schaefer restricted appellant to two hours each of repetitive movements of the
wrists and elbows. He further stated, “Claimant does appear to have a chronic pain disorder
although the accepted conditions have reached maximal medical improvement and there is no
clinical evidence of residual symptoms. This pain disorder may limit her ability to perform
repetitive tasks.”
On May 7, 2012 OWCP requested a supplemental report from Dr. Schaefer regarding
appellant’s work restrictions. It asked whether the work restrictions were due to the January 14,
1991 work injury or as preventative measures. On June 6, 2012 Dr. Schaefer responded that
appellant’s work-related injuries had resolved, but that she would benefit from preventative work
restrictions.
On June 19, 2012 OWCP requested an additional supplemental report from Dr. Schaefer
addressing whether appellant’s accepted conditions caused a trigger finger condition. On
July 12, 2012 Dr. Schaefer responded that appellant’s accepted work-related conditions did not
cause trigger finger.
By letter dated December 26, 2012, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Schaefer’s reports. It allowed appellant 30 days
for a response.
By decision dated January 31, 2013, OWCP terminated appellant’s wage-loss
compensation and medical benefits, finding the weight of medical opinion represented by
Dr. Schaefer.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.5 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.6 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.7 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.8

5

Mohamed Yunis, 42 ECAB 325, 334 (1991).

6

Id.

7

Furman G. Peake, 41 ECAB 361, 364 (1990).

8

Id.

3

In situations where there are opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.9
ANALYSIS
The Board previously found an unresolved conflict of medical opinion regarding the
nature and extent of appellant’s employment-related residuals and disability due to the
January 23, 1991 employment injuries of left hand sprain, right carpal tunnel syndrome and left
elbow extensor tendinitis. Due to this unresolved conflict, OWCP properly referred her to
Dr. Schaefer to resolve the medical issues pursuant to 5 U.S.C. § 8123(a).
Dr. Schaefer provided a proper factual background for his report by reviewing the
statement of accepted facts. He provided findings on physical examination of both upper
extremities noting that appellant’s accepted employment injuries had resolved. Dr. Schaefer
found full range of motion, normal strength and normal sensation in both upper extremities. He
stated that appellant had a normal physical examination of the bilateral upper extremities.
Dr. Schaefer concluded that appellant had no residuals from her January 14, 1991 work injuries.
He completed a work capacity evaluation on February 5, 2012 and stated that repetitive motion
would likely cause her symptoms to worsen in severity due to her chronic pain disorder.
On May 7, 2012 OWCP requested a supplemental report addressing whether the work
restrictions were due to the January 14, 1991 work injury or due to preventative measures.
Dr. Schaefer responded on June 6, 2012 and stated that appellant’s work-related injuries had
resolved and that the work restrictions were preventative. OWCP requested an additional
supplemental report from Dr. Schaefer addressing whether appellant’s accepted conditions
caused a trigger finger condition. On July 12, 2012 Dr. Schaefer responded and stated that
appellant’s accepted work-related conditions did not cause a trigger finger.
The Board finds that OWCP has met its burden of proof to terminate appellant’s
compensation and medical benefits based on Dr. Schaefer’s reports. Dr. Schaefer has provided
detailed findings on physical examination and explained that appellant had no objective physical
findings and no residuals of her accepted conditions. These well-reasoned reports represent the
weight of the medical opinion evidence and established that appellant’s work-related disability
and medical conditions have ceased.
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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective January 31, 2013.
9

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5