United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEFENSE AGENCIES, EDUCATION
ACTIVITIES OVERSEAS HUMAN
RESOURCES DIRECTOR, BENEFITS
BRANCH, Alexandria, VA, Employer
__________________________________________

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Appearances:
Brett E. Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1288
Issued: September 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 18, 2015 appellant, through counsel, filed a timely appeal from a December 4,
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 over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on August 30, 2012.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 10, 2012 appellant, then a 55-year-old video communications teacher in
Okinawa, Japan, filed a traumatic injury claim (Form CA-1) alleging that on August 30, 2012 he
sustained a back, neck, elbow, and knee injury when he was breaking up a fight between two
students and fell to the ground. In support of his claim, he submitted witness statements
describing the incident.
In a September 9, 2012 Attending Physician’s Report (Form CA-20), Dr. Yasutsugu
Yanami, Board-certified in internal medicine, reported that appellant was controlling a fight
between students 10 days earlier and then later complained of back, arm, and knee pain. He
diagnosed muscle sprain at the arms, neck, and lower back and checked the box marked “No”
when asked if he believed that the condition was caused or aggravated by the employment
incident. Appellant was first examined on September 9, 2012 and released to full duty on
September 10, 2012.
On January 30, 2014 appellant filed a claim for a schedule award (Form CA-7).
By letter dated February 10, 2014, OWCP stated that when appellant’s claim was
received, it appeared to be a minor injury, which had resulted in minimal lost time from work,
and payment of a limited amount of medical expenses. For this reason the claim was
administratively approved. However, the merits of the claim had not been formally considered
and it reopened the claim for consideration because appellant filed a claim for a schedule award.
OWCP informed him that the evidence of record was insufficient to support the merits of his
claim. Appellant was advised of the medical and factual evidence needed and was directed to
submit such evidence within 30 days.
By letter dated March 10, 2014, appellant requested additional time to submit medical
reports, as he had to acquire them from the Naval Hospital in Okinawa, Japan. He further stated
that his treating physician refused to fill out the workers’ compensation form and he continued to
suffer from pain in his back and arms as a result of the work-related incident.
By decision dated April 3, 2014, OWCP denied appellant’s claim finding the evidence
was insufficient to establish that he sustained an injury because he did not submit any medical
evidence containing a medical diagnosis in connection with the accepted August 30, 2012
employment incident. It further noted that his physician opined that his musculoskeletal
conditions were not caused or aggravated by the employment incident.
On October 21, 2014 appellant, through counsel, requested reconsideration of OWCP
decision. Counsel stated that he was submitting a report from Dr. Aliyar Parvin, Board-certified
in family medicine, who provided a diagnosis of Non-Arteritic Anterior Ischemic Optic
Neuropathy (NAION) with a rationalized opinion that the physical altercation at work caused
appellant’s injury.
In an October 20, 2014 medical report, Dr. Parvin reported that he had reviewed
appellant’s prior medical reports and spoken with him pertaining to the circumstances
surrounding his work injury. He noted a past medical history significant for mild hypertension,
2

hyperlipidemia, and obesity. However, appellant was asymptomatic with regard to these
diagnosed conditions and a full physical examination by a primary care physician in the sixmonth period prior to his injury revealed no concern or need for further testing. Based on these
findings, Dr. Parvin determined that appellant was in relatively good health and stable condition
prior to the work injury.
Dr. Parvin described the employment incident on August 29, 2012 when appellant was
forced to wrestle a disruptive student to the ground and in the process was kicked, punched, and
elbowed multiple times. Appellant stated that initially he mainly felt pain in his lower back,
similar to a “pinched nerve or slipped disc,” and his arms. He denied any loss of consciousness,
headaches, syncope, loss of vision, nausea, or vomiting.
Following the incident, appellant was first seen by a Japanese physician on September 3,
2012 and prescribed pain medications for the musculoskeletal pain he was experiencing
following the incident. The pain was localized predominantly to his lower back and arms, but he
stated that he felt “sore all over”. Dr. Parvin noted that there was no mention of any loss of
consciousness, headaches, syncope, loss of vision, nausea, or vomiting. On September 26, 2012
appellant awakened with a loss of vision in his left eye and immediately sought medical attention
at the Navy hospital emergency department where he was diagnosed with NAION. The
diagnosis was again confirmed by an Ophthalmologist he saw the following day.
Dr. Parvin noted that appellant was in a stable and relatively healthy condition prior to
the incident because his physical examination less than one year prior revealed well controlled
blood pressures, no signs of hyperglycemia or insulin resistance, no visual impairments, no
headaches, or any other systemic or focal symptoms. He explained that a major risk factor for
NAOIN involved a cumulative group of general cardiovascular factors, the most common being
diabetes, hypertension, and high cholesterol. Dr. Parvin explained that appellant had the latter
two risk factors. He further explained that the most common precipitating factor, i.e. mechanism
of injury, is a marked fall in the blood pressure during sleep (nocturnal arterial hypotension)
which is why at least 75 percent of patients present with visual loss on first awaking from sleep,
consistent with appellant’s own presentation. Thus, the underlying question was did the
altercation that appellant was involved in contribute in any way to his presentation of NAION.
Dr. Parvin explained that the visual loss had occurred less than one month after the
altercation. He stated that physiologically, any dramatic, or strenuous physical activity (i.e., a
physical altercation) would cause the release of stimulatory fight or flight hormones and
neurotransmitters, resulting in an increased heart rate, blood pressure, intracranial pressure, core
temperature, and basal metabolism. Additionally, physical pain (like the persistent back pain
that appellant experienced) could cause the same exact response, albeit at a lower intensity.
Dr. Parvin noted that appellant was involved in an altercation on August 29, 2012 which
resulted in physiological changes that lead to an increased heart rate, blood pressure, intracranial
pressure, core temperature, and basal metabolism. Following the incident, appellant had low
back pain which was not well controlled with the medical management he received, leading to
persistent high blood pressures, heart rates, and intracranial pressures, etc. He then suddenly lost
his vision.

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Dr. Parvin stated that an argument for causation could be made from the temporal
association between the altercation with the student and appellant’s loss of vision given he likely
had a persistently elevated average blood pressure for the month following the altercation,
ultimately leading to an even greater nighttime drop in blood pressures (nocturnal arterial
hypotension). This greater drop ultimately led to a greater level of hypoperfusion and damage to
appellant’s optic nerve. Dr. Parvin stated that this was highly plausible and fit the chronology of
the aforementioned event.
Dr. Parvin concluded that appellant’s loss of vision secondary to NAION had a strong
temporal association with, and was a plausible mechanism of injury, related to the preceding
altercation and its immediate effects in the following month. Consequently, while it would be
difficult to assign precise percentages to such components of the injury, he opined that the
altercation contributed to his current injury.
By decision dated December 4, 2014, OWCP affirmed the August 3, 2014 decision, as
modified, finding that appellant established a firm medical diagnosis because the diagnoses of
muscle sprain of the arms, neck, and lower back were made contemporaneous to the work injury.
It denied the claim, however, finding that the medical evidence failed to establish that the
diagnosed conditions were causally related to the accepted August 30, 2012 employment
incident. OWCP further found that, although the condition of NAION was diagnosed, the
evidence did not contain examination findings or medical records to establish the diagnosis or
the relationship to the injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.3
To determine whether an employee actually sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.4 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.

2

Gary J. Watling, 52 ECAB 278 (2001).

3

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

4

Elaine Pendleton, 40 ECAB 1143 (1989).

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To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence supporting such a causal relationship.5 The opinion of the physician
must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant. This medical opinion must include an accurate history of the employee’s
employment injury and must explain how the condition is related to the injury. The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.6
ANALYSIS
OWCP accepted that the August 30, 2012 employment incident occurred as alleged. The
issue is whether appellant established that the incident caused him injury. The Board finds that
he did not submit sufficient medical evidence to support that his diagnosed conditions are
causally related to the August 30, 2012 employment incident.7
In a September 9, 2012 Attending Physician’s Report, Dr. Yanami reported that appellant
was controlling a fight between students 10 days prior and complained of back, arm, and knee
pain. He diagnosed muscle sprain at the arms, neck, and lower back and checked the box
marked “No” when asked if he believed that the condition was caused or aggravated by the
employment incident. The Board finds that Dr. Yanami’s report is insufficient to establish
appellant’s claim because the physician opined that appellant’s muscle sprains were not, in fact,
caused by the work-related incident. Thus, Dr. Yanami’s report does not provide support for a
traumatic injury and is insufficient to meet appellant’s burden of proof.8
In an October 20, 2014 medical report, Dr. Parvin reported that he reviewed appellant’s
prior medical reports and spoke with him pertaining to the circumstances surrounding his work
injury. He noted a past medical history significant for mild hypertension, hyperlipidemia, and
obesity. Dr. Parvin noted that appellant was asymptomatic based on a physical examination six
months prior. He concluded that appellant was in good health and a stable condition prior to the
work injury. Dr. Parvin noted that on August 29, 2012 appellant was forced to wrestle a
disruptive student to the ground and in the process was kicked, punched, and elbowed multiple
times. Appellant stated that initially he mainly felt pain in his lower back, similar to a “pinched
nerve or slipped disc,” and his arms and denied any loss of consciousness, headaches, syncope,
loss of vision, nausea, or vomiting.

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

See Robert Broome, 55 ECAB 339 (2004).

8

S.R., Docket No. 12-1098 (issued September 19, 2012).

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The Board finds that the opinion of Dr. Parvin is not well rationalized.9 Dr. Parvin failed
to physically examine appellant or provide any findings based on his own examination. OWCP
procedures state that greater probative value is given to a medical opinion based on an actual
examination. An opinion based on a cursory or incomplete examination will have less value
compared to an opinion based on a more complete evaluation.10 In this instance, Dr. Parvin
noted review of prior medical reports and provided a medical history based on these reports,
more than two years after the employment incident. Moreover, the prior reports he references
are not of record. Because they are unavailable they cannot support the medical opinions
offered.
The Board further finds that Dr. Parvin’s opinion that the work-related altercation
contributed to appellant’s NAION condition is highly speculative and equivocal.11 Dr. Parvin
explained that an argument could be made of temporal association between the altercation with
the student and appellant’s loss of vision given he likely had a persistently elevated average
blood pressure for the month following the altercation, ultimately leading to an even greater
nighttime drop in blood pressures (nocturnal arterial hypotension). However, he is not certain
that appellant’s blood pressure was elevated the month following the altercation and there are no
medical reports of record establishing an elevation. Dr. Parvin goes on to speculate that the
greater drop ultimately lead to a greater level of hypoperfusion and thus ischemia of the optic
nerve, despite not knowing if appellant’s blood pressure was elevated to begin with. The
speculative nature of his statement is fortified when he states that this mechanism of injury was
highly plausible and fit the chronology of the aforementioned event.12 Dr. Parvin did not
evaluate appellant at the time of the vision loss and provided a report over two years after the
initial traumatic incident. The record contains no report from a physician contemporaneous to
the time of the incident which establishes that appellant’s NAION was caused by the August 30,
2012 employment incident. Nor does the record contain medical examination findings and
reports which actually establish that appellant had a persistently elevated average blood pressure
for the month following the altercation which suddenly dropped at nighttime, ultimately leading
to his loss of vision. An explanation such as this, not supported by physical findings, does not
constitute a well-rationalized medical opinion.13
Dr. Parvin noted that appellant was in a stable and relatively healthy condition prior to
the incident because his physical examination less than one year prior revealed well controlled
blood pressures, no signs of hyperglycemia or insulin resistance, no visual impairments, no
headaches, or any other systemic or focal symptoms. The Board has held that an opinion that a
9

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.6(a)(4) (September 2010).
11

M.R., Docket No. 14-11 (issued August 27, 2014).

12

A medical opinion couched in such terms as “might be,” “could be,” or “may be” does not have as much
probative value as an opinion stated unequivocally or with reasonable medical certainty. Supra note 10 at Chapter
2.810.5(c)(3).
13

Id. at Chapter 2.810.6(a)(2).

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condition is causally related because the employee was asymptomatic before the injury is
insufficient, without adequate rationale, to establish causal relationship.14 The record contains
no documented reports of elevated blood pressure levels or complaints involving the eye. The
only medical report contemporaneous with the initial incident is Dr. Yanami’s report which
diagnosed muscle sprain at the arms, neck, and lower back yet Dr. Parvin failed to provide any
discussion regarding these injuries.
Medical reports without adequate rationale on causal relationship are of diminished
probative value and do not meet an employee’s burden of proof.15 The opinion of a physician
supporting causal relationship must rest on a complete factual and medical background supported
by affirmative evidence, address the specific factual and medical evidence of record, and provide
medical rationale explaining the relationship between the diagnosed condition and the
established incident or factor of employment.16 As Dr. Parvin’s opinion was entirely speculative
as to the cause of appellant’s vision loss, his opinion is of limited probative value, and
insufficient to meet his burden of proof.17
On appeal, counsel for appellant argues that Dr. Parvin’s report establishes appellant’s
claim or at the very least requires further development of the medical evidence. The Board notes
that it is appellant’s burden to establish that his NAION was causally related to the August 30,
2012 employment incident.18 An award of compensation may not be based on surmise,
conjecture, or speculation. Neither the fact that appellant’s condition became apparent during a
period of employment nor the belief that his condition was caused, precipitated, or aggravated by
his employment is sufficient to establish causal relationship.19 As he failed to provide a
rationalized medical report in support of a traumatic injury on August 30, 2012, he has failed to
meet his burden of proof. Thus, the Board finds that the medical evidence does not establish that
appellant sustained an injury causally related to the August 30, 2012 employment incident.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained traumatic injury in the performance of duty on August 30, 2012

14

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

15

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

16

See Lee R. Haywood, 48 ECAB 145 (1996).

17

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
18

O.S., Docket No. 13-438 (issued July 15, 2014).

19

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

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated December 4, 2014 is affirmed.
Issued: September 18, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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.E., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Benning, GA, Employer
_________________________________________

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Appearances:
Alfonza Whitaker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1527
Issued: April 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 12, 2010 appellant, through counsel, filed a timely appeal of the November 16,
2009 and March 31, 2010 decisions of the Office of Workers’ Compensation Programs affirming
the denial of her claim for compensation for the period August 3 through October 26, 2009.1 Her
appeal is also timely filed from the Office’s March 30, 2010 decision denying her claim that
certain preexisting conditions were aggravated by the accepted work incident. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.2

1

Under the Board’s Rules of Procedure, in computing the date of filing of an appeal, the 180 days begins to run
on the date following the date of the Office decision. 20 C.F.R. § 501.3(f)(2). The time began to run for the
November 16, 2009 decision on November 17, 2009 from which 180 days fell on Sunday, May 16, 2010. Appellant
had until the close of the next business day, May 17, 2010 to timely submit her appeal. Her appeal was postmarked
May 12, 2010, so it was timely filed. See 20 C.F.R. § 501.3(f)(1).
2

Appellant has not filed an appeal from the Office’s March 4, 2010 decision denying her claim for an emotional
condition. As such, the Board has jurisdiction to review it. See 20 C.F.R. § 501.3.

ISSUES
The issues are: (1) whether appellant established an employment-related disability from
August 3 through October 26, 2009; and (2) whether appellant sustained an aggravation of her
preexisting cervical, thoracic and lumbar spondylosis, right shoulder rotator cuff tendinitis, right
carpal tunnel syndrome and lumbar radiculopathy as a result of her January 12, 2009
employment injury.
On appeal, appellant argued that the Office erred in ignoring the report of her treating
physician and did not explain why this report was incomplete or based on an inaccurate factual
background.
FACTUAL HISTORY
On January 27, 2009 appellant, then a 49-year-old supply technician, filed a traumatic
injury claim alleging that, on January 12, 2009, while her supervisor and assistant supervisor
tried to prevent her from leaving the supervisor’s office and the building, she was held, pushed,
pulled, jerked and snatched around. She alleged that, as a result, she suffered neck and chest
pains on the right side and pains in her right arm, hand, upper leg and entire back.
In statements dated January 12 and 17, 2009, appellant indicated that she was called into
the Office of the First Sergeant (1SG) Michael S. Oliver on January 12, 2009 by Sergeant First
Class (SFC) Anthony Green; that 1SG Oliver initiated the meeting by stating that he was giving
her a warning; that she wished to copy the document and confer with the Civilian Personnel
Advisory Center before signing but that 1SG Oliver insisted she sign it; that she attempted to
leave the office with the document but that 1SG Oliver told SFC Green to stop her and not let her
leave the Office; that SFC Green immediately jumped in front of her and that 1SG Oliver and
SFC Green forcibly restrained her, holding her against her will. She noted that she managed to
get past them after squirming, twisting and yelling but that they pursued her and tried to take the
document away and in doing so they began jerking, pulling and twisting her body trying to
loosen the grip of the document.
An Equal Employment Opportunity (EEO) counselor’s report signed on February 5, 2009
indicated that a resolution had been reached with regard to appellant’s complaint with regard to
the January 12, 2009 incident and she was reassigned to another job with no loss of pay. In
discussing her case, the EEO counselor discussed written statements and interviews with various
persons, including 1SG Oliver, SFC Mario Garcia, SFC Green and Felisha Griffin.
In a May 17, 2009 report, 1SG Oliver stated that, when conducting a counseling session
with appellant, she exited his office at which time he departed with SFC Green. He stated that at
no time did either of them impede her movement or prevent her from exiting the room.
1SG Oliver noted that when appellant continued to the front door of Building 17, SFC Green
grabbed the top edge of the sheet of paper (letter of warning) at which point she pulled away
ripping the paper in half and departed the office. He stated that at no time did SFC Green
physically come close to her or make contact with her, but that he only touched the edge of the
paper that she was holding. 1SG Oliver indicated that appellant contacted the military police
who conducted an investigation and determined that nothing had happened. He indicated that

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the investigators failed to find any evidence of a crime and found it impossible that the events
she claimed to have happened ever occurred.
In a May 12, 2009 report, Dr. Curtis J. Black, appellant’s treating Board-certified family
practitioner, stated that she was assaulted by her supervisor and an assistant supervisor on
January 12, 2009. His history of injury was consistent with hers. Dr. Black noted that appellant
was having severe pain in her right wrist as a result of the assault and that she had a dramatic
worsening of her carpal tunnel syndrome since that day. He noted that she needed carpal tunnel
surgery on her right wrist and on an urgent basis due to the continual pain and numbness in her
right hand and wrist.
On June 19, 2009 the Office accepted appellant’s claim for sprain of shoulder, upper arm
and right acromioclavicular (AC) joint as well as a sprain of the lumbar region of the back.
In a July 21, 2009 note, Dr. Black stated that appellant had mild right carpal tunnel
syndrome from her chronic lifting and carrying as part of her regular work for the past several
years. He concluded that the incident at work has aggravated the right wrist to the point that
surgery is now necessary on the wrist and caused the damage of the left wrist to the point that
surgery is also necessary on this wrist. In an August 13, 2009 progress note, Dr. Black reported
that appellant had major injuries sustained as a result of an assault that occurred in her
workplace. He noted that she could not return to her former workplace or her previous job as a
supply technician. Dr. Black stated that appellant would be unable to work until she has found a
satisfactory clerical job. He noted that, as a result of her assault at work, she has had an acute
worsening of her previous mild carpal tunnel syndrome to the point that surgery was required on
the right wrist. Dr. Black further noted that appellant suffered a neck injury with moderate
constant pain in her arms and suffered a right shoulder injury, consistent with rotator cuff
damage which may require future surgery. He noted that she has low back pain with pain and
numbness down her right leg consistent with sciatica and has pain in her right hip. Dr. Black
also noted that appellant had pain in her right knee with crepitus on movement. He opined that
she was able to perform the duties of a clerical position only.
On August 28, 2009 appellant filed a claim for compensation for the period August 3
through October 26, 2009.
In an August 13, 2009 note, Dr. Black stated that appellant may not return to work for
14 days and noted that she needed a transfer to a clerical position. In an August 26, 2009 note,
he stated that she may not return to work until November 26, 2009 due to severe low back pain
with sciatica as she needed bed rest and medication.
On September 24, 2009 Dr. Black reported that appellant was not able to return to “even
a clerical position at this time.” He concluded that she was totally disabled as a result of an
assault in the workplace on January 12, 2009. Dr. Black explained that appellant had developed
rotator cuff tendinitis with constant severe pain and decreased range of motion of the right
shoulder to the point that she is unable to lift or carry anything heavier than five pounds. He
noted that she had a severe recurrence of her low back pain from the lower thoracic spine to the
lower lumbar area with resultant sciatica which does not allow her to stand and walk for more
than 10 minutes and she was currently unable to sit for longer than 10 minutes without lying

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down. Dr. Black again noted that appellant had a worsening of her carpal tunnel problem since
her surgical correction with continual numbness in all her fingers and weakness in her hand to
the point that she cannot grip utensils, pens or pencils. He concluded that she would be totally
disabled during the period August 3 through November 30, 2009 unless her pain decreases
earlier.
By decision dated November 16, 2009, the Office denied appellant’s claim for
compensation for the period August 3 through October 26, 2009.
By letter dated February 24, 2010, appellant requested reconsideration. In support of her
request, she submitted a progress note dated January 20, 2010 wherein Dr. Black indicated that
she may return to work on January 27, 2010 and noted that she may perform clerical work only
on a permanent basis. In a March 9, 2010 report, Dr. Black responded to questions sent to him
by the Office. He noted that appellant had onset of severe chronic post-traumatic stress disorder
as a direct result of the assault of January 12, 2009. Dr. Black noted that she is currently
disabled partially by the inability to sleep, the hypervigilance, the flashbacks, the panic disorder
and the moderate depression directly related to the events of January 12, 2009. He noted that
appellant has since returned to work and has had three spells of severe anxiety and panic when
the perpetrator entered her workplace area. Dr. Black noted that, during the last episode on
March 8, 2010, she had to leave work and come to his office at which time he noted that she had
elevated blood pressure and was complaining of headache and chest pain. He opined that
appellant will continue to have severe flare ups of her post-traumatic stress disorder for the
remainder of her life. Dr. Black also noted that she had cervical spondylosis, thoracic
spondylosis and lumbar spondylosis immediately after the assault on January 12, 2009. He
stated that appellant indicated that her neck was twisted due to the pushing by the
noncommissioned officer (NCO) involved while her upper and lower back were wrenched.
Dr. Black noted that, subsequent to the assault, she has had more intense constant neck, thoracic
spine and lumbar spine pain with markedly limited range of motion of the cervical, thoracic and
lumbar spine. He found a permanent restriction as a result of this injury.
With regard to appellant’s rotator cuff tendinitis, Dr. Black noted that she has had severe
right shoulder pain with inability to elevate or rotate her right upper arm as a direct result of the
injuries suffered during the assault. He indicated that appellant had an x-ray which showed
degenerative changes in the area of the AC joint and magnetic resonance imaging (MRI) scan
showed tendinisis of the supraspinatus muscle shortly after the injury. Dr. Black noted that she
has supraspinatus tendinitis as a direct result of the hyperextension of her shoulder from the
injury. He reported that the natural progression of disability from baseline as a result of her
underlying arthritis would have been gradually increasing pain in the right shoulder without loss
of range of motion of the shoulder and that the aggravation of the shoulder will be permanent.
With regard to appellant’s carpal tunnel syndrome Dr. Black stated that appellant had a
carpal tunnel syndrome for which she was treated by wearing a wrist splint prior to the assault.
He stated that, during the assault, appellant’s right wrist was slammed against a wall and she had
immediate severe pain and numbness in her right hand and inability to move her fingers.
Dr. Black noted that since the assault, her previous Grade 2 carpal tunnel impingement was now
significantly worse at Grade 3 and required wrist surgery as a direct result of the injury and not
due to the carpal tunnel problem which was getting better with the use of wrist splints. He noted

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that appellant would have had slow progression of her wrist problem over a period of 10 to 15
years but would have been unlikely to have needed surgery without the injury. Dr. Black noted
that the aggravation was permanent. With regard to appellant’s lumbar radiculopathy, he stated
that appellant had sudden onset of severe sciatic nerve pain down her right and left leg with
numbness in several toes of each foot as a direct result of the assault. Dr. Black pointed out that
she had been having problems with her low back and intermittent sciatica down her left leg for at
least three years since another job injury in 2006. However, he noted that, as a direct result of
the current injury, appellant had the occurrence of right sciatica which is persistent and severe
and that the MRI scan of the lumbar spine showed a large left sided disc herniation at L5-S1
which due to its size was causing continual pain down the right leg and intermittent pain down
the left leg. Dr. Black further noted that she had a sudden enlargement of a previously mild disc
bulge or herniation as a direct result of this trauma. He found that assuming that appellant had a
previous disc herniation which was causing her intermittent left leg pain in the natural
progression would have been increasing pain and numbness in the left leg but not the right leg.
Dr. Black noted that the aggravation of this lumbar radiculopathy is anticipated to be permanent.
By decision dated March 30, 2010, the Office denied appellant’s request to expand her
claim for aggravation of preexisting medical conditions.
By decision dated March 31, 2010, the Office denied modification of the November 16,
2009 decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 The term disability is defined as the incapacity because of an employment injury to earn
the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.5
Whether a particular injury caused an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.6 Causal relationship is a medical issue and
the medical evidence required to establish causal relationship is rationalized medical evidence.7
Rationalized medical evidence is medical evidence which includes a physician’s rationalized
medical opinion on the issue of whether there is a causal relationship between the claimant’s
3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature
identified by the claimant.8 Neither the fact that a disease or condition manifests itself during a
period of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.9
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim that she sustained a sprain of her shoulder, upper
arm and right AC joint as well as a sprain of the lumbar region of her back as a result of the
January 12, 2009 work incident. However, it denied her claim for compensation for the period
August 3 through October 26, 2009.
The Board finds that the case requires further development of the medical evidence.
Appellant’s physician, Dr. Black, opined that appellant sustained numerous disabling injuries as
a result of the accepted work-related assault. In an August 13, 2009 note, he opined that
appellant would be unable to work until she found a satisfactory clerical job. Dr. Black noted
that, as a result of the assault at work, she had a worsening of her carpal tunnel syndrome, a neck
injury, moderate constant pain in her arms and a right shoulder injury which was consistent with
rotator cuff damage. He also noted that appellant had low back pain and numbness down her
right leg consistent with sciatica and that she had pain in her right hip, as well a right knee
crepitus on movement. In an August 26, 2009 note, Dr. Black reported that she may not return to
work until November 26, 2009 due to low back pain with sciatica. In a September 24, 2009
report, he noted that appellant was totally disabled from August 3 through November 30, 2009,
noting a recurrence of low back pain and a worsening of her carpal tunnel syndrome. In his
March 9, 2010 report, Dr. Black noted that appellant was disabled due to the workplace assault,
noting issues with numerous nonwork-related conditions including anxiety, post-traumatic stress
disorder, carpal tunnel syndrome, spondylosis (cervical, thoracic and lumbar) as well as rotator
cuff tendinitis and right sciatica. Clearly, he opined that appellant was disabled from her regular
employment from August 3 through October 26, 2009. However, it is not clear that Dr. Black
believed that her disability was due to the accepted conditions of sprain of the shoulder, upper
arm and right AC joint or the sprain of the lumbar region of the back. Nevertheless, his opinion
is clear enough with regard to employment relationship and disability that it is sufficient to
require further development of the evidence. The Board finds that there is no medical opinion in
the record that contradicts Dr. Black’s finding that the January 12, 2009 work injury was the
cause of appellant’s disability. Accordingly, Dr. Black’s opinion was sufficient to raise an
undisputed inference of causal relationship sufficient to require further development by the
Office.10

8

Leslie C. Moore, 52 ECAB 132 (2000).

9

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

10

A.A., 59 ECAB 726 (2008).

6

Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence to see that justice is done.11 The Board
has reviewed the reports of Dr. Black and finds that although these reports are not sufficient to
establish that appellant was totally disabled due to the accepted work-related conditions, he
raises an uncontroverted inference of causal relationship sufficient to require further
development by the Office.12 Accordingly, the Board will remand the case to the Office for
further development of the medical evidence.
LEGAL PRECEDENT -- ISSUE 2
Under the Act, when employment factors cause an aggravation of an underlying physical
condition, the employee is entitled to compensation for the periods of disability related to the
aggravation.13 When the aggravation is temporary and leaves no permanent residuals,
compensation is not payable for periods after the aggravation ceased.14
ANALYSIS -- ISSUE 2
The Office denied appellant’s claim that the preexisting conditions of cervical, thoracic
and lumbar spondylosis, right shoulder cuff tendinitis, right carpal tunnel syndrome and lumbar
radiculopathy were aggravated as a result of her January 12, 2009 incident. The Board also finds
that this case is not in posture for decision with regard to this issue.
In support of her claim for aggravation of her preexisting conditions, appellant submitted
several reports by Dr. Black, her treating physician. In his March 9, 2010 report, Dr. Black
specifically addressed the aggravation of her preexisting conditions. With regard to appellant’s
cervical spondylosis, thoracic spondylosis and lumbar spondylosis, he noted that appellant was
found to have spondylosis of the cervical, thoracic and lumbar spine on x-rays immediately after
the assault on January 12, 2009. Dr. Black noted that she stated that her neck was twisted due to
the pushing by the NCO while her upper and lower back were wrenched. He noted that
subsequent to the assault appellant had more intense constant neck thoracic spine and lumbar
spine pain with marked limited range of motion of the cervical, thoracic and lumbar spine.
Dr. Black placed permanent restrictions on her due to these injuries. He stated that, had the
incident not occurred, appellant would have had a low increase in her neck pain, upper back pain
and low back pain over a period of 10 to 15 years as the natural course of progression from
baseline. With regard to appellant’s rotator cuff tendinitis, Dr. Black found that the sudden
severe right shoulder pain with inability to elevate or rotate her right upper arm were the direct
results of the injuries suffered during the assault. He noted that the natural progression of the
disability from baseline underlying arthritis would have been gradually increasing pain in the
right shoulder without loss of range of motion of the shoulder. Dr. Black noted that the
11

Phillip L. Barnes, 55 ECAB 426 (2004).

12

Id.

13

Raymond W. Behrens, 50 ECAB 221 (1999); James L. Hearn, 29 ECAB 278 (1978).

14

Id.

7

aggravation was permanent. With regard to appellant’s carpal tunnel syndrome, he noted that
she had chronic carpal tunnel problem on the right which was treated with a wrist splint prior to
her assault. Dr. Black stated that during the assault her wrist was slammed against a wall and she
had immediate severe pain and numbness in her right hand with inability to move her fingers.
He noted that appellant needed wrist surgery as a direct result of this injury and not due to the
carpal tunnel problem which was getting better with the use of wrists splints. Dr. Black noted
that without the assault, there would have been a slow progression of her wrist problems over a
period of 10 to 15 years but would have unlikely needed surgery. With regard to appellant’s
lumbar radiculopathy, he noted that, as a direct result of the assault, appellant had sudden onset
of severe sciatic nerve pain down her right and left leg with numbness in several toes of each
foot. Dr. Black noted that she had been having problems with her low back since 2006, but that
as a direct result of the injury, she had the occurrence of right sciatica which is persistent and
severe and that an MRI scan of the lumbar spine showed a large left-sided disc herniation at
L5-S1 which due to its size was causing continual pain down the right leg and intermittent pain
down the left leg. He noted a sudden enlargement of appellant’s previously mild disc bulge or
herniation as a direct result of the incident. Dr. Black stated that assuming the natural
progression would have been increasing pain and numbness in the left leg but not the right leg.
Dr. Black’s uncontradicted opinion is sufficient to require further development of the
evidence. The Office found that Dr. Black’s opinion was based on an incomplete and inaccurate
factual background. In making this determination, it stated that the Military Police report
supported that no assault took place. The Office appears to make this conclusion based on the
statement of 1SG Oliver. However, although 1SG Oliver indicated that the Military Police
conducted an investigation and determined that, nothing had happened, there is no copy of any
police report in the record. As this report is highly relevant to appellant’s claim, the actual report
should have been obtained; a brief notation by one of the involved parties as to what the report
stated is entitled to no weight. The Office also noted that SFC Garcia stated in a January 22,
2009 interview that he did not see anyone touching each other in the hallway. However, there is
no statement by SFC Garcia in the record; this statement is based on the report of the EEO
counselor and not based on a direct statement by SFC Garcia. Basically, the record contains two
conflicting versions of what occurred on January 12, 2009, i.e., the allegations by appellant that
she was assaulted and the statement by 1SC Oliver stating that she was never touched. Without
any further development of the factual evidence, the Office’s dismissal of Dr. Black’s report
based on an incomplete and inaccurate factual background was erroneous. The Board also notes
that Dr. Black’s report discussed appellant’s employment, noted her version of the events of
January 12, 2009 and discussed the impact that this incident had on her preexisting spondylosis,
right shoulder cuff tendinitis, right carpal tunnel syndrome and lumbar radiculopathy. Dr. Black
indicated what he anticipated the natural progression of these conditions would have involved
and how it was directly impacted by the January 12, 2009 work injury. This report was
sufficient to require the Office to further develop the medical record. The Board notes that there
is no medical record contradicting Dr. Black’s opinion that appellant sustained an aggravation of
these prior conditions as a result of the employment incident. Accordingly, the Board finds that
Dr. Black’s opinion is sufficient to require further development of the medical evidence by the
Office.15
15

A.A., supra note 10.

8

CONCLUSION
The Board finds that this case is not in posture for decision. On remand, the Office
should prepare a statement of accepted facts and refer appellant for a second opinion
examination to determine whether appellant was totally disabled due to the accepted workrelated conditions for the period August 3 to October 26, 2009. It should also instruct the second
opinion examiner to discuss whether appellant sustained any aggravation of her preexisting
cervical, thoracic and lumbar spondylosis, right shoulder rotator cuff tendinitis, carpal tunnel
syndrome and lumbar radiculopathy as a result of the January 12, 2009 employment incident.
After such further development as deemed necessary, it should issue a de novo decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 31 and 30, 2010 and November 16, 2009 are set aside and
the case is remanded for further proceedings consistent with this opinion of the Board.
Issued: April 1, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.K., Appellant
and
ARCHITECT OF THE CAPITOL,
Washington, DC, Employer
__________________________________________

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

Docket No. 08-973
Issued: September 2, 2008

Case Submitted on the Record

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

JURISDICTION
On February 19, 2008 appellant filed a timely appeal from a January 22, 2008 decision of
the Office of Workers’ Compensation Programs, denying his claim for leave buyback. 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 is entitled to leave buyback for the period February 10 to
March 11, 2005 due to his accepted right wrist tendinitis.
FACTUAL HISTORY
On January 21, 2004 appellant, then a 42-year-old custodial worker, filed a traumatic
injury claim alleging that he injured his right hand, wrist and arm while cleaning restrooms.

He was released to regular duty as of April 15, 2004. On May 25, 2004 the Office accepted
appellant’s claim for right wrist tendinitis, resolved.1
In a February 10, 2005 report, Dr. Dennis Faludi, an orthopedic surgeon specializing in
surgery of the hand and upper extremity, stated that appellant sustained right wrist tendinitis
again on February 4, 2005 while cleaning sinks. In a Form CA-7 (claim for compensation) dated
July 5, 2007, appellant filed a claim for leave buyback for disability between February 10 and
March 11, 2005 caused by his January 21, 2004 injury.2 The February 10, 2005 hourly pay rate
provided in the Form CA-7 was $15.84.
In a Form CA-7a (time analysis form) dated March 17, 2005, appellant claimed 79 hours
of leave buyback for February 10 to March 11, 2005 in section five of the form. However, in
section six he indicated 76 hours of leave after crossing out the number 79.3
On December 13, 2007 the Office advised appellant and the employing establishment
that he needed to submit a Form CA-7b (leave buyback worksheet). On December 18, 2007 the
employing establishment provided copies of appellant’s Form CA-7b dated July 5, 2007.
Appellant claimed 75 hours of leave between February 10 and March 11, 2005. However, the
form contains an incorrect date of injury, November 17, 2005 rather than January 21, 2004. The
hourly pay rate provided is $16.39 (his pay rate as of November 17, 2005).
On January 4, 2008 the Office advised appellant that the hours of leave claimed in the
March 17, 2005 Form CA-7a differed from the hours claimed in the July 5, 2007 Form CA-7b
for February 10 to March 11, 2005. It requested that he submit a Form CA-7b consistent with
the hours claimed in his Form CA-7a.
By decision dated January 22, 2008, the Office denied appellant’s claim for leave
buyback on the grounds that he failed to provide the documentation necessary to process his
claim.4
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, appellant has the burden of proving by
the preponderance of the reliable, probative and substantial evidence that he was disabled for
work as the result of an employment injury.5 Monetary compensation benefits are payable to an
1

Appellant has a separate claim accepted for tendinitis of the left wrist sustained on November 17, 2005 under
OWCP File No. 252061015.
2

The Form CA-7 was originally dated August 11, 2005. Appellant crossed out this date and wrote July 5, 2007.

3

For the March 10, 2005 leave entry, appellant entered both a numeral eight and a numeral seven. The numeral
seven was circled. However, the total hours of leave used between February 10 and March 11, 2005 total 76 hours
only if 8 hours is used for March 10, 2005.
4

Appellant submitted additional evidence subsequent to the Office decision of January 22, 2008. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
5

David H. Goss, 32 ECAB 24 (1980).

2

employee who has sustained wage loss due to disability for employment resulting from the
employment injury.6 Whether a particular employment injury causes disability for employment
and the duration of that disability are medical issues which must be proved by a preponderance
of reliable, probative and substantial medical evidence.7
In situations where compensation is claimed for periods where leave was used, the Office
has the authority to determine whether the employee was disabled during the period for which
compensation is claimed.8 The Office determines whether the medical evidence establishes that
an employee is disabled by an employment-related condition during the period claimed for leave
buyback, after which the employing establishment will determine whether it will allow the
employee to buy back the leave used.9
ANALYSIS
Appellant filed a claim for leave buyback, Form CA-7, for February 10 to March 11,
2005 for disability due to his accepted right wrist tendinitis.
In a Form CA-7b dated July 5, 2007, appellant claimed 75 hours of leave between
February 10 and March 11, 2005. However, the form contains an incorrect date of injury,
November 17, 2005 rather than January 21, 2004. Also, the hourly pay rate provided is $16.39
which differs from the hourly pay rate provided in appellant’s Form CA-7, $15.84. Additionally,
the hours claimed in Form CA-7b differ from the hours provided in Form CA-7a, 76 hours rather
than 75 hours.10 Due to these inconsistencies, the Board finds that appellant failed to provide
documentation sufficient to process his claim for leave buyback between February 10 and
March 11, 2005, due to the January 21, 2004 accepted injury. Accordingly, the Office properly
denied his claim for leave buyback.
CONCLUSION
The Board finds that appellant failed to establish that he was entitled to leave buyback for
February 10 to March 11, 2005 due to his accepted right wrist tendinitis of January 21, 2004.

6

Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

7

Edward H. Horten, 41 ECAB 301 (1989).

8

Laurie S. Swanson, 53 ECAB 517 (2002); see also 20 C.F.R. § 10.425, which provides: “The employee may
claim compensation for periods of annual and sick leave which are restorable in accordance with the rules of the
employing [establishment]. Forms CA-7a and CA-7b are used for this purpose.”
9

Laurie S. Swanson, supra note 8.

10

As noted, appellant’s Form CA-7a lists 76 hours in section 6 and 79 hours in section five.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 22, 2008 is affirmed.
Issued: September 2, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Elizabeth, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-187
Issued: October 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 3, 2010 appellant, through counsel, filed a timely appeal from an
August 18, 2010 decision of the Office of Workers’ Compensation Programs (OWCP)
concerning a schedule award. The Board also has jurisdiction over the nonmerit September 9,
2010 decision denying reconsideration. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits and
nonmerits of this case.
ISSUES
The issues are: (1) whether appellant has established that she is entitled to a greater than
two percent permanent impairment of the left upper extremity, for which she received a schedule
award; and (2) whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant’s counsel contends that appellant is entitled to a schedule award for
a greater impairment based on the medical evidence.
FACTUAL HISTORY
On June 27, 2005 appellant, then a 34-year-old letter carrier, filed a traumatic injury
claim alleging that on June 25, 2005 she injured her left shoulder, hand and wrist when a cluster
box fell on her. OWCP accepted the claim for left shoulder sprain and strain and authorized left
shoulder arthroscopic surgery, which occurred on December 13, 2005.
In a January 23, 2008 report, Dr. David Weiss, an examining osteopath, provided
physical findings and determined that appellant had a 16 percent left upper extremity impairment
using the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (5th ed. 2001). Using Tables 16-11, page 484 and 1615, page 492, he concluded that she had 4 percent impairment for a grade 4/5 left supraspinatus
motor strength deficit and 9 percent impairment for a grade 4/5 left deltoid motor strength
deficit, resulting in a combined left upper extremity impairment of 13 percent. Dr. Weiss found
that appellant also had three percent impairment for pain using Figure 18-1, page 574.
Combining these figures, he found a total 16 percent left upper extremity impairment.
Appellant filed a claim for a schedule award on June 21, 2008.
In a September 24, 2008 report, Dr. Morley Slutsky, an OWCP medical adviser, Boardcertified in preventive medicine, reviewed Dr. Weiss’ report and disagreed with the impairment
rating found. He found that appellant had three percent left upper extremity impairment based
on the abnormal left shoulder motion. The medical adviser determined that there was one
percent impairment for 170 degrees of flexion using Figure 16-40, page 475, a one percent
impairment for 160 degrees of abduction using Figure 16-43, page 477 and a one percent
impairment for 75 degrees of internal rotation using Figure 16-46, page 479, resulting in a total
left upper extremity impairment of three percent. Dr. Slutsky found that including a rating for
pain was duplicative and unwarranted.
On December 31, 2008 Dr. Weiss reviewed Dr. Slutsky’s report and agreed that the range
of motion method should have been used instead of muscle strength, which he had used. He
agreed with Dr. Slutsky’s calculation of three percent impairment due to loss of range of motion,
but disagreed with Dr. Slutsky’s opinion that pain should not be included in the impairment
rating. In concluding, Dr. Weiss determined that appellant had a total six percent left upper
extremity impairment as a result of loss of left shoulder motion and pain.
On February 9, 2009 Dr. Slutsky reviewed Dr. Weiss’ December 31, 2008 report and
reiterated his opinion that an impairment rating for pain was unwarranted as pain was addressed
in the range of motion impairment rating.
On June 4, 2009 OWCP found a conflict in the medical opinion evidence between
Drs. Weiss and Slutsky on the issue of appellant’s left upper extremity impairment and whether
pain should be included separately and referred her to Dr. Davd J. Greifinger, a Board-certified
orthopedic surgeon, for resolution of the conflict.

2

In an August 11, 2009 report, Dr. Greifinger, reviewed the medical records and statement
of accepted facts and performed a physical examination. Appellant reported posterior and
anterior symptoms, which radiated into the left trapezius and pain on range of motion, in cold
weather and lifting. A physical examination revealed excellent range of motion, which
Dr. Greifinger noted was not uncommon following labral repair surgery and a functional rotator
cuff. He concluded that appellant had no more than a three percent upper extremity impairment
using the fifth edition of the A.M.A., Guides. Dr. Greifinger concluded that an impairment
rating for pain was not warranted due to the inconsistencies on the extent of her pain noted by
Dr. Weiss in his report.
In a September 14, 2009 supplemental report, Dr. Greifinger found a three percent left
upper extremity impairment using the sixth edition of the A.M.A., Guides. Using Table 15-5,
page 404, he determined that class 1 and grade C was appropriate for labral tear, which resulted
in a three percent left upper extremity impairment. Dr. Greifinger noted May 31, 2006 as the
date of maximum medical improvement.
On January 5, 2010 OWCP received Dr. Greifinger’s permanent impairment worksheet
which set forth his impairment calculation. Using Table 15-5, page 404, he determined that a
left labral lesion was class 1 with a grade modifier of C resulting in three percent impairment.
On February 2, 2010 Dr. Greifinger provided a supplemental report setting forth his
impairment calculation with grade modifiers as requested by OWCP. Using grade modifiers, he
found grade modifier 1 for functional history using Table 16-7, page 406; a grade 1 modifier for
physical examination using Table 15-8, page 408; and a grade modifier 0 for clinical studies
using Table 15-9, page 410 as the labral lesion was surgically corrected. Dr. Greifinger noted
that, since the impairment class for appellant’s surgically corrected labral lesion was class 1, the
final net adjustment was grade B. Using Table15-5, page 404, a class B impairment equates to a
two percent left upper extremity impairment for labral lesions. Dr. Greifinger opined that he
thought “a more appropriate number still is three percent utilizing [g]rade C” even though he
acknowledged that using the quantification system set forth by the sixth edition of the A.M.A.,
Guides results in a lower impairment of two percent.
On February 22, 2010 Dr. Henry J. Magliato, an OWCP medical adviser and Boardcertified orthopedic surgeon, reviewed Dr. Greifinger’s report and concurred with the two
percent left upper extremity impairment rating. He determined August 11, 2009 as the date of
maximum medical improvement based on the date of Dr. Greifinger’s first report. In an
August 12, 2010 supplemental report, Dr. Magliato agreed with Dr. Greifinger’s determination
of May 31, 2006 as the date of maximum medical improvement.
By decision dated August 18, 2010, OWCP granted appellant a schedule award for a two
percent left upper extremity impairment.
In a letter dated August 23, 2010, appellant’s counsel requested reconsideration
requesting that the fifth edition of the A.M.A., Guides be used in calculating appellant’s
impairment rating.

3

By decision dated September 9, 2010, OWCP denied reconsideration of the merits on the
grounds that no new and relevant evidence or arguments were advanced by appellant.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.5
In addressing upper extremity impairments, the sixth edition identifies the impairment
class for the diagnosed condition (CDX), which is then adjusted by grade modifiers based on
Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).6 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
Section 8123(a) of FECA8 provides that, 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.9 When 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.10

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id.

5

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
6

A.M.A., Guides (6th ed. 2009) at 494-531, see J.B., Docket No. 09-2191 (issued May 14, 2010).

7

Id. at 521

8

5 U.S.C. §§ 8101-8193

9

Id. at § 8123(a); see J.J., Docket No. 09-27 (issued February 10, 2009); Geraldine Foster, 54 ECAB 435 (2003).

10

B.P., Docket No. 08-1457 (issued February 2, 2009); J.M., 58 ECAB 478 (2007); Barry Neutuch, 54 ECAB
313 (2003); David W. Pickett, 54 ECAB 272 (2002).

4

ANALYSIS -- ISSUE 1
OWCP accepted the claim for left shoulder sprain and strain and authorized left shoulder
arthroscopic surgery. Appellant received a schedule award for a two percent impairment of the
left upper extremity. The issue is whether she has established that she is entitled to a schedule
award for more than the two percent impairment of her left upper extremity.
Dr. Weiss, an examining osteopath, concluded that appellant had a six percent left upper
extremity impairment. Dr. Slutsky, an OWCP medical adviser, reviewed this report and found a
three percent left upper extremity impairment. Due to the difference of opinion between
Dr. Weiss and Dr. Slutsky, an OWCP medical adviser, regarding the extent of appellant’s
permanent impairment and whether pain should be separately considered, OWCP determined
that there was a conflict in medical opinion evidence and referred her to Dr. Greifinger, a Boardcertified orthopedic surgeon, selected as the impartial medical examiner.
Under the sixth edition of the A.M.A., Guides impairments of the upper extremities are
covered by Chapter 15. Section 15.2, entitled Diagnosis-Based Impairment (DBI), indicates that
DBI is the primary method of evaluation of the upper limb.11 The initial step in the evaluation
process is to identify the impairment class by using the corresponding diagnosis-based regional
grid. Dr. Greifinger noted that utilized Chapter 15 with the relevant section of the Shoulder
Regional Grid, Table 15-5, A.M.A., Guides 404. He identified a class 1 impairment based labral
lesions with residuals symptoms. Once the impairment class was determined based on the
diagnosis, the grade was initially assigned the default value, C. Under Table 15-5, the default
grade C, for a class 1 represents three percent upper extremity impairment.12
After determining the impairment class and default grade, Dr. Greifinger determined
whether there were any applicable grade adjustments for so-called nonkey factors or modifiers.
These include adjustments for GMFH, GMPE and GMCS. The grade modifiers are used in the
Net Adjustment Formula (NAF) to calculate a net adjustment. The final impairment grade is
determined by adjusting the grade up or down from the default value C by the calculated net
adjustment. Dr. Greifinger then found, a grade modifier of 1 for GMFH, a grade modifier of 1
for GMPE, a grade modifier of 0 for GMCS, a grade modifier of 1 for class of diagnosis regional
grid (CDX). The NAF for this case is (GMFH - CDX or 1 -1 = 0) + (GMPE - CDX or 1 -1 = 0)
+ (GMCS - CDX or 0 -1 = -1) which resulted in a minus one net adjustment (0 + 0 + -1 = -1).
The default value of three under grade C moved one to the left to a grade B or two percent
impairment. Dr. Greifinger also concluded that, due to the inconsistencies as the extent and
degree of appellant’s pain as reported by Dr. Weiss, a rating for pain was not warranted.
On February 22, 2010 Dr. Magliato, an OWCP medical adviser, reviewed
Dr. Greifinger’s reports and concurred with his use of the A.M.A., Guides and the impairment
rating.
11

Section 15.2, A.M.A., Guides 387.

12

The grades range from A to E, with A representing one (1) percent upper extremity impairment, B representing
two (2) percent impairment, C representing three (3) percent impairment, D representing four (4) percent
impairment and E representing five (5) percent impairment. Table 15-5, A.M.A., Guides 404.

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The Board finds that Dr. Greifinger’s opinion is entitled to special weight as his report is
sufficiently well rationalized and based upon a proper factual background and resolved the
conflict in medical opinion evidence. Dr. Greifinger examined appellant, reviewed his medical
records and reported accurate medical and employment histories. Although he noted, without
explanation, that three percent impairment of the left upper extremity was preferable, he
acknowledged that there was no basis in the A.M.A., Guides on which to attribute any greater
impairment. OWCP properly relied upon Dr. Greifinger’s report. Dr. Magliato, an OWCP
medical adviser, agreed with Dr. Greifinger’s assessment of two percent based on the application
of the A.M.A., Guides.13 There is no probative medical evidence of record establishing that
appellant has more than two percent impairment of the left upper extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,14
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.15 To be entitled to a merit review of an OWCP 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 standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.17
ANALYSIS -- ISSUE 2
In her August 23, 2010 request for reconsideration, appellant’s counsel did not show that
OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by OWCP. Appellant did not submit any pertinent new and
relevant evidence with her request for reconsideration. The issue to be resolved is a medical one
and she did not submit any medical evidence with her request. Consequently, appellant is not
entitled to a review of the merits of her claim based on the above-noted requirements under
section 10.606(b)(2).
13

See generally, E.B., Docket No. 09-1321 (issued April 1, 2010).

14

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
15

20 C.F.R. § 10.606(b)(2). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
16

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

17

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

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The Board finds that OWCP properly determined that appellant was not entitled to
further consideration of the merits of her claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(2) and thus OWCP properly denied her August 23, 2010 request for
reconsideration.
CONCLUSION
The Board finds that appellant has two percent left upper extremity impairment for which
she received a schedule award. The Board further finds that OWCP properly refused to reopen
her case for further merit review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 9 and August 18, 2010 are affirmed.
Issued: October 12, 2011
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
S.S., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT AGENCY, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 20-1352
Issued: March 31, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 22, 2020 appellant filed a timely appeal from an April 14, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish ratable hearing loss
for schedule award purposes.
FACTUAL HISTORY
On August 6, 2019 appellant, then a 56-year-old special agent, filed an occupational
disease claim alleging that he had developed hearing loss due to noise exposure as a result of his
federal employment. He asserted that special agents are always exposed to hearing loss due to the
nature of the job. Appellant noted that he first became aware of his hearing loss and its relationship
to his federal employment on October 18, 2018. He retired from the employing establishment on
November 20, 2018.
In a September 23, 2019 development letter, OWCP advised appellant of the deficiencies
of his claim. It requested additional factual and medical evidence from appellant, and provided a
questionnaire for his completion. By separate development letter of even date, OWCP requested
that the employing establishment provide comments from a knowledgeable supervisor regarding
appellant’s exposure to noise. It afforded both parties 30 days to respond.
OWCP received the results from audiograms performed by the employing establishment
as part of a hearing conservation program dated July 30, 2003 through September 21, 2018.
On October 19, 2019 appellant completed the hearing loss development questionnaire and
listed his noise exposures including driving a government car, shooting various firearms, and
exposure to noise on airport tarmacs and to airplanes during takeoff. On November 25, 2019
OWCP referred appellant, a statement of accepted facts (SOAF), and his medical records to
Dr. Jennifer H. MacEwan, a Board-certified otolaryngologist, for a second opinion evaluation.
In an otologic evaluation form report dated December 18, 2019, Dr. MacEwan noted that
she had performed a physical examination and reviewed appellant’s medical records and SOAF,
and indicated that there was no significant variation in the SOAF. She reviewed an audiogram
conducted by an audiologist on the same date, which she found demonstrated losses of 10, 5, 10,
and 15 decibels (dBs) on the right and 10, 10, 5, and 25 dBs on the left at 500, 1,000, 2,000, and
3,000 hertz (Hz), respectively. Utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 Dr. MacEwan calculated
appellant’s total monaural hearing loss for his right ear by adding his right ear dB losses to a total
of 40 and then dividing by 4 to obtain the average hearing loss of 10 dBs. This average loss was
then reduced by 25 dBs to equal -15, which was multiplied by the established factor of 1.5 to
compute a -22.5 percent monaural hearing loss in the right ear. Dr. MacEwan calculated
appellant’s total monaural hearing loss for his left ear by adding his left ear dB losses to a total of
50 and then dividing by 4 to obtain the average hearing loss of 12.5 dBs. This average loss was
then reduced by 25 dBs to equal -12.5, which was multiplied by the established factor of 1.5 to
compute a -18.75 percent monaural hearing loss in the left ear. She further noted that appellant
had one percent permanent impairment due to tinnitus as a result of his work-related noise
3

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

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exposure. Dr. MacEwan diagnosed binaural sensorineural hearing loss and tinnitus. She opined
that appellant’s sensorineural hearing loss and tinnitus was due to his noise exposure encountered
in his federal employment.
By decision dated December 27, 2019, OWCP accepted appellant’s claim for bilateral
tinnitus and bilateral sensorineural hearing loss.
On January 17, 2020 appellant filed a schedule award claim (Form CA-7).
On January 31, 2020 OWCP referred appellant’s medical records and SOAF to
Dr. Jeffrey M. Israel, a Board-certified otolaryngologist serving as a district medical adviser
(DMA), for calculation of appellant’s percentage of permanent hearing impairment and
assignment of the date of maximum medical improvement (MMI).
In a February 3, 2020 report, Dr. Israel indicated that he reviewed appellant’s SOAF and
medical records, including Dr. MacEwan’s December 18, 2019 report. He determined that
appellant had reached MMI on December 18, 2019, the date of the most recent audiogram which
was used by Dr. MacEwan to calculate his hearing impairment. Dr. Israel reviewed appellant’s
December 18, 2019 audiogram and found zero percent monaural hearing loss in the right ear and
zero percent monaural hearing loss in the left ear. He indicated that he agreed with Dr. MacEwan’s
calculations of appellant’s monaural hearing loss in both ears. Dr. Israel further found that
appellant was not entitled to a schedule award for tinnitus as there was no ratable hearing
impairment.
By decision dated April 14, 2020, OWCP denied appellant’s schedule award claim, finding
that his hearing loss was not sufficiently severe to demonstrate ratable impairment, and he was,
therefore, not entitled to schedule award compensation.
LEGAL PRECEDENT
The schedule award provisions of FECA4 and its implementing regulations5 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 A.M.A., Guides as
the uniform standard applicable to all claimants.6 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.7

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).

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A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim.8 With respect to a schedule award, it is the claimant’s burden
of proof to establish permanent impairment of a scheduled member or function of the body as a
result of his or her employment injury.9 The medical evidence must include a detailed description
of the permanent impairment.10
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.11 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, 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.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss for schedule award purposes.
In a December 18, 2019 report, second opinion physician, Dr. MacEwan, noted binaural
sensorineural hearing loss with tinnitus due to noise exposure encountered in appellant’s federal
employment. An audiogram she obtained at the frequency levels of 500, 1,000, 2,000, and 3,000
Hz, respectively revealed dB losses in the right ear of 10, 5, 10, and 15 dBs respectively, and of
10, 10, 5, and 25 dBs for the left ear, respectively.
OWCP’s DMA, Dr. Israel, on February 3, 2020, reviewed Dr. MacEwan’s report and
audiometric findings, properly applied OWCP’s standardized procedures, and concurred with
Dr. MacEwan in finding that appellant had no monaural or binaural hearing loss. He totaled the
dB losses to equal 50 on the left and 40 on the right. These values, when divided by four, resulted
in average hearing loss of 12.5 on the left and 10 on the right, which when reduced by the 25 dBs
fence, resulted in zero percent loss.

8

B.B., Docket No. 19-1491 (issued February 3, 2020); John W. Montoya, 54 ECAB 306 (2003).

9
R.R., Docket No. 19-0750 (issued November 15, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L.
Meehan, 53 ECAB 229 (2001).
10

B.B., supra note 8; Vanessa Young, 55 ECAB 575 (2004).

11

A.M.A., Guides 250.

12

J.E., Docket No. 19-1325 (issued December 13, 2019); E.C., Docket No. 19-1007 (issued November 8, 2019).

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Although appellant has an employment-related hearing loss, it is not significant enough to
be ratable for schedule award purposes.13 The Board finds, therefore, that, as the December 18,
2019 audiogram did not demonstrate that appellant’s hearing loss was ratable, he is not entitled to
a schedule award for his accepted hearing loss condition. Both the DMA and Dr. MacEwan found
appellant had no ratable impairment for hearing loss.
While Dr. MacEwan found that appellant had one percent permanent impairment due to
tinnitus, the Board has held, that in the absence of ratable hearing loss, a schedule award for tinnitus
is not allowable pursuant to the A.M.A., Guides.14 Accordingly, as appellant does not have ratable
hearing loss, the Board finds that he is not entitled to a schedule award for tinnitus. There is no
other evidence of record establishing a ratable hearing loss.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an 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 ratable hearing
loss for schedule award purposes.

13

A.M., Docket No. 20-1041 (issued December 7, 2020); K.P., Docket No. 20-0349 (issued July 1, 2020);
Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).
14
C.D., Docket No. 20-0790 (issued November 13, 2020); W.T., Docket No. 17-1723 (issued March 20, 2018);
E.D., Docket No. 11-0174 (issued July 26, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the April 14, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 31, 2021
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, BARTOW POST
OFFICE, Bartow, FL, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0714
Issued: May 17, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On April 9, 2021 appellant, through counsel, filed an appeal from a purported adverse
January 17, 2020 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards assigned Docket No. 21-0714.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.2
This jurisdiction encompasses any final decision issued by OWCP within 180 days of the date
appellant filed her appeal.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

3
Id. at § 501.3(e), which provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”

The Board notes that the January 17, 2020 correspondence notified appellant that it had
accepted her claim for unspecified sprain of the right hip, initial encounter. As there is no final
adverse decision issued by OWCP dated January 17, 2020 over which the Board may properly
exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-0714 must be
dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0714 is dismissed.
Issued: May 17, 2021
Washington, DC

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

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

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

2