United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF THE TREASURY,
Kansas City, MO, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-34
Issued: June 25, 2007

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 October 2, 2006 appellant, through her attorney, filed a timely appeal from a
September 21, 2006 merit decision of the Office of Workers’ Compensation Programs denying
her claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained intermittent disability
between September 23, 2000 and September 30, 2003 due to her February 10, 2000 employment
injury.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated March 14, 2003, the
Board affirmed in part and reversed in part decisions dated March 27 and July 10, 2001.1 The
1

Cynthia L. Crawford, Docket No. 01-1872 (issued March 14, 2003).

Board found that the Office properly denied continuation of pay for intermittent dates between
February 10 and March 26, 2000. The Board further found that appellant had not established
that she sustained a cervical condition due to her February 10, 2000 employment injury and that
the Office properly denied her claim for wage-loss compensation after March 27, 2001. The
Board determined, however, that the Office improperly terminated appellant’s authorization for
medical benefits as it did not provide a pretermination notice. The findings of fact and
conclusions of law from the prior decision are hereby incorporated by reference.
On June 13, 2003 the Office notified appellant that it proposed to terminate her
compensation benefits and authorization for medical treatment on the grounds that she had no
further employment-related condition. Appellant challenged the proposed termination and
submitted medical reports dated July 4, 2001 to July 31, 2003 from her attending physician,
Dr. Linda Singh, a Board-certified internist.
By decision dated November 4, 2003, the Office terminated appellant’s compensation
and entitlement to medical benefits effective March 27, 2001. On November 17, 2003 appellant
requested an oral hearing and submitted additional medical evidence.
In a decision dated September 27, 2004, the hearing representative modified the
November 4, 2003 decision to show that it was a termination of medical benefits. The hearing
representative determined that the Office’s termination of her compensation benefits was
redundant given the Board’s finding that she was not entitled to compensation after
March 27, 2001.
On April 7, 2005 appellant requested compensation for intermittent disability from
September 23, 2000 to September 31, 2003. By letter dated April 7, 2005, the Office notified her
that it had approved and paid four hours per day of compensation due to medical appointments
on January 9 and 12, 2001. Appellant submitted medical evidence dated 2001 to 2003.
By decision dated May 16, 2005, the Office denied appellant’s claim for disability
compensation from September 23, 2000 through September 30, 2003. The Office noted that
except for reports on December 21, 2000 and November 7, 2001 the medical evidence was dated
after the termination of her compensation.
On June 8, 2005 appellant, through her attorney, requested an oral hearing; however, she
subsequently requested a review of the written record in lieu of an oral hearing. In a decision
dated March 1, 2006, an Office hearing representative affirmed the May 16, 2005 decision.
Appellant appealed to the Board. On September 8, 2006 the Board set aside the May 16,
2005 and March 1, 2006 decisions because the case record as assembled appeared to be missing
pages.2 The Board remanded the case for reconstruction of the case record and an appropriate
decision.3
2

In a memorandum dated September 20, 2006, the Office indicated that the record appeared to be missing over
700 pages due to a numbering error by the Clerk of the Board.
3

Order Remanding Case, Docket No. 06-958 (issued September 8, 2006).

2

In a decision dated September 21, 2006, the Office denied appellant’s claim for
compensation from September 23, 2000 through September 30, 2003. The Office noted that it
had informed her on April 12, 2005 that she would be paid four hours of compensation for
January 9 and 12, 2001. Appellant could not receive compensation for other dates without
providing “proof of total disability for the dates claimed prior to the date that [her] compensation
benefits were terminated” on March 27, 2001. The Office stated: “Except for work excuses
dated December 21, 2000 and November 7, 2001, the medical evidence is for dates after the date
that compensation benefits were terminated.” The Office also found that the work excuses of
December 21, 2000 and November 7, 2001 did not indicate disability from employment.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act4 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.5 Whether a particular injury caused an employee disability for employment
is a medical issue which must be resolved by competent medical evidence.6 When the medical
evidence establishes that, the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.7 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.8
In determining whether a claimant has discharged his or her burden of proof and is
entitled to compensation benefits, the Office is required by its statute and regulation to make
findings of fact. 5 U.S.C. § 8124(a) provides: “The [Office] shall determine and make a finding
of facts and make an award for or against payment of compensation.” The Office’s regulation
provides that an Office decision “shall contain findings of fact and a statement of reasons.”9 The
Office decision should contain a discussion of the issues, requirements for entitlement, a
background framework so that the reader can understand the issues at hand, a discussion of the
relevant evidence, a basis for the decision and a conclusion.10 Office procedures further specifies
that a final decision must provide clear reasoning which allows the claimant to “understand the
precise defect of the claim and the kind of evidence which would overcome it.”11 Thus, a final
4

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

5

Sean O’Connell, 56 ECAB ___ (Docket No. 04-1746, issued December 20, 2004).

6

Paul E. Thams, 56 ECAB ___ (Docket No. 04-1019, issued April 26, 2005).

7

Id.

8

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

20 C.F.R. § 10.126.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (March 1997).

11

Id.

3

decision must include findings of fact and a description of the basis for the findings so that the
parties of interest will have a clear understanding of the reasoning behind the decision.12
ANALYSIS
Appellant filed a claim requesting compensation for total disability from September 23,
2000 through September 31, 2003 and submitted medical evidence in support of her claim. The
Office, in its September 21, 2006 decision, concluded that she failed to establish entitlement to
compensation without providing adequate findings of fact or conclusions of law.13 The Office
did not specifically discuss the factual or medical evidence submitted by appellant in support of
her claim for compensation except to reference two work excuses dated December 21, 2000 and
November 7, 2001. The Office declined to address the medical evidence subsequent to
March 27, 2001 because it found that her benefits had been terminated as of that date.14
Contrary to the Office’s finding, however, appellant is not precluded from filing a claim
requesting disability compensation after March 27, 2001.15 Consequently, the Office’s basis for
denying her claim and failing to fully analyze the evidence of record is incorrect. The case is,
therefore, remanded to the Office for an appropriate decision that properly considers the
evidence submitted.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

Paul M. Colosi, 56 ECAB ___ (Docket No. 04-1042, issued February 3, 2005).

13

5 U.S.C. § 8124; 20 C.F.R. § 10.126; Avalon C. Bailey, 56 ECAB ___ (Docket No. 04-2178, issued
December 23, 2004).
14

In the prior appeal, the Board affirmed the Office’s finding that appellant had not established entitlement to
compensation after March 27, 2001. The Board noted that she had not filed a claim for compensation after
March 26, 2000. Cynthia L. Crawford, supra note 1.
15

See generally Joseph A. Brown, Jr., 55 ECAB 542 (2004) (after termination or modification of compensation,
clearly warranted on the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 21, 2006 is set aside and the case is remanded for
further proceedings consistent with this opinion of the Board.
Issued: June 25, 2007
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

5


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

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Appearances:
Ron Watson, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1686
Issued: September 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 15, 2016 appellant, through his representative, filed a timely appeal from a
May 4, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2
Pursuant to the Federal Employees’ Compensation Act3 (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

Appellant also filed a timely request for oral argument in this case. By order dated January 11, 2017 the Board,
after exercising it discretion denied his request for oral argument as oral argument would further delay issuance of a
Board decision and not serve a useful purpose. Order Denying Request for Oral Argument, Docket No. 16-1686
(issued January 11, 2017).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has more than seven percent permanent impairment of his
right upper extremity, for which he previously received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts of the case as presented in the
prior appeal are incorporated herein by reference. The relevant facts are as follows.
On December 27, 2002 appellant, then a 41-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 26, 2002 he sustained a right shoulder injury
when he slipped on ice. By decision dated February 13, 2003, OWCP accepted the claim for
right shoulder sprain.
On May 5, 2010 appellant filed a recurrence claim (Form CA-2a) alleging a
return/increase of disability. By decision dated October 7, 2010, OWCP accepted his recurrence
claim which was expanded to include complete right rotator cuff rupture and subsequently,
postoperative infection.
OWCP authorized surgery for right shoulder arthroscopy and biceps tendon repair and on
December 16, 2010, appellant underwent right shoulder arthroscopy with extensive debridement,
lysis of adhesions, biceps tenodesis, subacromial decompression with acromioplasty, rotator cuff
repair, and distal clavicle excision. It approved a subsequent February 3, 2011 surgery resulting
from a postoperative infection. Appellant then underwent a right shoulder arthroscopy with
extensive debridement, complete synovectomy, loose body removal, and subacromial
decompression. On February 8, 2011 he underwent an additional surgery for drainage of a pus
collection in the subcutaneous tissues anteriorly. Appellant returned to full-time work on
July 11, 2011. The record reflects that he received compensation benefits on the periodic rolls
from December 19, 2010 until July 10, 2011.
On January 11, 2012 appellant filed a claim for a schedule award (Form CA-7). In
support of his schedule award claim, he submitted a December 28, 2011 medical report from his
treating physician, Dr. Byron V. Hartunian, a Board-certified orthopedic surgeon. In his report,
Dr. Hartunian diagnosed acromioclavicular (AC) joint disease of the right shoulder, rotator cuff
injury with full-thickness rotator cuff tear status post repair of the right shoulder, and biceps
tendon tear status post tenodesis of the right shoulder. Using the diagnosis-based impairment
(DBI) methodology and Table 15-5, in the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Hartunian opined that
appellant had 22 percent permanent impairment of the right upper extremity. The rating was
based on AC joint disease for 12 percent permanent impairment, rotator cuff tear for 7 percent
permanent impairment, and biceps tendinitis and weakness for 5 percent permanent impairment.
On September 6, 2012 OWCP routed Dr. Hartunian’s report, a statement of accepted
facts (SOAF), and appellant’s case record to Dr. Morley Slutsky, an OWCP medical adviser
4

Docket No. 14-0359 (issued June 22, 2015).

2

Board-certified in occupational medicine, for an opinion regarding the extent of appellant’s
permanent impairment of the right upper extremity. In a September 6, 2012 report, Dr. Slutsky
noted that appellant had a number of diagnoses which could be rated for permanent impairment.
He related, however, that Dr. Hartunian improperly rated multiple conditions when only the
diagnosis which produced the greatest potential impairment in accordance with section 15.2(e)
and 15.3(f) of the A.M.A., Guides could be used. Dr. Slutsky found that the diagnosis of
AC joint arthrosis status post distal clavicle resection had the greatest potential for impairment
and agreed with Dr. Hartunian’s 12 percent permanent impairment rating for this condition. He
concluded that appellant’s total right upper extremity impairment was 12 percent.
In a December 31, 2012 supplemental report, Dr. Hartunian reviewed Dr. Slutsky’s report
and disagreed with his conclusion that only one diagnosis could be used to calculate appellant’s
permanent impairment of the upper right extremity. While he agreed with Dr. Slutsky that the
AC joint arthrosis status post clavicle excision was the highest ratable condition, he argued that
ratings for the rotator cuff and biceps tendon tear should be combined due to the complex nature
of the injuries. Dr. Hartunian again concluded that appellant was entitled to a schedule award for
22 percent permanent impairment of the right upper extremity.
On March 20, 2013 OWCP referred appellant to Dr. Kenneth J. Glazier, a Board-certified
orthopedic surgeon, for an impartial medical examination to resolve the conflict regarding the
extent of permanent impairment between Dr. Hartunian and Dr. Slutsky.
In an April 16, 2013 medical report, Dr. Glazier provided a medical history and findings
on physical examination. He agreed with Dr. Slutsky’s assessment that only the highest rated
diagnosis should be used, based on the A.M.A., Guides. Dr. Glazier opined, however, that the
more appropriate diagnosis was the rotator cuff tear due to the lack of symptoms and findings at
the AC joint. Pursuant to the DBI method, using Table 15-5, he calculated seven percent right
upper extremity permanent impairment based on appellant’s rotator cuff injury.
On May 7, 2013 OWCP requested that Dr. Robert Y. Pick, an OWCP medical adviser
and Board-certified orthopedic surgeon, review the record regarding appellant’s schedule award
claim.
In a May 26, 2013 report, Dr. Pick agreed with Dr. Glazier’s finding that appellant had
seven percent permanent impairment of the right upper extremity. He noted that the impairment
rating was based on the rotator cuff because it was the salient and major impairment, as opposed
to the AC joint.
By decision dated June 28, 2013, OWCP granted appellant a schedule award for seven
percent permanent impairment of the right upper extremity, finding that the weight of the
medical evidence rested with Dr. Glazier’s impartial medical evaluation. The date of maximum
medical improvement (MMI) was noted as July 11, 2011. The award covered a period of 21.84
weeks from July 11 to December 10, 2011.
Appellant, through his representative, appealed to the Board on December 2, 2013. By
decision dated June 22, 2015, the Board set aside OWCP’s June 28, 2013 decision granting
appellant a schedule award for seven percent permanent impairment of the right upper extremity

3

and remanded the case for further development. The Board found that the opinion of
Dr. Glazier, serving as the impartial medical examiner, was of reduced probative value and failed
to resolve the conflict in medical opinion as to whether appellant’s schedule award should be
based upon a single diagnosis and because his findings were internally inconsistent regarding
findings on physical examination of the AC joint.5
Following the Board’s June 22, 2015 remand, OWCP referred appellant, a SOAF, the
case file, a medical conflict statement, and a series of questions to Dr. Murray Goodman, a
Board-certified orthopedic surgeon, for an impartial medical evaluation to resolve the continued
conflict of medical opinion regarding the extent of appellant’s permanent impairment of his right
upper extremity. It requested Dr. Goodman discuss any points of disagreement and resolve the
conflict as to whether appellant’s permanent impairment should be based on a single diagnosis or
multiple diagnoses, pursuant to the A.M.A., Guides.6
In a November 30, 2015 medical report, Dr. Goodman discussed appellant’s medical
history and review of diagnostic testing. He noted that, on December 16, 2010, appellant
underwent a right shoulder arthroscopic debridement, subacromial decompression, rotator cuff
repair, and distal clavicle resection, but a complete repair of the rotator cuff could not be
accomplished. Postoperatively, appellant developed a wound infection and underwent surgery
again in February 2011. Physical examination findings of the right shoulder revealed nonfocal
tenderness, range of motion (ROM) findings of 130 degrees of forward flexion, 180 degrees of
abduction, mild snapping, external rotation at 60 degrees, internal rotation at 50 degrees, mild
pain, and mild weakness on resisted abduction and external rotation. Dr. Goodman identified
diagnoses of right shoulder sprain, complete rotator cuff rupture of the right shoulder, and
postoperative infection which were causally related to appellant’s work injury. He also noted a
diagnosis of AC joint arthritis of the right shoulder which he opined was a preexisting condition,
but could have predisposed him to or increased his risk of the work injury. Dr. Goodman
explained that MMI had been obtained following the surgery.
Dr. Goodman opined that appellant had seven percent permanent impairment of the right
upper extremity in accordance with the A.M.A., Guides (6th ed. 2009).7 He explained that, with
respect to the shoulder, it is not uncommon for rotator cuff tears, superior labrum from anterior
to posterior lesion or other labral lesions, and biceps tendon pathology to be present
simultaneously. Dr. Goodman noted that the evaluator was expected to choose the most
significant diagnosis and rate only that diagnosis using the DBI method.8 Utilizing Table 15-5
Shoulder Regional Grid for Upper Extremity Impairments, Dr. Goodman identified the most
significant diagnosis as rotator cuff injury, full thickness tear under a class one impairment for
residual loss.9 He noted that it was not appropriate to utilize AC joint injury or disease because
5

Id.

6

A.M.A., Guides (2009).

7

Id.

8

Id. at 390, section 15.2e.

9

Id. at 403.

4

although the AC joint arthritis was present, it was a preexisting condition, not related to his work
injury, and not accepted by OWCP. Dr. Goodman assigned for functional history a grade
modifier of 2 based on a QuickDASH score of 56.6710 and physical examination a grade
modifier of 2.11 Clinical studies were not utilized because the magnetic resonance imaging scan
was used to establish the impairment class. Dr. Goodman applied the net adjustment formula
which resulted in two, moving appellant to grade E with an adjusted impairment rating of seven
percent permanent impairment of the right upper extremity.12
On January 29, 2016 OWCP routed Dr. Hartunian’s December 28, 2011 report,
Dr. Slutsky’s September 6, 2012 report, Dr. Goodman’s November 30, 2015 report, a SOAF, and
the case file to Dr. Taisha S. Williams, an OWCP district medical adviser (DMA), for an opinion
on Dr. Goodman’s impairment rating. It noted that the case was referred for an impartial
medical examination in order to resolve a conflict of medical opinion between Dr. Hartunian and
Dr. Slutsky with regard to the percentage of permanent impairment of the right upper extremity.
OWCP identified the accepted conditions of adhesive capsulitis of the right shoulder, complete
rotator cuff tear or rupture of the right shoulder, sprain of right shoulder and upper arm, and
postoperative infection.
In a February 28, 2016 medical report, Dr. Williams reported that Dr. Goodman correctly
applied the criteria/tables in the A.M.A., Guides and noted the correct date of MMI.
In a May 4, 2016 de novo decision, OWCP found that, based upon the report of
Dr. Goodman appellant was not entitled to additional schedule award for permanent impairment
of the right upper extremity.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.13 Section
8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss
of use of specified members, functions, and organs of the body.14 FECA, however, does not
specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its

10

Id. at 406, Table 15-7.

11

Id. at 408, Table 15-8.

12

Id. at 411.

13

See 20 C.F.R. §§ 1.1-1.4.

14

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).

5

implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.15
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).16 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.17
ANALYSIS
OWCP accepted appellant’s claim for sprain of right shoulder and upper arm, adhesive
capsulitis of the right shoulder, complete rotator cuff tear or rupture of the right shoulder, and
postoperative infection. The issue is whether appellant sustained more than seven percent
permanent impairment of the upper right extremity, for which he previously received a schedule
award. The Board finds that this case is not in posture for decision.
In its June 22, 2015 decision, the Board found that the conflict in medical evidence
between the opinions of Dr. Slutsky and Dr. Hartunian was well defined in their reports.
Dr. Hartunian contended that appellant’s unusual medical history and array of symptoms
required that a schedule award include multiple diagnoses while Dr. Slutsky found that
appellant’s symptoms and impairment were accurately reflected in a single diagnosis. As
Dr. Glazier, serving as the impartial medical examiner, failed to explain or resolve this conflict,
the Board set aside OWCP’s June 28, 2013 decision and remanded the case for further medical
development.
On remand OWCP requested Dr. Goodman, serving as the impartial medical examiner,
discuss any points of disagreement and resolve the conflict of whether the permanent impairment
is based on a single diagnosis or multiple diagnoses. In his November 30, 2015 report,
Dr. Goodman utilized the DBI method and identified the diagnosis as rotator cuff injury, fullthickness tear with residual loss under a class 1 impairment and opined that appellant was
entitled to seven percent permanent impairment of the upper right extremity. Dr. Williams,
serving as an OWCP DMA, reviewed this referee report and agreed with his findings.

15

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

16

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013).
17

Isidoro Rivera, 12 ECAB 348 (1961).

6

The issue on appeal is whether appellant has more than seven percent permanent
impairment of his right upper extremity, for which he previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.18
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.19 In T.H., the Board concluded that OWCP physicians
were at odds over the proper methodology for rating upper extremity impairment, having
observed attending physicians, evaluating physicians, second opinion physicians, impartial
medical examiners, and district medical advisers use both DBI and ROM methodologies
interchangeably without any consistent basis. Furthermore, the Board observed that physicians
interchangeably cited to language in the first printing or the second printing when justifying use
of either ROM or DBI methodology. Because OWCP’s own physicians were inconsistent in the
application of the A.M.A., Guides, the Board found that OWCP could no longer ensure
consistent results and equal justice under the law for all claimants.20
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the May 4, 2016 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied uniformly,
and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds that this case is not in posture for a decision.

18

T.H., Docket No. 14-0943 (issued November 25, 2016).

19

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

20

Supra note 18.

7

ORDER
IT IS HEREBY ORDERED THAT the May 4, 2016 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: September 13, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
SOUTHERN ARIZONA HEALTHCARE
)
SYSTEM, Tucson, AZ, Employer
)
__________________________________________ )
D.F., Appellant

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

Docket No. 11-42
Issued: August 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 4, 2010 appellant filed an appeal of an August 23, 2010 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his request for an oral hearing.
Since more than 180 days elapsed since the most recent merit decision of February 18, 2010 to
the filing of this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely.
1
2

5 U.S.C. §§ 8101-8193.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On August 3, 2009 appellant, then a 43-year-old nursing assistant, filed a traumatic injury
claim alleging that on July 28, 2009 he was kicked in his chest by a patient and fell into a wall.
OWCP accepted the claim for sprain of back, lumbar region and contusion of back, left side.
Appellant experienced no lost time from work, but was assigned light-duty status.
On December 2, 2009 appellant claimed a recurrence of disability commencing
November 19, 2009 due to his July 28, 2009 injury. By decision dated February 18, 2010,
OWCP denied his recurrence claim.3
In an appeal request form dated March 5, 2010 and postmarked April 5, 2010, appellant
requested an oral hearing before OWCP’s hearing representative.
By decision dated August 23, 2010, OWCP’s Branch of Hearing and Review denied
appellant’s request for an oral hearing on the grounds that it was untimely. It exercised its
discretion and further denied his request on the basis that the issue in the case could be addressed
by requesting reconsideration from OWCP and submitting evidence not previously considered
which established that the claimed recurrence resulted from the accepted work injury.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides in pertinent part as follows:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary is entitled, on request made within
30 days after the date of issuance of the decision, to a hearing on his claim before
a representative of the Secretary.”4
The claimant can choose between two formats: an oral hearing or a review of the written
record.5 The requirements are the same for either choice.6 The Board has held that section
8124(b)(1) is unequivocal in setting forth the time limitation for requesting hearings or reviews
of the written record. A claimant is entitled to a hearing or review of the written record as a
matter of right only if the request is filed within the requisite 30 days as determined by postmark
or other carrier’s date marking7 and before the claimant has requested reconsideration.8
However, when the request is not timely filed or when reconsideration has previously been

3

On March 15, 2010 appellant appealed to the Board, which he subsequently requested to be dismissed. In a
July 9, 2010 order, the Board dismissed appellant’s appeal. Docket No. 10-1091 (issued July 9, 2010).
4

5 U.S.C. §§ 8101-8193, § 8124(b)(1).

5

20 C.F.R. § 10.615.

6

Claudio Vazquez, 52 ECAB 496, 499 (2001).

7

20 C.F.R. § 10.616(a); Tammy J. Kenow, 44 ECAB 619 (1993).

8

Martha A. McConnell, 50 ECAB 129, 130 (1998).

2

requested, OWCP may within its discretion, grant a hearing or review of the written record, and
must exercise this discretion.9
ANALYSIS
OWCP denied appellant’s claimed recurrence on February 18, 2010. Appellant’s request
for an oral hearing before OWCP’s hearing representative was dated March 5, 2010 but was
postmarked on April 5, 2010. The date of his hearing request is determined by the date of the
postmark.10 Appellant’s April 5, 2010 hearing request was made more than 30 days after the
date of OWCP’s February 18, 2010 decision. Therefore, he was not entitled to a hearing as a
matter of right.
OWCP has the discretionary authority to grant a hearing even though a claimant is not
entitled as a matter of right. In its August 23, 2010 decision, OWCP properly exercised its
discretion. It considered the issue involved and denied appellant’s request for an oral hearing on
the basis that his claim on the issue of whether the claimed recurrence resulted from the accepted
work injury could be adequately addressed through the reconsideration process and the
submission of additional evidence. The Board has held that the only limitation on OWCP’s
authority is reasonableness. Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic
and probable deduction from established facts.11 In the present case, OWCP did not abuse its
discretion in denying a discretionary hearing.
On appeal, appellant argues the merits of his case. The Board notes that it only has
jurisdiction over OWCP’s August 23, 2010 decision which denied his request for a hearing.
CONCLUSION
The Board finds that OWCP properly found that appellant had filed an untimely request
for an oral hearing.

9

Id.

10

20 C.F.R. § 10.616(a). See N.M., 59 ECAB 511 (2008) (a hearing request must be sent within 30 days of the
date of the decision for which a hearing is sought as determined by postmark or other carrier’s date marking).
11

Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. Perea, 42 ECAB 214 (1990).

3

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 23, 2010 is affirmed.
Issued: August 1, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trenton, NJ, Employer
__________________________________________

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

Docket No. 15-0580
Issued: August 10, 2015

Case Submitted on the Record

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

JURISDICTION
On January 16, 2015 appellant, through counsel, filed a timely appeal from the
October 21, 2014 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 January 30, 2012 employment injury caused disability
for work.
FACTUAL HISTORY
On June 17, 1992 appellant, a 26-year-old letter carrier, sustained a traumatic injury in
the performance of duty while picking up a large box.2 She stated that she moved the wrong way
1

5 U.S.C. § 8101 et seq.

2

OWCP File No. xxxxxx679.

and felt a jerk in her lower back. Appellant stated that she pulled a muscle in her lower right
back and hip. OWCP accepted her claim for strain of the low back, right hip, and buttocks.
A January 1993 magnetic resonance imaging (MRI) scan revealed desiccation of the L4-5
disc, which was associated with protrusion of the anterior and posterior margins. The posterior
protrusion was noted to indent the caudal sac; it represented herniation of the disc.
Electromyography (EMG) and nerve conduction studies showed findings correlating with L5
radiculopathy.
OWCP authorized a lumbar laminectomy. In August 1993, appellant underwent an
L4 and L5 laminectomy and an L4-5 discectomy. OWCP accepted right leg radiculopathy.
On June 2, 1998 appellant received a schedule award for a 13 percent impairment of her
right lower extremity due to sensory and motor loss of the L5 spinal nerve root. The award ran
for 37.44 weeks during the period January 22 to October 10, 1996. Appellant eventually
returned to modified duty.
On January 30, 2012 appellant sustained a second traumatic injury in the performance of
duty while lifting a tub of mail.3 She went to the emergency room that same day, where her
current complaints were described as “Ortho, Minor, Ortho(Minor), Injured Back at Post Office
work.” Symptoms began while bending over. Pain was sharp and radiating to the right lower
extremity. Mild-to-moderate discomfort from pain was observed. Appellant responded to
medication and was discharged with a diagnosis of sciatica.
Dr. David Weiss, the attending osteopath, saw appellant on February 2 and 9, 2012.
Appellant continued to experience pain in the low back region radiating into the right lower
extremity with numbness. She remained disabled from her work as a letter carrier. Dr. Weiss
estimated that appellant would be able to return to work in approximately six to eight weeks.
Appellant began a series of trigger point injections. On April 30, 2012 Dr. Weiss found that she
remained disabled from her gainful employment.
OWCP accepted appellant’s claim for lumbar strain/sprain and lower extremity
radiculitis. It later advised that it was accepting a temporary aggravation of preexisting
degenerative disc disease.
Appellant filed claims for wage loss beginning March 16, 2012. On August 17, 2012
Dr. Weiss advised that an MRI scan from 2009 did not reveal any disc pathology at the L5-S1
level; however, following her January 30, 2012 work injury, she was noted to have a disc bulge
at that level. As appellant was asymptomatic prior to the work injury and did not have a prior
disc bulge at L5-S1, Dr. Weiss opined that her ongoing low back injury was related to the work
injury of January 30, 2012.
OWCP referred appellant, together with the medical record and a statement of accepted
facts, to Dr. Stanley R. Askin, a Board-certified orthopedic surgeon, for a second opinion. In
October 2012 Dr. Askin related appellant’s history of injury beginning with her first injury on
3

OWCP File No. xxxxxx821 (master file).

2

June 17, 1992. With respect to her second injury on January 30, 2012, he noted that from an
orthopedic perspective the history of feeling a pop in her back associated with sharp pain was
fairly classic for mechanical back pain, in which an arthritic joint is moved in a painful fashion.
Dr. Askin described appellant’s current complaints and reviewed her medical record. He set
forth his findings on physical examination and acknowledged the accepted medical conditions.
Dr. Askin repeated that appellant’s history was classic for an episode of mechanical back
pain, which meant that an already arthritic joint was moved in a painful fashion. It was a work
injury, but it would be considered a temporary exacerbation of an underlying condition without
medical nexus to the earlier injury. Dr. Askin added that the terms that had been accepted, such
as lumbar strain, would not equally explain her complaints. He observed that appellant had no
objective findings other than underlying degenerative disc disease. Appellant was someone in
the middle years of life who was heavier than ideal. She had been surgically treated in the past,
but Dr. Askin noted that did not change the facts regarding what was anatomically explicable for
her complaints. The temporary expression of pain associated with motion of an already arthritic
joint was the common explanation for back pain in middle-aged people. It was consistent with
the revelations reported on her imaging study. Dr. Askin added: “Please note that apart from the
postsurgical changes, disc bulging and various permutations of disc pathology are part of the
aging process and not indicative of an injury having been incurred.”
Dr. Askin advised that appellant’s work-related exacerbation had resolved. The natural
history for untreated back pain was that 2/3 of individuals improved within two weeks and 95
percent within three months. Dr. Askin believed that there was no work-related reason that
appellant could not resume her date-of-injury job full time and full duty.
In a November 26, 2012 supplemental report, Dr. Askin clarified that appellant had
musculoskeletal difficulties, but she had no work-related reason she could not perform her
full-duty job, which required lifting up to 70 pounds and walking, standing, and climbing stairs.
Dr. Askin provided another supplemental report on October 14, 2013. He reviewed
appellant’s MRI scans, including the most recent one as well as her earlier studies. Dr. Askin
explained that MRI scans do not show pain. They can show the consequences of injuries, such
as hemorrhage, edema, contusions, and tears of the soft tissue, none of which were defined on
appellant’s studies. Also, it was not possible to predict by looking at an MRI scan if the patient
has symptoms or where the symptoms might be. MRI scan studies merely revealed
imperfections that are not necessarily the cause of symptoms. An EMG did report a right L5-S1
radiculopathy, but this was not corroborated by appellant’s clinical examination on
August 2, 2013.
Asked how long appellant would have been expected to be disabled after her January 30,
2012 work injury, Dr. Askin replied that two months would have been reasonable. He added that
appellant was capable of returning to a position delivering Express Mail and lifting up to 35
pounds.
In a decision dated October 31, 2013, OWCP denied appellant’s claim for wage-loss
compensation beginning March 16, 2012. It found no rationalized explanation of how her

3

degenerative conditions were causally related to the June 17, 1992 injury or how those
conditions were aggravated by the January 30, 2012 injury.
Appellant, through counsel, requested an oral hearing before an OWCP hearing
representative. A telephone hearing was held on April 2, 2014.
On May 28, 2014 an OWCP hearing representative affirmed the denial of appellant’s
disability claim. The hearing representative found that none of appellant’s doctors provided a
rationalized opinion that appellant became disabled as a direct result of her January 30, 2012
work injury.
Appellant, through counsel, requested reconsideration on July 25, 2014 and submitted a
March 27, 2014 report by Dr. Weiss who reviewed OWCP’s October 31, 2013 decision and the
reports of Dr. Askin. Dr. Weiss noted that an underlying pathology makes a patient more
susceptible to further injury. Further injury occurred when appellant lifted a tub of mail at work
on January 30, 2012, which caused acute symptoms. Dr. Weiss explained that her treatment was
prolonged secondary to her underlying disc pathology. It was his opinion that appellant
sustained a significant aggravation of her preexisting lumbar spine pathology as a result of the
January 30, 2012 work injury. “This certainly is not a simple case of a middle-aged woman with
degenerative changes as stated by Dr. Askin. This is a case of a patient with a history of
underlying lumbar spine pathology who suffered a significant aggravation as a result of the
work[-]related injury of January 30, 2012.”
OWCP reviewed the merits of appellant’s claim on October 21, 2014 and denied
modification of its prior decision. It found that Dr. Askin’s opinion represented the weight of the
medical evidence.
On appeal, appellant argues that she has provided abundant evidence to establish that she
still suffers from the residuals of her January 30, 2012 work injury. She notes that a
February 28, 2013 MRI scan revealed disc bulges and disc defects at L1-5. Appellant takes issue
with Dr. Askin’s opinion and argues that he admitted she needed two months to convalesce from
her work injury. She believes that Dr. Weiss’ reports should carry the weight of the medical
evidence and that she should be compensated for periods of disability following her January 30,
2012 work injury. At a minimum, appellant argues, there is a conflict between the attending
physicians and Dr. Askin requiring referral to an impartial medical specialist.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.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

4

5 U.S.C. § 8102(a).

5

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

4

specific condition or disability for work for which she claims compensation is causally related to
that employment injury.6
It is not sufficient for the claimant to establish merely that she has disability for work.
She must establish that her disability is causally related to the accepted employment injury.
FECA provides compensation only for as long as there exists a proven physical or related
impairment attributable to the injury. The claimant must submit a rationalized medical opinion
that supports a causal connection between her disabling condition and the employment injury.
The medical opinion must be based on a complete factual and medical background with an
accurate history of the employment injury, and must explain from a medical perspective how the
disabling condition is related to the injury.7
ANALYSIS
Appellant sustained an injury in the performance of duty on January 30, 2012 while
lifting a tub of mail. She filed claims for wage-loss compensation beginning March 16, 2012.
Appellant therefore has the burden to establish that her January 30, 2012 employment injury
caused disability for work.
The attending osteopath, Dr. Weiss, saw appellant on February 2 and 9, 2012. He found
that she was disabled for work as a letter carrier. Dr. Weiss estimated that appellant would be
able to return to work in approximately six to eight weeks, or about the same time as the period
of disability in question.
Appellant did not return to work as Dr. Weiss expected. She continued to receive a series
of trigger point injections, and he continued to complete progress notes that did not address
whether disability beginning March 16, 2012 was causally related to the January 30, 2012 work
injury. In August 2012, Dr. Weiss noted that appellant had an L5-S1 disc bulge following her
work injury. He reasoned that, because she was asymptomatic prior to the work injury and did
not have a prior disc bulge at L5-S1, her ongoing low back injury was related to the work injury
of January 30, 2012.8 The Board has held that, when a physician concludes that a condition is
causally related to an employment because the employee was asymptomatic before the
employment injury, the opinion is insufficient, without supporting medical rationale, to establish
causal relationship.
OWCP referred appellant to Dr. Askin, an orthopedic surgeon, to address the issue of
injury-related disability. Dr. Askin began with the observation that her history of feeling a pop
in her back associated with sharp pain was, from an orthopedic perspective, a fairly classic case
for mechanical back pain, in which an arthritic joint is moved in a painful fashion. Such an
injury would be considered a temporary exacerbation of an underlying condition without a
medical nexus to the injury in 1992. Dr. Askin also observed that appellant had no objective
6

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

7

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

8

See Thomas D. Petrylak, 39 ECAB 276 (1987).

5

findings other than underlying degenerative disc disease. He explained that the temporary
expression of pain associated with the motion of an already arthritic joint was the common
explanation for back pain in middle-aged people. This was also consistent with the findings on
appellant’s MRI scan. Dr. Askin noted that disc bulging and various permutations of disc
pathology were a part of the aging process and not indicative of an injury having been incurred.
Reviewing all of appellant’s MRI scans, Dr. Askin advised that such studies could not
show pain. They could show the consequences of injuries, such as hemorrhage, edema,
contusions, and tears of the soft tissue, but none of these were defined on appellant’s studies.
Further, it was not possible to predict by looking at an MRI scan if a patient had symptoms or
where the symptoms might be. MRI scan studies merely revealed imperfections that were not
necessarily the cause of symptoms. Although an EMG did report a right L5-S1 radiculopathy,
this was not corroborated by appellant’s clinical examination on August 2, 2013.
Dr. Askin opined that appellant’s work-related exacerbation had resolved. The natural
history for untreated back pain was that 2/3 of individuals improved by two weeks and 95
percent by three months. Dr. Askin saw no reason for appellant to have generated such a thick
medical file for such a straightforward problem. He believed that two months would have been a
generous period of convalescence given the rather straightforward nature of the reported injury
on January 30, 2012, an injury described by the initial providers of medical care as “minor.”
Although appellant continued to have musculoskeletal difficulties, she had no work-related
reason she could not return to work. Dr. Askin did not dispute that she had an episode of back
pain, but he could find no documentation that the January 30, 2012 employment injury had
materially altered her preexisting condition such that she could not resume the activities she had
been capable of doing prior to that date.
Dr. Askin based his opinion on a proper factual and medical history. He provided a
well-considered viewpoint based on appellant’s previous condition, the mechanism of injury, the
history of initial symptoms, the early assessment of the severity of the injury, the natural course
of recovery, the absence of objective findings other than underlying degenerative disc disease,
and appellant’s clinical studies. Dr. Askin’s reasoning appears sound, rational, and consistent,
and it establishes that her January 30, 2012 work injury could have caused disability for up to
two months, beyond which any problem she continued to experience no longer bore any
association with what happened at work, but was instead simply a reflection the problems
typically encountered by those with degenerative disc disease.
Dr. Weiss observed that an underlying pathology makes a patient more susceptible to
further injury. But he did not document further injury or any material change in appellant’s
underlying condition. Appellant had a disc bulge, but as Dr. Askin explained, this was not
indicative that an injury had been incurred. Dr. Weiss noted that her treatment was prolonged
secondary to her underlying disc pathology, something with which Dr. Askin agreed. However,
Dr. Askin explained that, after a generous period of convalescence and appropriate treatment,
there was no longer any physically explicable reason to associate these secondary problems with
what happened at work. Dr. Weiss, for his part, did not rationally explain how prolonged
treatment or prolonged disability had any causal relationship to the January 30, 2012 work
incident. His view appears anchored more in the temporal sequence of events than in medical
causation. It was Dr. Weiss’ opinion that appellant sustained a significant aggravation of her

6

preexisting lumbar spine pathology, but this is inconsistent with the early medical assessment
that her orthopedic injury was a minor one and with his own estimate that she would be able to
return to work in approximately six to eight weeks. That estimate, it turned out, was consistent
with Dr. Askin’s view of the case.
Appellant bears the burden of proof to demonstrate that the prolonged disability for
which she claims compensation was causally related to the January 30, 2012 employment injury.
But her attending physician offered little in the way of support. The Board finds that the weight
of the medical evidence rests with Dr. Askin, who offered a more convincing assessment the
case. As a result, there is no true conflict between Dr. Askin and Dr. Weiss, despite their brief
exchanges and general disagreement.9
The Board finds, however, that Dr. Askin has supported the payment of wage-loss
compensation for a much as two months following the January 30, 2012 work injury, and the
Board will remand the case for appropriate payment.
CONCLUSION
The Board finds that appellant has not met her burden to establish that her January 30,
2012 employment injury caused prolonged disability for work. OWCP shall pay wage-loss
compensation for that two-month period following the January 30, 2012 employment injury
consistent with the opinion obtained from Dr. Askin.

9

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a third physician
who shall make an examination.” 5 U.S.C. § 8123(a); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Developing and Evaluating Medical Evidence, Chapter 2.810.11.b (September 2010) (prior to referring the case for
a referee examination, a conflict in medical opinion must actually exist as determined by weighing the medical
evidence).

7

ORDER
IT IS HEREBY ORDERED THAT the October 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: August 10, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Troy, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1054
Issued: March 30, 2022

Case Submitted on the Record

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

On July 6, 2021 appellant filed a timely appeal from a January 7, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1054.
This case has previously been before the Board. 1 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 15, 2015 appellant, then a 57-year-old customer care agent, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to
factors of her federal employment, including an increase of work activities. She asserted that she
first became aware of her claimed condition on February 7, 2000 and first realized its relation to

1

Docket No. 19-0925 (issued September 25, 2019).

her federal employment on March 28, 2015. Appellant stopped work on March 17, 2015. OWCP
assigned OWCP File No. xxxxxx503. 2
Appellant submitted a series of medical reports in support of the present claim, including
a June 4, 2015 report from Dr. Sophia Grias-Radwanski, a Board-certified physiatrist. Dr. GriasRadwanski diagnosed bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and neck
pain with radiculopathy symptoms.
After extensive development of the medical evidence, OWCP found a conflict in the
medical opinion evidence between Dr. Grias-Radwanski and Dr. Allen L. Babcock, a Boardcertified orthopedic surgeon serving as an OWCP referral physician, regarding whether appellant
sustained a new occupational injury due to employment factors. After additional development of
the medical evidence,3 it referred appellant for an impartial medical examination with
Dr. Clifford M. Buchman, an osteopath and Board-certified orthopedic surgeon, who produced a
July 25, 2018 report.
By decision dated August 23, 2018, OWCP denied appellant’s claim for a new
employment-related occupational condition, finding that the special weight of the medical opinion
evidence rested with the well-rationalized opinion of Dr. Buchman, the impartial medical
specialist.
By decision dated March 8, 2019, OWCP’s hearing representative affirmed OWCP’s
August 23, 2018 decision.
Appellant appealed to the Board and, by decision dated September 25, 2019,4 the Board
affirmed OWCP’s March 8, 2019 decision.
In a letter dated September 21, 2020 and entered into the Integrated Federal Employees’
Compensation System (iFECS) on September 28, 2020, appellant requested reconsideration of her

2
Appellant has a prior claim OWCP File No. xxxxxx427, for which she filed an occupational disease claim (Form
CA-2) in January 2003. In March 2003 OWCP accepted the claim for bilateral carpal tunnel syndrome. Appellant
filed a notice of recurrence (Form CA-2a) in October 2008 alleging a recurrence of disability due to the accepted
bilateral carpal tunnel syndrome condition. OWCP converted appellant’s recurrence claim to a claim for a new
occupational injury, and assigned OWCP File No. xxxxxx340. In May 2009, it accepted that claim for aggravation
of bilateral carpal tunnel syndrome. OWCP administratively combined OWCP File Nos. xxxxxx427, xxxxxx340, and
xxxxxx503, with OWCP File No. xxxxxx427 designated as the master file.
3

Prior to the referral to Dr. Buchman, OWCP referred appellant to three other impartial medical specialists, but it
found deficiencies in their evaluations, which required the referral to Dr. Buchman.
4

Supra note 1.

2

claim. On September 28, 2020 OWCP received a February 17, 2020 report from Dr. GriasRadwanski who provided an extensive discussion of appellant’s work duties and opined that she
had sustained several new occupational conditions due to these duties. 5
By decision dated October 19, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. In reaching
this decision, it did not discuss any evidence submitted by appellant in connection with her
reconsideration request.
In an October 28, 2020 letter, appellant argued that she filed a timely reconsideration
request in that a postal record demonstrated that, on September 25, 2020, OWCP had received her
reconsideration request letter, dated September 21, 2020. She submitted a U.S. Postal Service
tracking document that indicated a package was delivered on September 25, 2020 to an address in
London, Kentucky.
In a September 21, 2020 letter received by OWCP on November 4, 2020, appellant argued
that she had submitted sufficient medical evidence to establish several new employment-related
occupational conditions. She indicated that she had submitted additional medical evidence,
including a new report of Dr. Grias-Radwanski.
In an October 28, 2020 letter received by OWCP on the same date, appellant again argued
that she filed a timely reconsideration request on September 25, 2020.
By decision dated January 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that she had, in fact, filed a timely
reconsideration request, but determined that she had not submitted evidence or argument entitling
her to merit review. OWCP asserted that appellant had not submitted any new medical evidence
in connection with her reconsideration request.
The Board finds that this case is not in posture for decision with respect to whether
appellant sustained a new employment-related occupational condition.
FECA provides that OWCP shall determine and make ﬁndings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim.6 Since
the Board’s jurisdiction of a case is limited to reviewing the evidence which is before OWCP at the
time of its final decision, 7 it is necessary that OWCP review all evidence submitted by a claimant
and received by OWCP prior to issuance of its final decision. As the Board’s decisions are final as

5

Appellant also submitted a May 15, 2018 report from Dr. Peter E. Metropoulos, an attending osteopath and Boardcertified occupational medicine specialist, and a March 3, 2020 report from Dr. Mitchell Pollak, a Board-certified
orthopedic surgeon. The reports had previously been submitted and considered by OWCP.
6

5 U.S.C. § 8124(a)(2).

7

20 C.F.R. § 501.2(c).

3

to the subject matter appealed, 8 it is crucial that all evidence relevant to that subject matter which
was properly submitted to OWCP prior to the time of issuance of its final decision be addressed by
OWCP.9
In the present case, OWCP did not review evidence received p rior to the issuance of its
January 7, 2021 decision, i.e., a February 17, 2020 report of Dr. Grias-Radwanksi. The Board,
therefore, must set aside this decision of OWCP and remand the case so that OWCP may fully
consider the evidence that was properly submitted by appellant prior to the issuance of the January 7,
2021 decision. Following this and such other further development it deems necessary, OWCP shall
issue an appropriate decision regarding appellant’s occupational disease claim.
IT IS HEREBY ORDERED THAT the January 7, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 30, 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

8

Id. at § 501.6(d).

9

T.B., Docket No. 19-1841 (issued July 7, 2020); E.P., Docket No. 14-0278 (issued February 26, 2014). See also
William A. Couch, 41 ECAB 548, 553 (1990).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Mays Landing, NJ,
Employer
__________________________________________

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

Docket No. 07-1678
Issued: December 20, 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 June 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 15, 2007 merit decision concerning an overpayment of
compensation and the Office’s May 3, 2007 decision denying his request for a prerecoupment
hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether appellant received a $2,390.90 overpayment of compensation
for the period October 1 to 14, 2006; (2) whether the Office abused its discretion by refusing to
waive recovery of the overpayment; and (3) whether the Office properly required repayment of
the overpayment by deducting $200.00 from appellant’s compensation payments every four
weeks.

FACTUAL HISTORY
The Office accepted that on July 13, 2006 appellant, then a 40-year-old federal air
marshal, sustained a right hip strain and sprain while participating in a fitness assessment at
work. The Office paid appellant appropriate compensation for periods of disability. On
October 10, 2006 appellant underwent right hip surgery which was authorized by the Office.
In a December 8, 2006 notice, the Office advised appellant of its preliminary
determination that he received a $2,390.90 overpayment of compensation for the period
October 1 to 14, 2006. The Office indicated that on October 10, 2006 appellant received a
$2,390.90 compensation check for the period October 1 to 14, 2006 and that on October 27, 2006
he received a $2,389.40 compensation check for the period October 1 to 14, 2006. The Office
stated that the $2,390.90 overpayment occurred because appellant was only entitled to receive
$2,389.40 in compensation for the period October 1 to 14, 2006.1
The Office also made a preliminary determination that appellant was not at fault in the
creation of the overpayment. It advised appellant that he could submit evidence challenging the
fact, amount or finding of fault and request waiver of the overpayment. The Office informed
appellant that he could submit additional evidence through various methods including presenting
it at a prerecoupment hearing, but that a prerecoupment hearing must be requested within 30
days of the date of the written notice of overpayment. It requested that appellant complete and
return an enclosed financial information questionnaire within 30 days even if he was not
requesting waiver of the overpayment.
Appellant requested a prerecoupment hearing in a form sent in an envelope postmarked
March 5, 2007. He also requested waiver of the overpayment in the same form. Appellant
argued that the overpayment should be waived because he had financial difficulties due to the
fact that he only received 75 percent of his usual salary. In the financial information
questionnaire completed on February 21, 2007, appellant indicated that he had $4,660.55 in
monthly expenses comprised of $1,500.00 for mortgage and property tax payments, $400.00 for
food, $1,400.00 for utilities, $230.55 for second mortgage payments, $30.00 for credit card
payment and $1,100.00 for payments of his wife’s debts.2 He stated that he had $5,983.00 in
monthly income but did not detail the source of this income and indicated that he had $1,100.00
in assets comprised of checking and savings account monies.
In a May 3, 2007 decision, the Office denied appellant’s request for a prerecoupment
hearing on the grounds that his March 5, 2007 request was not made within 30 days of the
December 8, 2006 preliminary notice of overpayment. The Office informed appellant that he
could address his concerns regarding waiver by submitting additional information to the Office.

1

The Office contains records showing that appellant was only entitled to receive $2,389.40 in compensation for
the period October 1 to 14, 2006 and that he was sent $2,390.90 and $2,389.40 compensation checks on October 10
and 27, 2006 respectively. Both checks, which were electronically transferred, specifically indicated that they
covered the period October 1 to 14, 2006.
2

Appellant indicated that these expenses add up to $4,930.55 but they actually add up to $4,660.55.

2

In a May 15, 2007 decision, the Office determined that appellant received a $2,390.90
overpayment of compensation. The Office found that appellant was not at fault in the creation of
the overpayment, but that the overpayment was not subject to waiver. It determined that
recovery of the overpayment would not defeat the purpose of the Federal Employees’
Compensation Act or would be against equity and good conscience. The Office indicated that
appellant reported that he had $5,983.00 in monthly income but determined that it appeared he
actually had $5,180.28 in monthly income from his monthly Office compensation payment.3
The Office found that appellant did not need substantially all of his current income to meet
ordinary and necessary living expenses because his $5,180.28 of monthly income exceeded his
$4,660.55 of monthly expenses by $519.73. The Office indicated that appellant’s financial
situation showed that it was reasonable to require repayment of the overpayment by deducting
$200.00 from his compensation payments every four weeks.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Act provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 Section 8129(a) of the Act provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”5
Section 8116(a) of the Act provides that, while an employee is receiving compensation or
if he has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.6
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received a $2,390.90
overpayment of compensation. Appellant received $4,730.30 in compensation for the period
October 1 to 14, 2006 despite the fact that he was only entitled to receive $2,389.40
compensation for this period. The record contains evidence which shows that on October 10,
2006 appellant received a $2,390.90 compensation check for the period October 1 to 14, 2006
and that on October 27, 2006 he received a $2,389.40 compensation check for the period
October 1 to 14, 2006. The record also contains evidence showing that appellant was only
3

The record contains a document which indicates that appellant received $5,968.25 in Office compensation for
the period August 27 to September 30, 2006.
4

5 U.S.C. § 8102(a).

5

5 U.S.C. § 8129(a).

6

5 U.S.C. § 8116(a).

3

entitled to receive $2,389.40 in compensation for the period October 1 to 14, 2006. Therefore,
the Office properly determined that appellant received a $2,390.90 overpayment.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.7 These statutory
guidelines are found in section 8129(b) of the Act which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”8 Since the Office found
appellant to be without fault in the matter of the overpayment, then, in accordance with section
8129(b), the Office may only recover the overpayment if it determined that recovery of the
overpayment would neither defeat the purpose of the Act nor be against equity and good
conscience.
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of the Act or would be against equity and good conscience are set forth in sections
10.322 and 10.323, respectively, of the Code of Federal Regulations. Section 10.322(a)
provides, generally, that recovery of an overpayment would defeat the purpose of the Act if
recovery would cause hardship by depriving the overpaid individual of income and resources
needed for ordinary and necessary living expenses and, also, if the individual’s assets, those
which are not exempt from recovery, do not exceed a resource base of $3,000.00 (or $5,000.00 if
the individual has a spouse or one dependent, plus $600.00 for each additional dependent).9
Section 10.323 provides, generally, that recovery of an overpayment would be against equity and
good conscience if: (1) the overpaid individual would experience severe financial hardship in
attempting to repay the debt, with “severe financial hardship” determined by using the same
criteria set forth in section 10.322; or (2) the individual, in reliance on the payment which created
the overpayment, relinquished a valuable right or changed his position for the worse.10

7

See Robert Atchison, 41 ECAB 83, 87 (1989).

8

5 U.S.C. § 8129(b).

9

20 C.F.R. § 10.322(a). Section 10.322 defines the terms “income,” “expenses” and “assets.” 20 C.F.R.
§ 10.322(b), (c) and (d). For waiver under the “defeat the purpose of the Act” standard, a claimant must show both
that he needs substantially all of his current income to meet ordinary and necessary living expenses and that his
assets do not exceed the applicable resource base. See George E. Dabdoub, 39 ECAB 929, 935-36 (1988);
Robert E. Wenholz, 38 ECAB 311, 314 (1986). An individual is deemed to need substantially all of his current
income to meet ordinary and necessary living expenses if his monthly income does not exceed monthly expenses by
more than $50.00. See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Actions, Chapter 6.200.6a(1) (September 1994); Connie L. Potratz-Hasson, 42 ECAB 359, 363 (1991); 20 C.F.R.
§ 10.323.
10

20 C.F.R. § 10.323.

4

ANALYSIS -- ISSUE 2
Appellant has not established that recovery of the overpayment would defeat the purpose
of the Act because he has not shown both that he needs substantially all of his current income to
meet ordinary and necessary living expenses and that his assets do not exceed the allowable
resource base. The record shows that appellant’s monthly expenses were $4,660.55. Appellant
reported that he had $5,983.00 in monthly income without identifying the source of the income
and the Office determined that he had $5,180.28 in monthly income from his monthly Office
compensation payment without explaining this conclusion.11 Regardless of which figure is
accepted as appellant’s monthly income, it is clear that his current income exceeds his current
ordinary and necessary living expenses by far more than $50.00. Appellant has not shown that
he needs substantially all of his current income to meet current ordinary and necessary living
expenses.12 Because appellant has not met the first prong of the two-prong test of whether
recovery of the overpayment would defeat the purpose of the Act, it is not necessary for the
Office to consider the second prong of the test, i.e., whether appellant’s assets do not exceed the
allowable resource base.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because he has not shown, for the reasons noted above, that he
would experience severe financial hardship in attempting to repay the debt or that he
relinquished a valuable right or changed his position for the worse in reliance on the payment
which created the overpayment.13
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of the Act or be against equity and good conscience, he has failed to show that the
Office abused its discretion by refusing to waive the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.321 of Title 20 of the Code of Federal Regulations provides in pertinent part:
“Whenever an overpayment has been made to an individual who is entitled to
further payments, proper adjustment shall be made by decreasing subsequent
payments of compensation, having due regard to the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual
and any other relevant factors, so as to minimize any resulting hardship upon such
individual.”14

11

It is undisputed that appellant continued to receive Office compensation during this period.

12

See supra note 9 and accompanying text.

13

See William J. Murphy, 41 ECAB 569, 571-72 (1989).

14

20 C.F.R. § 10.321(a). See Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

5

ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the overpayment by deducting
$200.00 from appellant’s compensation payments every four weeks, the Office took into
consideration the financial information submitted by appellant as well as the factors set forth in
section 10.321 and found that this method of recovery would minimize any resulting hardship on
appellant. Therefore, the Office properly required repayment of the overpayment by deducting
$200.00 from appellant’s compensation payments every four weeks.
LEGAL PRECEDENT -- ISSUE 4
The Office’s procedures on the recovery of overpayments are found in the Code of
Federal Regulations at 20 C.F.R. § 10.321. The regulations provide that, before collecting an
overpayment, the Office must provide the claimant with written notice of the fact and amount of
overpayment, the finding of fault, the right to submit evidence challenging the fact, amount, or
finding of fault, and the right to request waiver of the overpayment.15 The regulations also
provide that a claimant is entitled to submit additional evidence in writing or at prerecoupment
hearing, that a prerecoupment hearing must be requested within 30 days of the date of the written
notice of overpayment, and that “[f]ailure to request the hearing within this 30-day time period
shall constitute a waiver of that right.”16
ANALYSIS -- ISSUE 4
Appellant was notified of the overpayment by written notice dated December 8, 2006.
He requested a prerecoupment hearing in a form sent in an envelope postmarked March 5, 2007,
which was more than 30 days after the December 8, 2006 notice of an overpayment. Because
appellant’s request for a prerecoupment hearing was untimely, he has waived his right to a
prerecoupment hearing. The Board notes that the Office properly informed appellant that he
may address his concerns regarding waiver by submitting any additional information to the
Office. Accordingly, the Office properly denied appellant’s request for a prerecoupment
hearing.
CONCLUSION
The Board finds that appellant received a $2,390.90 overpayment of compensation for the
period October 1 to 14, 2006 and that the Office did not abuse its discretion by refusing to waive
recovery of the overpayment. The Board further finds that the Office properly required
repayment of the overpayment by deducting $200.00 from appellant’s compensation payments
every four weeks and it properly denied his request for a prerecoupment hearing.

15

20 C.F.R. § 10.431.

16

20 C.F.R. § 10.432.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 15 and 3, 2007 decisions are affirmed.
Issued: December 20, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Norton, VA, Employer
__________________________________________

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

Docket No. 19-0501
Issued: October 18, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 8, 2019 appellant filed a timely appeal from a December 3, 2018 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 a date of maximum
medical improvement (MMI) prior to August 6, 2018.
FACTUAL HISTORY
On June 21, 2018 appellant, then a 61-year-old coal mine safety and health inspector, filed
an occupational disease claim (Form CA-2) alleging that he developed hearing loss due to
exposure to machinery noise while in the performance of duty. He noted that he first became
aware of his condition, and its relationship to his federal employment, on September 4, 2007. On
1

5 U.S.C. § 8101 et seq.

the reverse side of the claim form the employing establishment indicated that appellant was last
exposed to conditions alleged to have caused his disease or illness on June 7, 2018.
OWCP received a series of employing establishment audiogram reports dating from
June 26, 2007 through June 8, 2017.
In a letter dated July 18, 2018, OWCP referred appellant to Dr. Zaven H. Jabourian, an
otolaryngologist, for a second opinion evaluation to determine whether appellant sustained a
ratable hearing loss causally related to factors of his federal employment.
In a report dated August 6, 2018, Dr. Jabourian reviewed the statement of accepted facts
(SOAF) and appellant’s medical history. He related that appellant’s hearing loss was causally
related to the factors of his federal employment. Utilizing the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),2
Dr. Jabourian reviewed an August 6, 2018 audiogram, performed at his request, and noted pure
tone averages (PTA) for 500, 1,000, 2,000, and 3,000 Hertz (Hz). He related that the audiogram
revealed decibel (dB) losses of 15, 20, 30, and 55 respectively for the right ear. These dB losses
were totaled at 120 and divided by 4 to determine an average loss at those cycles of 30 dBs. The
average of 30 dBs was then reduced by the first 25 dBs to equal 5 and multiplied by 1.5 to reach a
7.5 percent monaural impairment for the right ear. Appellant’s left ear dB losses of 20, 20, 35,
and 55 were totaled at 130 dBs, the average of 35 dB was then reduced by 25 dB and multiplied
1.5 to total an 11.25 percent monaural impairment for the left ear. Dr. Jabourian then determined
the binaural loss by multiplying the lesser loss by 5, adding the greater loss, and divided the total
by six to total 8.125. He also indicated that appellant had a 1 percent binaural impairment due to
tinnitus, and concluded that appellant had a 9.125 percent binaural hearing impairment rating.
Dr. Jabourian related that appellant’s date of maximum medical improvement (MMI) was
August 6, 2018.
On August 28, 2018 OWCP accepted appellant’s claim for binaural sensorineural hearing
loss.
On September 4, 2018 appellant filed a claim for a schedule award (Form CA-7).
On September 4, 2018 Dr. Jeffrey M. Israel, a Board-certified otolaryngologist acting as
an OWCP district medical adviser (DMA), reviewed appellant’s medical record and SOAF. He
agreed that appellant had a noise-induced sensorineural hearing loss due to his employment-related
noise exposure and determined that appellant had reached MMI on August 6, 2018, the date of his
most recent audiogram. Dr. Israel further indicated that appellant had a right monaural hearing
loss of 7.5 percent, a left monaural hearing loss of 11.25 percent, and calculated binaural loss of
8.125 percent. He concurred with Dr. Jabourian that appellant was entitled to a 1 percent binaural
award for tinnitus in addition to the calculated binaural loss, which totaled 9.125 percent.
By decision dated December 3, 2018, OWCP granted appellant a schedule award for 9
percent binaural hearing loss. It determined that the date of maximum medical improvement was
August 6, 2018, the date of Dr. Jabourian’s findings, including the audiogram. The schedule award
ran for the period August 6 to December 9, 2018 for a total of 18 weeks of compensation.
2

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

2

LEGAL PRECEDENT
It is well established that the period covered by a schedule award commences on the date
that the employee reaches MMI from the residuals of the employment injury. The Board has
defined MMI as meaning that the physical condition of the injured member of the body has
stabilized and will not improve further. The question of when MMI has been reached is a factual
one that depends upon the medical findings in the record. The determination of such date is to be
made in each case upon the basis of the medical evidence in that case. 3 The date of MMI is usually
considered to be the date of the medical examination that determined the extent of the impairment. 4
The Board has also noted a reluctance to find a date of MMI, which is retroactive to the
award, as retroactive awards often result in payment of less compensation benefits. The Board,
therefore, requires persuasive proof of MMI in the selection of a retroactive date of MMI.5 The
determination of whether MMI has been reached is based on the probative medical evidence of
record and is usually considered to be the date of the evaluation by the attending physician, which
is accepted as definitive by OWCP. 6
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a date of MMI
prior to August 6, 2018.
In its December 3, 2018 decision, OWCP granted appellant a schedule award for nine
percent binaural hearing loss. It determined a period of award from August 6 to December 9,
2018, based on the date of Dr. Jabourian’s findings, which included his most recent audiogram of
August 6, 2018. On appeal appellant does not contest the finding that he was entitled to a schedule
award for a nine percent binaural hearing loss,7 but asserts that the period of award should be paid
retroactively from the date of a prior hearing evaluation on May 14, 2018, or the date he filed the
claim, June 21, 2018.
Based on the evidence of record, the Board finds that there is no indication that OWCP
improperly utilized August 6, 2018 as the date of MMI for appellant’s schedule award and,
furthermore, it correctly determined that the date of the award started August 6, 2018. 8
Dr. Jabourian determined appellant’s date of MMI to be August 6, 2018, the date of his most recent
audiogram, and Dr. Israel, serving as the DMA, concurred with Dr. Jabourian’s MMI date

3
C.R., Docket No. 17-1872 (issued March 8, 2018); Peter C. Belkind, 56 ECAB 580 (2005); Marie J. Born, 27
ECAB 623 (1976).
4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3 (January 2010).

5

R.M., Docket No. 18-1313 (issued April 11, 2019); J.H., Docket No. 14-1584 (issued October 5, 2016).

6

R.M., id.; Mark A. Halloway, 55 ECAB 321, 325 (2004).

7

While appellant’s binaural hearing loss totaled 9.125 percent, the Board has noted that percentages should not be
rounded until the final percent for award purpose is obtained, and fractions should be rounded down from .49 and up
from .50. See R.B., Docket No. 19-0257 (issued August 5, 2019).
8

S.H., Docket No. 15-0809 (issued October 19, 2015); L.M., Docket No. 09-0690 (issued December 29, 2009).

3

designation.9 The period covered by a schedule award commences on the date that the employee
reaches MMI from the residuals of the employment injury. 10 The Board has held that the date of
MMI is based on the probative medical evidence of record and is usually considered to be the date
of the evaluation, which is accepted as definitive by OWCP. 11 As both physicians concurred that
date to be August 6, 2018, OWCP properly determined that appellant’s schedule award
commenced August 6, 2018. Appellant has not presented any persuasive evidence establishing
that he reached MMI prior to August 6, 2018.
Appellant may request a schedule award or an increased schedule award at any time 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 not met his burden of proof to establish a date of MMI
prior to August 6, 2018.

9

The Board is reluctant to find a retroactive date of MMI absent persuasive proof. E.L., Docket No. 13-0943
(issued November 8, 2013).
10

Supra note 3.

11

Supra note 6.

4

ORDER
IT IS HEREBY ORDERED THAT the December 3, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 18, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5