United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Palos Verdes, CA, Employer
__________________________________________

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

Docket No. 18-1591
Issued: May 8, 2019

Case Submitted on the Record

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

JURISDICTION
On August 16, 2018 appellant filed a timely appeal from April 30 and July 11, 2018 merit
decisions 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that her
claim should be expanded to include cervical spinal stenosis, cervical myelopathy, cervical disc
displacement, and intervertebral disc stenosis of the cervical neural canal causally related to her
March 1, 2014 employment injury; and (2) whether she has met her burden of proof to establish
1

The Board notes that following the July 11, 2018 decision, OWCP received additional evidence. 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.

disability from work beginning August 18, 2016 causally related to her March 1, 2014
employment injury.
FACTUAL HISTORY
On July 16, 2014 appellant, then a 33-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that she experienced pain in her neck and right shoulder
causally related to factors of her federal employment. The employing establishment indicated that
she was last exposed to the conditions alleged to have caused her condition on July 16, 2014 and
was currently performing modified-duty work.
OWCP accepted the claim for impingement syndrome of the right shoulder. Appellant
stopped work on August 25, 2015 and returned to full-time employment on January 9, 2016. She
stopped work again on May 25, 2016 and returned to part-time employment on June 20, 2016.
OWCP paid appellant intermittent wage-loss compensation for time lost from work due to
disability and medical appointments. Appellant stopped work on August 18, 2016 and has not
returned.
In progress reports dated 2015, Dr. Basimah Khulusi, a Board-certified physiatrist, opined
that appellant had sustained a right shoulder and neck condition on March 1, 2014. She diagnosed
other conditions of the right shoulder region, cervical intervertebral disc syndrome with
myelopathy, cervical degenerative disc disease, and cervical disc herniations.
In a report dated June 11, 2015, Dr. Edward Mittleman, who specializes in family
medicine, requested that OWCP expand appellant’s claim to include cervical disc protrusions and
desiccation.
OWCP, on October 22, 2015, referred appellant to Dr. Joseph S. Klemek, a Board-certified
orthopedic surgeon, for a second opinion examination. It requested that he address her current
condition and disability and whether her claim should be expanded to include cervical
intervertebral disc syndrome with myelopathy, cervical degenerative disc disease, and cervical
disc herniations.
Appellant filed claims for compensation (Form CA-7) requesting wage-loss compensation
for intermittent time lost from work from October 2015 to January 2016.
In a November 11, 2015 report, Dr. Klemek diagnosed early degenerative disc disease
without right cervical radiculopathy and mild impingement syndrome or the right shoulder. He
opined that her degenerative disc disease was unrelated to employment. Dr. Klemek advised that
a magnetic resonance imaging (MRI) study dated January 20, 2015 had revealed widespread mild
degenerative disc disease without evidence of myelopathy and opined that the findings were
“underlying and preexisting, age[-]related changes.” He found that appellant had continued
residuals of her shoulder injury and could work with limitations of lifting no more than 20 pounds
for four hours per day and pushing and pulling up to 30 pounds for no more than four hours per
day.
On November 19, 2015 Dr. Khulusi advised that appellant’s neck condition had worsened
such that she was unable to work from September 19 through October 16, 2015. She indicated
that she was going to be deployed by the military to Japan, and removed appellant’s work
2

restrictions so that she could do desk work in Japan as part of her military service. Upon
appellant’s return from deployment, Dr. Khulusi had “lifted the restrictions that she had at the
[employing establishment]. She went back to doing her regular activities on the job….”
Dr. Khulusi opined that appellant’s employment activities resulted in an aggravation of her neck
and shoulder symptoms. She requested that OWCP expand appellant’s claim to include cervical
disc protrusions as employment related.
In a duty status report (Form CA-17) dated August 18, 2016, Dr. Mittleman found that
appellant was temporarily totally disabled from employment.
On August 24, 2016 appellant filed a Form CA-7 requesting wage-loss compensation for
intermittent disability for the period August 6 to 19, 2016. In a time analysis form (Form CA-7a)
the employing establishment related that she had claimed compensation for time lost for medical
therapy on August 16 and 17, 2016. In a September 6, 2016 Form CA-7, the employing
establishment indicated that appellant had stopped work on August 18, 2016.
In a development letter dated September 6, 2016, OWCP informed appellant that the
evidence was currently insufficient to establish that she was disabled due to her employment
injury. It noted that she stopped work on August 18, 2016 and had not returned. OWCP advised
appellant of the type of medical evidence needed to establish her claim for wage-loss
compensation, including a reasoned report from her attending physician addressing whether she
was unable to perform her employment beginning August 18, 2016. It afforded her 30 days to
submit the necessary evidence.
Thereafter, OWCP received an August 18, 2016 report from Dr. Mittleman. Dr. Mittleman
obtained a history of appellant waking up with severe pain in her right shoulder. He diagnosed
other affections of the right shoulder, cervical intervertebral disc disease with myelopathy, cervical
degenerative disc disease, cervical disc herniations, and possible shoulder-hand syndrome.
Dr. Mittleman found that appellant could perform modified employment with limited use of the
right upper extremity. He noted that she continually used her right upper extremity working as a
distribution clerk.
In a report dated August 22, 2016, Dr. Khulusi discussed appellant’s history of a March 1,
2014 right shoulder injury with increased pain on August 18, 2016. She related that she had
undergone aqua therapy on August 17, 2016. Dr. Khulusi diagnosed other affections of the right
shoulder, cervical intervertebral disc disease with myelopathy, cervical degenerative disc disease,
cervical disc herniations, and possible shoulder-hand syndrome. She opined that appellant was
disabled from employment.3 Dr. Khulusi submitted similar progress reports on August 30 and
September 27, 2016.
OWCP found that a conflict existed between appellant’s attending physicians Drs. Khulusi
and Mittleman and Dr. Klemek regarding whether appellant’s claim should be expanded to include
additional cervical conditions.

3

In August 22 and 30, 2016 CA-17 forms, Dr. Khulusi indicated that appellant was disabled from employment.

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By decision dated October 7, 2016, OWCP denied appellant’s claim for wage-loss
compensation beginning August 18, 2016. It found that she had not submitted sufficient medical
evidence to establish that she was unable to perform her employment duties for the claimed period.
Thereafter, appellant submitted a September 29, 2016 progress report from Dr. Mittleman,
who found that she could resume modified employment on October 3, 2016 with restrictions. On
November 7, 2016 he noted that she had been working full time with restrictions of lifting no more
than 15 pounds, pushing or pulling more than 30 pounds on wheels, performing more than two
hours of fine manipulation, or reaching above the right shoulder.4
On November 18, 2016 appellant requested reconsideration.
OWCP, on January 10, 2017, referred appellant to Dr. James Fait, a Board-certified
orthopedic surgeon, for an impartial medical examination.
By decision dated February 16, 2017, OWCP denied modification of its October 7, 2016
decision. It found that the medical evidence from Dr. Khulusi failed to establish that appellant
was disabled due to her accepted employment injury. OWCP indicated that it had referred her to
a second opinion examiner and impartial medical examiner (IME) regarding the issue of whether
the claim should be expanded to include a cervical condition.
OWCP subsequently received a report dated February 1, 2017, wherein Dr. Fait noted that
it had requested that he resolve a conflict regarding whether appellant’s claim should be expanded
to include cervical conditions and whether residuals of her shoulder injury would prevent her from
performing her usual employment. Dr. Fait discussed appellant’s history of injury and current
complaints of neck pain radiating into her right shoulder, radiating right shoulder pain, and upper
extremity weakness. On examination he found tenderness to palpation with paraspinal spasm on
the right extending into the trapezius. Dr. Fait measured full manual motor strength of the upper
extremities with reduced sensation in the hands bilaterally, trace crepitance with motion of the
right shoulder, and pain on the right with impingement testing. He further found a positive Tinel’s
sign bilaterally. Dr. Fait provided the diagnoses as a strain/sprain of the cervical spine with
degenerative disc disease at C3-4 and C5-6, a broad-based central posterior disc herniation at C56, probable C5 right radiculopathy based on objective testing, but without examination evidence
of right C6 radiculopathy, and right shoulder subacromial bursitis, biceps tenosynovitis, and AC
joint arthropathy with a history of adhesive capsulitis. He discussed appellant’s description of her
employment duties, noting that he had not received an official position description. Based on his
physical examination and review of diagnostic studies, Dr. Fait found the diagnoses of cervical
degenerative disc disease, right shoulder subacromial bursitis with AC joint osteoarthritis, and
bicipital tenosynovitis had been established. He attributed the right shoulder subacromial bursitis,
bicipital tendinitis, and aggravation of AC joint osteoarthritis to the accepted employment injury.
Dr. Fait found that appellant’s cervical degenerative disc disease was unrelated to the employment
injury. He opined that, “Based upon [her] self-reported job duties, I do not find evidence of
repetitive neck motions, repetitive awkward positioning, or repetitive overhead work.” Dr. Fait
indicated instead that appellant performed a “highly-varied group of job assignments that do not
involve repetitive or continuous movements. Rather, there is frequent changing of movements and
4
In a January 9, 2017 report, Dr. Khulusi noted that appellant had recently undergone a left carpal tunnel release.
She found that she could otherwise continue with her same work restrictions.

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positions and limited overhead work, reaching, gripping, or grasping above shoulder level.”
Dr. Fait opined that the aggravation of appellant’s right shoulder condition was temporary, but that
she had not yet received sufficient treatment. He recommended a subacromial decompression with
excision of the distal clavicle of the right shoulder. Dr. Fait found that appellant was currently
partially disabled and could work within the restrictions provided by Dr. Klemek of no lifting over
20 pounds, pushing or pulling over 30 pounds, and no overhead reaching on the right side.
By decision dated June 27, 2017, OWCP denied expansion of appellant’s claim to include
a cervical condition. It determined that Dr. Fait’s opinion represented the special weight of the
evidence and established that her degenerative disc disease of the cervical spine was unrelated to
her employment injury.5
By decision dated February 12, 2018, OWCP denied appellant’s claim for wage-loss
compensation for the period “October [16 to 19,] 2015,” December 12 to 25, 2015, and
December 26 to January 4, 2016. It found that Dr. Fait’s opinion constituted the special weight of
the evidence and established that she was partially rather than totally disabled during these periods.
On February 15, 2018 appellant requested reconsideration. In support of her request she
submitted a February 12, 2018 report from Dr. Khulusi. Dr. Khulusi related that she had reviewed
OWCP’s finding that she had failed to explain how appellant’s condition had worsened
objectively. She advised that a comparison of MRI scan studies dated May 12, 2014 and July 18,
2016 revealed the development of supraspinatus tendinopathy. Dr. Khulusi opined that the
accepted right shoulder impingement syndrome had caused the supraspinatus tendinopathy and
increased symptoms. She related, “That explains the worsening of [appellant’s] shoulder condition
and symptoms that required minimizing the use of her right upper extremity by keeping her off of
work for a while, then by giving her more restrictions on the job until her condition got under
better control.”
By decision dated April 30, 2018, OWCP denied modification of its February 16, 2017
decision. It found that Dr. Khulusi’s February 12, 2018 report was insufficient to establish that
appellant was disabled from employment beginning August 18, 2016.
In a report dated June 14, 2018, Dr. Khulusi indicated her opinion that Dr. Fait had relied
upon an inaccurate work history in finding that appellant’s cervical condition was unrelated to her
employment. She related, “Dr. Fait’s report is not thorough because he did get a detailed
description of [her] activities on the job….” Dr. Khulusi discussed appellant’s specific
employment duties and opined that the duties required continual repetitive neck movements,
including while in awkward positions and while lifting and throwing heavy weight and working
overhead. She also advised that Dr. Fait had failed to consider that activities requiring force could
cause neck disorders and did not have her March 10, 2016 report for review. Dr. Khulusi again
requested expansion of appellant’s claim to include cervical intervertebral disc syndrome, a
cervical disc herniation, and cervical spinal stenosis.

5
In a July 20, 2017 progress report, Dr. Khulusi noted that Dr. Fait had provided work restrictions similar to those
she had provided, noting that “with these restrictions [appellant] had been working eight hours.” The employing
establishment, on August 11, 2017, advised that appellant was currently working with restrictions provided by her
attending physician. It requested updated medical evidence.

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Appellant, on June 26, 2018, requested reconsideration of the June 27, 2017 decision.
By decision dated July 11, 2018, OWCP denied modification of its June 27, 2017 decision.
It found that Dr. Fait based his opinion on a statement of accepted facts, the medical records, and
an examination, and that his report constituted the special weight of the evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
Where an employee claims that a condition not accepted or approved by OWCP was due to an
employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.9 To establish 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 based on a complete factual and medical
background, supporting such a causal relationship.10 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.11
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.
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.”12 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

See T.F., Docket No. 17-0645 (issued August 15, 2018).

10

See S.A., Docket No. 18-0399 (issued October 16, 2018).

11

See P.M., Docket No. 18-0287 (issued October 11, 2018).

12

5 U.S.C. § 8123(a).

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such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that her claim
should be expanded to include cervical spinal stenosis, cervical myelopathy, cervical disc
displacement, and intervertebral disc stenosis of the cervical neural canal causally related to her
March 1, 2014 employment injury.
OWCP properly determined that a conflict in medical opinion arose between appellant’s
attending physicians, Dr. Khulusi and Dr. Mittleman, and OWCP’s second opinion physician,
Dr. Klemek, regarding causal relationship between her cervical condition and the March 1, 2014
employment injury. It referred her to Dr. Fait, a Board-certified orthopedic surgeon, for an
impartial medical examination.
When a case is referred to an IME for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.14
On February 1, 2017 Dr. Fait reviewed appellant’s history of injury and noted that she had
complained of upper extremity weakness and neck pain radiating into her right upper extremity.
On examination, he found paraspinal spasms into the right trapezius, reduced sensation in the
hands bilaterally, pain on the right with impingement testing, and a positive Tinel’s sign bilaterally.
Dr. Fait diagnosed a cervical spine strain/sprain with degenerative disc disease at C3-4 and C5-6,
a broad-based central posterior disc herniation at C5-6, probably C5 right radiculopathy based on
objective testing, but without examination evidence of right C6 radiculopathy, and right shoulder
subacromial bursitis, biceps tenosynovitis, and AC joint arthropathy with a history of adhesive
capsulitis. He opined that appellant had sustained subacromial bursitis and bicipital tendinitis of
the right shoulder and an aggravation of AC joint osteoarthritis due to her employment injury.
Dr. Fait found, however, that her existing cervical degenerative disc disease was unrelated to her
employment, providing as a rationale that she performed a variety of work tasks rather than
repetitive or continued neck or overhead motions.
The Board finds that Dr. Fait’s opinion is well rationalized and based on a proper factual
and medical history and thus entitled to special weight.15 Dr. Fait accurately summarized the
relevant medical evidence, provided detailed findings on examination, and reached his conclusion
about appellant’s left shoulder condition which comported with his findings.16
In a report dated July 14, 2018, Dr. Khulusi opined that Dr. Fait’s report was not thorough
as he had relied upon an incomplete description of appellant’s employment duties in finding that
13

V.K., Docket No. 18-1005 (issued February 1, 2019).

14

Id.

15

Id.

16

J.L., Docket No. 18-0990 (issued March 5, 2019).

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her cervical condition was not employment related. She related that her work duties required
continuous repetitive motion, including repetitive overhead work and working in awkward
positions. Dr. Khulusi also indicated that Dr. Fait had failed to consider that activities requiring
the use of force could cause cervical conditions. She, however, was on one side of the conflict
resolved by Dr. Fait. The Board has held that reports from a physician who was on one side of a
medical conflict are generally insufficient to overcome the special weight accorded to the IME, or
to create a new conflict.17
For the reasons set forth above, the Board finds that Dr. Fait’s opinion was entitled to the
special weight accorded an IME and establishes that appellant did not sustain an employmentrelated cervical condition.18
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
An employee 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.19 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled for work as
a result of the accepted employment injury.20 Whether a particular injury causes an employee to
become disabled for work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.21
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.22 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.23 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.24 When, however, the medical evidence establishes that the residuals or sequelae of an

17

C.L., Docket No. 18-1379 (issued February 5, 2019).

18

Supra note 13.

19

See T.A., Docket No. 18-0431 (issued November 7, 2018).

20

M.C., Docket No. 18-0919 (issued October 18, 2018).

21

See K.C., Docket No. 17-1612 (issued October 16, 2018).

22

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

23

See L.W., Docket No. 17-1685 (issued October 9, 2018).

24

See D.G., Docket No. 18-0597 (issued October 3, 2018).

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employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.25
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility to see that justice is done.26 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.27
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision regarding whether appellant has
met her burden of proof to establish disability from work beginning August 18, 2016 causally
related to her March 1, 2014 employment injury.
OWCP found that the medical evidence from Dr. Khulusi was insufficient to support that
appellant was disabled from employment during the claimed period. It did not, however, discuss
the reports of its referral physicians Dr. Klemek and Dr. Fait, in reaching its determination relative
to ongoing disability.
In a report dated November 11, 2015, Dr. Klemek diagnosed mild right shoulder
impingement syndrome and early cervical disc degeneration. He found that appellant had
continued residuals of her accepted shoulder injury and prescribed physical work limitations of
lifting no more than 20 pounds and pushing and pulling no more than 30 pounds for four hours per
day.
On February 1, 2017 Dr. Fait diagnosed as employment-related right shoulder subacromial
bursitis, bicipital tendinitis, and an aggravation of AC joint osteoarthritis. He opined that appellant
was partially disabled and could work in accordance with the restrictions set forth by Dr. Klemek.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
Once OWCP undertakes to further develop the medical evidence, it must do a complete job in
procuring medical evidence that will resolve the relevant issues.28 It denied appellant’s claim for
wage-loss compensation without verifying that the employing establishment had provided her with
limited-duty employment for the period in question within the restrictions set forth by its referral
physicians. The Board will therefore remand the case to OWCP for appropriate development of
the evidence to determine whether modified employment was available within her restrictions at
the employing establishment for the claimed period.29 After such further development as deemed
necessary, OWCP shall issue a de novo decision.

25

See D.R., Docket No. 18-0232 (issued October 2, 2018).

26

A.D., Docket No. 17-1984 (issued March 19, 2018).

27

20 C.F.R. § 10.121.

28

J.W., Docket No. 17-0715 (issued May 29, 2018).

29

T.L., Docket No. 17-1391 (issued July 3, 2018); M.M., Docket No. 14-0581 (issued September 8, 2014).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her claim
should be expanded to include cervical spinal stenosis, cervical myelopathy, cervical disc
displacement, and intervertebral disc stenosis of the cervical neural canal causally related to her
March 1, 2014 employment injury. The Board further finds that the case is not in posture for
decision regarding whether appellant has met her burden of proof to establish her disability from
work beginning August 18, 2016 causally related to her March 1, 2014 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the July 11, 2018 decision of the Office of Workers’
Compensation Programs is affirmed. The April 30, 2018 decision of OWCP is set aside and the
case is remanded for further proceedings consistent with this opinion of the Board.
Issued: May 8, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Tuskegee, AL, Employer
__________________________________________

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

Docket No. 09-1395
Issued: January 20, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 6, 2009 appellant filed a timely appeal of an April 7, 2009 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(e), 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 on August 12, 2008.
FACTUAL HISTORY
On August 13, 2008 appellant, then a 56-year-old housekeeper leader, filed a traumatic
injury claim alleging that on August 12, 2008 he injured his back assisting a worker handling
supplies. Appellant did not stop work.
On August 29, 2008 the Office advised appellant of the evidence necessary to establish
his claim and allowed him 30 days to submit such evidence. It requested a physician’s report

with an opinion on how the reported work incident caused or aggravated the claimed back injury.
He did not respond.
In an October 3, 2008 decision, the Office denied appellant’s claim finding the evidence
insufficient to establish that the event occurred as alleged. It found that there was no medical
evidence providing any diagnosis connected to the claimed event.
Appellant submitted a nurse’s note dated August 12, 2008, which listed appellant’s
complaint of low back pain. The nurse indicated that appellant had a military injury on his right
side. Appellant reported pushing a box when he injured his back on the right side. The nurse
diagnosed chronic low back pain and possible pulled muscle.
On October 10, 2008 appellant, through his representative, requested a telephonic
hearing, which was held on February 4, 2009.
In a January 30, 2009 report, Dr. Audrey Hodge, Board-certified in family medicine,
noted appellant’s complaint of knee pain, which had existed for several years. She also noted
that appellant had a previous history of low back pain. Appellant also complained of skin
blotches on his feet and decreased vision. Her findings included bilateral knee pain,
osteoarthritis, decreased vision, obesity, muscle spasm and post-traumatic stress disorder.
In an April 7, 2009 decision, an Office hearing representative affirmed the October 3,
2008 decision. She found that, although appellant established the incident occurred as alleged,
the medical evidence did not establish that the work incident caused a personal injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; 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 and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
1

5 U.S.C. §§ 8101-8193.

2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

Id.

2

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence, which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.4
ANALYSIS
The record supports that on August 12, 2008 appellant assisted a worker handling
supplies while in the performance of duty. However, the medical evidence does not establish
that assisting the worker caused or aggravated appellant’s alleged back condition.
A January 30, 2009 report from Dr. Hodge noted appellant’s complaint of knee pain, skin
blotches on his feet and decreased vision. She also noted a prior history of low back pain. After
Dr. Hodge examined appellant, she diagnosed bilateral knee pain, osteoarthritis, decreased
vision, obesity, muscle spasm and post-traumatic stress disorder. However, she did not address
the issue of causal relationship or discuss whether the August 12, 2008 work incident caused or
contributed to a diagnosed back condition. The Board has held that medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.5 Appellant did not submit any other evidence from a
physician, which addressed causal relationship between assisting a worker handle supplies at
work and a back injury or condition. As noted, causal relationship is a medical issue. To meet
his burden of proof, appellant must submit medical evidence from a physician addressing how
the August 12, 2008 incident involving assisting a worker handle supplies caused or aggravated a
specific back condition.
The record also contains an August 12, 2008 note by a nurse who diagnosed chronic low
back pain and possible pulled muscle. However, nurses are not “physicians” as defined under
the Act. Their opinions are of no probative medical value.6
The Office notified appellant of the type of evidence necessary to establish his claim on
August 29, 2008. Specifically, it advised that appellant needed to submit a physician’s report
explaining how the alleged work incident contributed to his back condition. However, appellant
did not submit a reasoned medical opinion explaining how the August 12, 2008 work incident
caused or aggravated a diagnosed medical condition.

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
5

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009).

6

Roy L. Humphrey, 57 ECAB 238 (2005). See 5 U.S.C. § 8101(2) (defining the term “physician”); see also
Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general, can only be given by a
qualified physician).

3

For these reasons, the Board finds that appellant did not meet his burden of proof to
establish his claim.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on August 12, 2008 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated April 7, 2009 is affirmed.
Issued: January 20, 2010
Washington, DC

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

David S. Gerson, 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.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Paul, MN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-121
Issued: February 14, 2013

Case Submitted on the Record

ORDER GRANTING MOTION TO REMAND
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On October 26, 2011 appellant filed a timely appeal of a September 27, 2011 Office of
Workers’ Compensation Programs’ (OWCP) nonmerit decision. The Board docketed the appeal
as No. 12-121. By its September 27, 2011 decision, OWCP denied appellant’s request for a
review of the written record as it was untimely filed.1
Appellant’s 2008 occupational disease claim was accepted by OWCP for a ventral hernia
condition. He was authorized appropriate compensation benefits. In 2008, when appellant filed
the claim, he listed his address as Anoka, MN. The claim was closed on June 21, 2010 at the
request of the employing establishment. In January 2011, appellant submitted a CA-7, claim for
a schedule award, listing an address in Urbandale, IA. OWCP mailed the March 16, 2011
decision denying the schedule award claim to appellant’s address in Anoka, MN. By letter
received on August 22, 2011, appellant requested a copy of the decision denying the schedule
award and noted a change of address to Eagan, MN. On September 12, 2011 appellant requested
a review of the written record from the March 16, 2011 decision. OWCP denied the request as
untimely in a September 27, 2011 decision.

1

Because more than 180 days had elapsed from the last merit decision dated March 16, 2011 to the filing of this
appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.

The Board submitted a pleading to the Director of OWCP on November 2, 2012,
requesting that he respond to outstanding questions regarding this case. By motion dated
December 18, 2012, the Director requested that the case be remanded to OWCP. He noted that a
decision was not deemed to have been issued under FECA unless appellant was sent a copy of
the decision.2 The Director also acknowledged that, under the facts and circumstances of this
case, the March 16, 2011 decision was sent to an improper address and was not received by
appellant; therefore, it was not properly issued.
The Board has duly considered the facts of this case and grants the Director’s motion to
remand. Following such further development as OWCP deems necessary, it shall issue an
appropriate decision regarding appellant’s claim for schedule award compensation.
IT IS HEREBY ORDERED THAT the September 27, 2011 decision of the Office of
Workers’ Compensation Programs is set aside; the case record is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: February 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

2

See Carolyn Mobley, Docket No. 03-1411 (issued February 11, 2004); Kathy B. Glauser, Docket No. 97-2857
(issued June 4, 1999); Tammy J. Kenow, 44 ECAB 619 (1993).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, San Antonio, TX,
Employer
__________________________________________

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

Docket No. 10-1406
Issued: January 13, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 19, 2010 appellant filed a timely appeal of a December 11, 2009 merit decision
of the Office of Workers’ Compensation Programs. 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 met his burden of proof to establish that he sustained
bilateral carpal tunnel syndrome as a result of his federal employment.
FACTUAL HISTORY
On September 14, 2009 appellant, then a 46-year-old mail handler, filed an occupational
disease claim alleging bilateral carpal tunnel syndrome. He noted that he was 20 percent
disabled in both shoulders and developed carpal tunnel from repetitive lifting of heavy tubs at
work and lack of shoulder support. Appellant first became aware of his condition and that it was

caused by his employment in March 2009. He stopped work on July 30, 2009. The employing
establishment controverted the claim.
In a September 25, 2009 letter, the Office advised appellant that the evidence submitted
was insufficient to support his claim, as he did not provide a complete history of his condition or
a physician’s report with a diagnosis and opinion regarding the causal relationship between his
condition and his federal employment. It specifically requested that he describe in detail those
employment-related activities he believed contributed to his condition, all activities he was
involved in outside of his federal employment and any previous injuries to the hand, arm or
wrist. The Office also requested a comprehensive medical report from a treating physician. It
also requested that his employer provide further information regarding appellant’s duties.
Appellant submitted an undated personal narrative. He had a 20 percent disability rating
from the Department of Veterans Affairs for left and right shoulder degenerative joint disease.
Appellant performed his job by himself, even though three people were usually required to work
in the area. He lifted heavy tubs because they were full of flat mail. Appellant experienced pain
in his shoulder by reaching all the way down to his hands after work.
Appellant submitted a February 26, 2009 decision from the Department of Veterans
Affairs which granted him benefits for left and right shoulder degenerative joint disease.
In an April 10, 2009 progress note, Dr. Thomas V. Vu, a Board-certified internist, stated
that appellant had probable bilateral carpal tunnel syndrome and wrist strain. An April 10, 2009
note signed by a registered nurse, recorded that appellant was seen for bilateral wrist pain and
chronic numbness of the hands that progressively worsened. The nurse noted a history of
bilateral wrist pain for the past two to three weeks as a result of changing stations at the
employing establishment and lifting about a thousand mail tubs a day.
Appellant also submitted medical records pertaining to surgery on his left shoulder,
including radiology reports interpreted by Dr. Diane M. Icenogle-Leuschen, a Board-certified
radiologist. He was seen for status post left shoulder arthroplasty. A September 17, 2009
radiology report also noted a left shoulder arthroplasty. Dr. Icenogle-Leuschen observed that the
device was anatomically aligned with no periprosthetic fracture or loosening and no soft tissue
abnormalities were identified.
An April 15, 2009 note from a registered nurse advised that appellant requested that his
primary care physician place him on light-duty status and list probable bilateral carpal tunnel and
wrist strain.
In a July 14, 2009 letter, appellant was approved for light duty from July 13 to
August 13, 2009. In an April 24, 2009 letter, Dr. Teresa E. Hamm, a Board-certified family
practitioner, confirmed that appellant was a patient and advised that he should avoid lifting
objects weighing more than 10 pounds.
In a December 11, 2009 decision, the Office denied appellant’s claim. It found the
medical evidence insufficient to establish carpal tunnel syndrome due to his federal employment.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the reliable,
probative and substantial evidence2 including that he sustained an injury in the performance of
duty and that any specific condition or disability for work for which he claims compensation is
causally related to that employment injury.3 For an occupational disease claim, an employee
must submit: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
specified employment factors or incident.6 The opinion of the physician must be based on a
complete factual and medical background of the employee, 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
employee.7 The employee’s lay opinion is not relevant to the medical issue in this case, which
can only be resolved through the submission of probative medical evidence from a physician.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s condition surfaced during a period of employment nor his
belief that his condition was aggravated by his employment is sufficient to establish causal
relationship.9

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

M.M., 60 ECAB __ (Docket No. 08-1510, issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine
Pendleton, 40 ECAB 1143, 1145 (1989).
4

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

5

I.R., 61 ECAB __ (Docket No. 09-1229, issued February 24, 2010); W.D., 61 ECAB __ (Docket No. 09-658,
issued October 22, 2009); D.I., 59 ECAB 158 (November 6, 2007).
6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7

D.S., 61 ECAB __ (Docket No. 09-860, issued November 2, 2009); B.B., 59 ECAB 234 (2007).

8

Gloria J. Mcpherson, 51 ECAB 441 (2000).

9

Supra note 4.

3

ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained bilateral carpal tunnel syndrome caused or aggravated by factors of his employment.
The record reflects that his job required lifting heavy tubs of flat mail; however, he failed to
submit medical evidence sufficient to establish that his bilateral carpal tunnel syndrome was
contributed to by these activities.
In an April 10, 2009 note, Dr. Vu noted treating appellant for probable bilateral carpal
tunnel syndrome and wrist strain. He listed a diagnosis of appellant’s condition but he did not
provide any opinion addressing whether appellant’s employment duties caused or aggravated the
diagnosed conditions. Dr. Vu’s report did not review a history of appellant’s employment duties,
specifically any repetitive lifting of heavy tubs of mail. He did not explain how appellant’s
employment duties would be completed to cause the diagnosed bilateral carpal tunnel syndrome.
The Board notes that Dr. Vu did not provide any history of appellant’s preexisting upper
extremity condition or medical opinion regarding the cause of appellant’s carpal tunnel
syndrome. In addition to the report of Dr. Vu, appellant provided reports from Dr. IcenogleLeuschen concerning the progress of his left shoulder arthroplasty and information from
Dr. Hamm about a 10-pound lifting restriction. Neither physician offered an opinion on whether
appellant’s bilateral carpal tunnel syndrome was causally related to his federal employment. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.10
Appellant suggested that his preexisting shoulder conditions weakened his upper
extremities and predisposed him to development of carpal tunnel syndrome. However, it is well
established that an employee’s belief of causal relation does not establish the fact of such
medical question.11
The record contains progress report notes from registered nurses. The Board has noted,
however, that a nurse is not a physician as defined under the Act. These reports are of no
probative value.12
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
suffered from bilateral carpal tunnel syndrome as a result of his federal employment.

10

C.B., 61 ECAB __ (Docket No. 09-2027, issued May 12, 2010); J.F., 61 ECAB __ (Docket No. 09-1061,
issued November 17, 2009); A.D., 58 ECAB 149 (2006).
11

See Patricia J. Glenn, 53 ECAB 159 (2001).

12

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009); E.H., 60 ECAB ___ (Docket No. 08-1862,
issued July 8, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the December 11, 2009 decision of the Office of
Workers’ Compensation Program is affirmed.
Issued: January 13, 2011
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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Appearances:
Lenin V. Perez, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1302
Issued: February 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 30, 2012 appellant, through counsel, filed a timely appeal from a May 10, 2012
decision by the Office of Workers’ Compensation Programs (OWCP) regarding an overpayment
in the amount of $36,772.58. 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 the case.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment in the amount of
$36,772.58 for the period October 1, 1992 through July 30, 2011; (2) whether OWCP properly
denied waiver of recovery of the overpayment in the compromised amount of $18,400.00; and
(3) whether OWCP gave due regard to relevant factors in setting the rate of recovery from
continuing compensation.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant’s counsel contests the overpayment decision, noting that appellant is
84 years old, that the overpayment was not his fault, and that the collection of the overpayment
presents an undue financial and mental hardship.
FACTUAL HISTORY
On December 19, 1990 appellant, then a 62-year-old mail handler, sustained a traumatic
injury to his back while sweeping mail trays. OWCP accepted his claim for subluxations at C6,
L3 and L4; permanent aggravation of degenerative arthritis of the lumbar spine; and an
aggravation of arthritis of the hips. Appellant stopped work on September 27, 1992 and did not
return. He elected to receive compensation benefits under FECA in lieu of benefits from the
Office of Personnel Management.
On July 26, 2011 the Social Security Administration (SSA) advised OWCP of appellant’s
SSA rate with Federal Employees’ Retirement System (FERS) and without FERS for the periods
commencing October 1992.2 On September 2, 2011 OWCP issued a preliminary determination
that appellant was overpaid in the amount of $36,772.58 from October 1, 1992 through July 30,
2011 because he received FECA benefits and retirement benefits concurrently beginning
October 1, 1992.3 It made a preliminary determination that he was at fault with regard to the
2

Effective October 1992, appellant’s SSA rate with FERS was $939.60 and without FERS was $814.50; effective
December 1992 his rate with FERS was $962.80 and without FERS was $838.80; effective December 1993
appellant’s rate was $993.00 with FERS and $860.60 without FERS; effective December 1994 his rate with FERS
was $1,020.70 and without FERS $884.70; effective December 1995 appellant’s rate with FERS was $1,047.10 and
without FERS $907.60; effective December 1996 his rate with FERS was $1,077.40 and without FERS $933.90;
effective December 1997 appellant’s rate with FERS was $1,100.090 and without FERS $953.50; effective
December 1998 his rate with FERS was $1,114.20 and without FERS $965.80; effective December 1999 appellant’s
rate with FERS was $1,140.90 and without FERS $989.00; effective December 2000 his rate with FERS was
$1,180.70 and without FERS $1,023.50; effective December 2001 appellant’s rate with FERS was $1,212.60 and
without FERS $1,051.10; effective December 2002 his rate with FERS $1,229. 60 and without FERS $1,065.80;
effective December 2003 appellant’s rate with FERS $1,255.40 and without FERS $1,088.10; effective
December 2004 his rate with FERS was $1,289.20 and without FERS $1,117.50; effective December 2005
appellant’s rate with FERS was $1,342.00 and without FERS $1,163.20; effective December 2006 his rate with
FERS $1,386.30 and without FERS $1,201.60; effective December 2007 appellant’s rate with FERS was $1,418.10
and without FERS $1,229.20; effective December 2008 his rate with FERS $1,500.30 and without FERS $1300.50
(this rate continued for the next three years).
3

For the period October 1 through November 30, 1992, OWCP determined that the 28 days offset was $115.48,
which resulted in an overpayment in the amount of $251.58. For the period December 1, 1992 through
November 30, 1993, it determined that appellant’s 28-day FERS offset was $119.08, which resulted in an
overpayment in the amount of 1,552.29. For December 1, 1993 through November 30, 1994, OWCP determined
that his 28-day FERS offset was $122.22, which resulted in an overpayment of $1,593.23. For December 1, 1994
through November 30, 1995, it determined that the 28-day offset was $125.64, which resulted in an overpayment in
the amount of $1,785.63. For December 1, 1995 through November 30, 1996, OWCP determined that the 28-day
offset was $128.77, which resulted in an overpayment in the amount of $1,683.21. For December 1, 1996 through
November 30, 1997, it determined that the 28-day offset was $132.46, which resulted in an overpayment in the
amount of $1,726.71. For December 1, 1997 through November 30, 1998, OWCP determined that the 28-day offset
was $135.23, which resulted in an overpayment in the amount of $1,762.82. For December 1, 1998 through
November 30, 1999, it determined that the 28-day offset was $136.98, which resulted in an overpayment in the
amount of $1,636.50. For December 1, 1999 through November 30, 2000, OWCP determined that the 28-day offset
was $140.22, which resulted in an overpayment in the amount of $1,832.88. For December 1, 2000 through
June 30, 2001, it determined that the 28-day offset was $145.11, which resulted in an overpayment in the amount of
FOOTNOTE 3 CONTINUED ON NEXT PAGE

2

overpayment as he should reasonably have known that his retirement payments from social
security were based in part on his federal earnings. OWCP provided appellant instructions for
contesting the overpayment and the finding of fault and sent financial forms to him to complete.
By letter dated September 22, 2011, appellant, through counsel, requested a
prerecoupment hearing before an OWCP hearing representative and argued that the overpayment
arose through no fault of his own. He disagreed with the amount of the overpayment and
requested the documentation of how it was calculated. Appellant’s counsel noted that appellant
was 83 years old.
By letter dated January 12, 2012, OWCP informed appellant and his attorney that a
telephonic hearing would be conducted on February 16, 2012 at 9:15 a.m. The letter provided
instructions as to how to call in. At the hearing held on February 16, 2011 appellant’s attorney
did not call in and appellant did not feel comfortable representing himself. The hearing
representative gave appellant’s attorney an extension of time to submit financial information.
By letter dated March 12, 2012, appellant’s counsel contended that the overpayment
occurred through no fault of appellant. He noted that appellant was 84 years old and that
collection of the overpayment would cause hardship. Counsel stated that if appellant was
required to pay back the overpayment he could only afford about $25.00 a month. He submitted
financial forms showing that appellant had an income of $4,135.85 a month.4 Appellant listed
monthly expenses of $4,010.00.5
By decision dated May 10, 2012, an OWCP hearing representative found that an
overpayment had occurred in the amount of $36,772.58. Appellant was found not at fault in the
creation of the overpayment. Due to his life expectancy, the principal was compromised by
CONTINUATION OF FOOTNOTE 3. $1,098.69. For July 1 through November 30, 2001, OWCP determined that
the 28-day offset was $145.38, which resulted in an overpayment in the amount of $794.40. For December 1, 2001
through November 30, 2002, it determined that the 28-day offset was $149.08, which resulted in an overpayment in
the amount of $1,943.36. For December 1, 2002 through November 30, 2003, OWCP determined that the 28-day
offset was $151.20, which resulted in an overpayment in the amount of $1,971.08. For December 1, 2003 through
November 30, 2004, it determined that the 28-day offset was $154.43, which resulted in an overpayment in the
amount of $2,018.62. For December 1, 2004 through November 30, 2005, OWCP determined that the 28-day offset
was $158.49, which resulted in an overpayment in the amount of $2,066.03. For December 1, 2005 through
November 30, 2006, it determined that the 28-day offset was $165.05, which resulted in an overpayment in the
amount of $2,151.54. For December 1, 2007 through November 30, 2008, OWCP determined that the 28-day offset
was $170.49, which resulted in an overpayment in the amount of $2,222.46. For December 1, 2008 through July 30,
2011, it determined that the 28-day offset was $184.43, which resulted in an overpayment in the amount of
$6,402.36. The total of these overpayments was $36,772.58.
4

Appellant stated that he receives monthly income from social security in the amount of $1,454.00, FECA
benefits in the amount of $1,173.00; Veterans Administration benefits in the amount of $797.00; local teamster
payment in the amount of $364.81; and a state teamster payment in the amount of $347.04.
5

Appellant’s monthly expenses were: rent: $1,001.00; Comcast TV: $126.56; electric: $155.00; telephone:
$55.00; long distance calling card: $40.00; newspaper: $21.00; house cleaning: $300.00; medication through
Caremark: $53.00, supplements (magnesium, fiber choice and juice plus): $81.75; food (including laundry and toilet
supplies): $600.00; clothes and shoes: $100.00; 1999 Honda repairs: $100.00; auto insurance: $150.00; gas:
$300.00; Sun pass: $25.00; Church: $100.00; Dry cleaning: $40.00; AAA Road Service: $12.00; prescription
glasses: $50.00; cook: $200.00; eating out: $300.00; and drivers: $200.00.

3

reducing the overpayment to $18,400.00. The evidence supported that the collection of the
overpayment would not result in severe financial hardship or be against equity and good
conscience, so waiver was denied. The hearing representative directed recovery of the
overpayment by deduction of $225.00 a pay period from continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d)(2) of FECA provides for limitations on the right to receive compensation
and states in pertinent part:
“(d) Notwithstanding the other provisions of this section, an individual receiving
benefits for disability or death under this subchapter who is also receiving benefits
under subchapter [3] of chapter 84 of this title or benefits under title [2] of the
[SSA] shall be entitled to all such benefits, except that -***
“(2) in the case of benefits received on account of age or death under title 2 of the
[SSA], compensation payable under this subchapter based on the federal service
of an employee shall be reduced by the amount of any such social security
benefits payable that are attributable to [f]ederal service of that employee covered
by chapter 84 of this title.”6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $36,772.58. Appellant received FERS benefits from October 1, 1992 through July 30, 2011
without offset for the portion of social security from claimant’s retirement compensation. Due to
his receipt of a portion of the social security benefits claimant earned as a federal employee as
part of his FERS retirement concurrent with the receipt of benefits under FECA, he received a
prohibited dual benefits. An OWCP overpayment calculation worksheet found that FERS offset
in this amount was not made against the compensation appellant received under FECA. This
created the overpayment of compensation. The Board finds that appellant received an
overpayment of compensation in the amount of $36,772.58 for the period October 1, 1992
through July 30, 2011.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA7 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
6

5 U.S.C. § 8116(d)(2); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter
2.1000.4(e), 2.1000.11(a)-(b) (January 1997); FECA Bulletin No. 97-9 (issued February 3, 1997) (FECA benefits
have to be adjusted for the FERS portion of the SSA benefits, the portion of the SSA benefits earned as a federal
employee is part of the FERS retirement package and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit).
7

20 C.F.R. §§ 8101(4) and 8114; see also 20 C.F.R. § 10.5(s).

4

would defeat the purpose of FECA or would be against equity and good conscience. Thus a
finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good
conscience.
According to 20 C.F.R. § 10.436 recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.8 An individual’s liquid assets
include but are not limited to the value of stocks, bonds, savings accounts, mutual funds and
certificates of deposit.9 Nonliquid assets include but are not limited to the fair market value of an
owner’s equity in property such as a camper, boat, second home and furnishings and supplies.10
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.11 To establish that a valuable right has been
relinquished, it must be shown that the right was in fact valuable, that it cannot be regained and
that the action was based chiefly or solely in reliance on the payments or on the notice of
payment.12
ANALYSIS -- ISSUE 2
Appellant requested waiver of recovery of the overpayment and provided information on
an overpayment recovery questionnaire. He reported a monthly income of $4,135.85. An
OWCP hearing representative determined that appellant’s actual monthly income was $4,288.03.
She noted that although he listed his OWCP income as $1,173.00, this was increased to
$1,223.25 on March 11, 2012. The hearing representative also noted that appellant was paid
compensation every 28 days, which actually resulted in a monthly income of $1,325.28. She
noted that his monthly income, with these adjustments, was $4,288.03. The calculations are
supported by the evidence of record. The hearing representative allowed the full amount of
appellant’s expenses in the amount of $4,010.31. Accordingly, appellant’s income was $277.72
greater than his expenses.
8

Id. at § 8129(b).

9

See Maria A. McCarthy, Docket No. 94-219 (issued June 9, 1995).

10

20 C.F.R. § 10.436. OWCP’s procedures provide that assets must not exceed a resource base of $4,800.00 for
an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).
11

Id.

12

Id.

5

The Board find that OWCP properly determined that recovery of the overpayment would
not defeat the purpose of FECA. Although counsel argued that it was against equity and good
conscience to collect the debt due to appellant’s advanced age and that he was not at fault in the
creation of the overpayment, the Board finds that OWCP properly took these matters into
consideration when it compromised the amount of the overpayment, reducing it from $36,772.58
to $18,400.00. Further, there is no evidence that appellant relinquished a valuable right or
changed his position for the worse in reliance on the excess compensation he received. Pursuant
to its regulations, OWCP properly found that recovery of the overpayment would not be against
equity or good conscience.
As the evidence in this case fails to support that the recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying a waiver of recovery of the compromised
overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 provides that when an overpayment has been made to an individual because
of an error of factor law, adjustment shall be made by decreasing later payments to which the
individual is entitled.13
Section 10.441 of OWCP’s regulations provide that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account 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 hardship.14
Under OWCP’s procedures, the compromise of all or part of the overpayment and any
charges may be made depending upon the individual claimant’s financial circumstances in order
to set a repayment schedule. Compromise of the principal of the overpayment can be considered
if application of the interest charges would extend the period of repayment by more than 35
percent. Such a determination is made at the time the repayment schedule is established.15
Compromise is a matter which rests in the discretion of OWCP.16
ANALYSIS -- ISSUE 3
In setting the rate of recovery from appellant’s continuing compensation, an OWCP
hearing representative considered the fact that recovery of the principal balance of $38,772.58
13

20 C.F.R. § 10.436.

14

Id. at § 10.441(a).

15

Federal (FECA) Procedure Manual, supra note 10, Debt Liquidation, Chapter 6.300.5 (May 2004). See
Jorge E. Diaz, 53 ECAB 403 (2002).
16

D.C., Docket No. 10-1046 (issued January 19, 2011); Jorge E. Diaz, supra note 15; Linda D. Lane, 46 ECAB
727 (1995).

6

with interest would take appellant 84.73 months to repay, or over seven years to repay. By
compromising the amount of the overpayment to equal $18,400.00, it was determined that he
could repay this balance over his remaining life expectancy of 85.2 months.
OWCP took several factors into consideration in setting the rate of recovery from
appellant’s continuing compensation, including financial circumstances, the extent of the
overpayment and the amount of time it would take to recover the debt. It determined that the
debt would be collected by deducting $225.00 from each of appellant’s continuing compensation
payments.
The Board finds that OWCP did not act unreasonably in determining the amount to be
taken out of appellant’s continuing compensation checks. Appellant’s monthly income was
$4,288.03 and his monthly expenses were listed as $4,010.31. The difference between these two
amounts is $277.72. OWCP acted within its discretion when it determined that it would collect
the compromised overpayment of $18,400.00 by deducting $225.00 from each of appellant’s
continuing compensation payments.
CONCLUSION
The Board finds that OWCP properly found an overpayment in the amount of
$36,772.58; properly denied waiver of recovery of the overpayment in the compromised amount
of $18,400.00; and determined that OWCP gave due regard to relevant factors in setting the rate
of recovery for continuing compensation.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 10, 2012 is affirmed.
Issued: February 22, 2013
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE ARMY, NATIONAL
GUARD YOUTH CHALLENGE PROGRAM,
ILLINOIS NATIONAL GUARD, Springfield, IL,
Employer
__________________________________________

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

Docket No. 08-1442
Issued: November 3, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 15, 2008 appellant filed a timely appeal of decisions of the Office of Workers’
Compensation Programs dated September 6, 2007 and March 20, 2008 denying her claim for
compensation as fact of injury was not established. Pursuant to 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 established that she sustained an injury in the performance
of duty, as alleged.
FACTUAL HISTORY
On July 5, 2007 appellant, then a 55-year-old manager, filed an occupational disease
claim alleging that as a result of constant use of the telephone and cradling the telephone at work

from June 5 through 7, 2007, she suffered from pinched or damaged nerves in her neck, back,
shoulder and arms.
In support of her claim, appellant submitted notes from physical assessments done on
June 11 and 15, 2007 wherein Dr. Eugene Wenthe, a Board-certified family practitioner,
indicated that appellant was complaining of pain in her neck, back and shoulder. These notes are
largely illegible.
By letter dated July 20, 2007, the Office requested that appellant submit medical
evidence of a diagnosed condition causally related to the alleged employment factors. In
response appellant submitted physical therapy notes.
In a July 27, 2007 report, Dr. Joshua D. Warach, a Board-certified neurologist, noted that
electromyogram/nerve conduction velocity studies in both of appellant’s upper extremities
provided evidence of a right C6 radiculopathy as well as left middle cervical root irritation,
electrophysiologically subacute. He noted that cervical spine x-rays of July 12, 2007 with
flexion and extension views showed degenerative changes.
Appellant also submitted notes dated August 2 and 21, 2007 by Dr. Wenthe indicating
that appellant could not drive over 20 miles in one day and excusing her from a conference
because she could not drive the necessary distance due to neck, back and shoulder pain.
By decision dated September 6, 2007, the Office denied appellant’s claim for
compensation because the medical evidence did not establish that the claimed medical condition
resulted from the accepted events.
By letter dated September 11, 2007, appellant, through her attorney, requested a
telephonic hearing. This hearing was conducted on January 4, 2008 at which point she testified
that, during the period June 4 to 7, 2007, one of the busiest times of the year, she worked longer
hours and was constantly on the telephone and cradling the telephone with her neck while typing
on the computer. Appellant noted that she was not having any problems with her neck prior to
June 4, 2007 and that after these busy days she developed a neck problem and sought medical
treatment from her civilian doctor, Dr. Wenthe.
In further support of her claim, appellant submitted the result of a June 11, 2007 x-ray of
the thoracic spine which was interpreted by Dr. Anton J. Johnson, a Board-certified radiologist,
as showing mild degenerative changes, no evidence of acute fracture or subluxation of thoracic
spine. An x-ray of the same date of the cervical spine was interpreted by Dr. Johnson as showing
no evidence of acute fracture, subluxation, prevertebral soft tissue swelling, or neural foraminal
encroachment by hypertrophic spur formation.
In an electrocardiogram report dated June 22, 2007, Dr. Robert V. Trask, a Boardcertified internist with a subspecialty in cardiovascular disease, noted that the study was
generally normal with mild predominantly fixed distal anteroseptal defect without significant
reversible ischemia.

2

By decision dated March 20, 2008, the hearing representative affirmed the Office’s
September 6, 2007 decision. He noted that the medical records provided a diagnosis of cervical
radiculopathy but failed to link this condition to appellant’s claimed employment factors.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,2 including that she is an “employee” within the meaning of
the Act3 and that she filed her claim within the applicable time limitation.4 To establish that an
injury was sustained in the performance of duty in a claim for occupational disease, an employee
must submit: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.5 The medical evidence must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6
ANALYSIS
The Board finds that appellant failed to meet her burden of proof to establish a prima
facie claim for compensation. Although she submitted a statement which identified the factors
of employment that she believed caused her condition, which the Office accepted as factual, she
failed to submit medical evidence sufficient to show that she developed a diagnosed condition
causally related to these employment factors. The Office informed appellant of the need to
submit a physician’s opinion which explained how the claimed condition was related to the
implicated employment factors. However, none of the medical evidence in the record establishes
this causal relationship. The reports of Drs. Warach, Johnson and Trask discuss objective tests
but these physicians make no conclusions on causation. Dr. Wenthe’s reports note symptoms
and indicate restrictions on activity, but also do not make any conclusions with regard to
causation. An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

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

6

Solomon Polen, 51 ECAB 441 (2000); see also Michael E. Smith, 50 ECAB 313 (1999).

3

employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.7 As appellant failed to provide medical evidence establishing a
causal relationship between a medical condition and her claimed employment factors, the Office
properly denied her claim.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury in the
performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 20, 2008 and September 6, 2007 are affirmed.
Issued: November 3, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Brownsville, TX, Employer
__________________________________________

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

Docket No. 11-19
Issued: August 3, 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 a timely appeal from a June 14, 2010 schedule award
decision of the Office of Workers’ Compensation Programs (OWCP). 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 schedule award issue.
ISSUE
The issue is whether appellant sustained more than 16 percent binaural hearing loss
causally related to his employment.
FACTUAL HISTORY
On July 3, 2008 appellant, then a 53-year-old customs and border protection officer, filed
an occupational disease claim alleging that he sustained a noise-induced hearing loss. He

1

5 U.S.C. § 8101 et seq.

became aware of his condition and its relationship to his employment on January 1, 2000.
Appellant did not stop work.
Appellant submitted an undated statement advising that he worked at the employing
establishment since May 1993 and was exposed to loud noise due to a variety of job functions.
On November 20, 2008 the employing establishment confirmed that appellant had some
exposure to noise at work, including weapons training.
A December 24, 1992 audiogram exhibited the following decibel (dBA) losses at 500,
1,000, 2,000 and 3,000 Hertz (Hz): 5, 0, 0 and 5 for the right ear and 5, -5, 15 and 15 for the left
ear. At the same frequency levels, a June 10, 1998 audiogram showed dBA losses of 30, 25, 30
and 40 for the right ear and 20, 20, 35 and 35 for the left ear.
A December 11, 2008 statement of accepted facts noted that appellant’s hearing was
normal prior to his employment and that he was exposed to occupational noise. An updated
April 10, 2009 statement of accepted facts further detailed that he worked for the employing
establishment since May 1993 and was exposed to noise generated by refrigeration units,
compressors, gunfire, aircraft and various vehicle engines.
OWCP referred appellant for a second opinion examination to Dr. Gregory S. Rowin, an
otolaryngologist. In a January 6, 2009 report, Dr. Rowin noted that appellant experienced
progressive hearing problems for 10 years and worked in a noisy environment without
protection. On examination, he did not observe any physical abnormalities. An audiogram
conducted on January 6, 2009 showed dBA losses of 30, 30, 40 and 40 for the right ear and 25,
35, 45 and 45 for the left ear. In view of an atypical pattern, Dr. Rowin diagnosed sloping, mildto-moderate sensorineural hearing loss “more likely than not secondary to [appellant’s] loud
noise exposure” and in excess of what would be normally predicated on the basis of presbycusis.
He recommended binaural hearing aids and ear protection. Applying the standard provided by
the American Medical Association, Guides to the Evaluation of Permanent Impairment2
(hereinafter A.M.A., Guides) to the January 6, 2009 audiometric data, Dr. Rowin calculated a
binaural hearing impairment of 15.62 percent. On the form report, he added five percent
impairment for tinnitus, for a total of 20.62 percent total impairment, next to the question asking
whether appellant had tinnitus that impacted activities of daily life. Dr. Rowin listed January 6,
2009 as the date of maximum medical improvement.3
In March 4 and May 1, 2009 reports, OWCP’s medical adviser agreed with Dr. Rowin’s
opinion that appellant sustained 16 percent binaural hearing impairment. The medical adviser
did not list any impairment due to tinnitus.
By decision dated June 11, 2009, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss and authorized hearing aids. On June 14, 2010 it granted a schedule
award for 16 percent binaural hearing loss for the period January 6 to August 17, 2009.
2

A.M.A., Guides (6th ed. 2008).

3

In the original January 6, 2009 report, Dr. Rowin checked the “not due” box in response to a form question
asking whether appellant’s sensorineural hearing loss was due to occupational noise exposure. OWCP informed
him of this incongruity in a May 11, 2009 letter. Dr. Rowin later corrected his mistake in a June 10, 2009
supplemental report.

2

LEGAL PRECEDENT
FECA’s schedule award provision and its implementing regulations4 set forth the number
of weeks of compensation payable to employees sustaining permanent impairment from loss of
or loss of use of scheduled members or functions of the body. An employee is entitled to a
maximum award of 52 weeks of compensation for complete loss of hearing of one ear and 200
weeks of compensation for complete loss of hearing of both ears.5 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.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the “fence” of 25 dBA is deducted because, as the
A.M.A., Guides points out, losses below 25 dBA 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. Binaural loss is determined by first
calculating the loss in each ear using the formula for monaural loss: the lesser loss is multiplied
by five, then added to the greater loss, and the total is divided by six to arrive at the amount of
the binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.7
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the accepted
employment injury. The Board has explained that maximum medical improvement means that
the physical condition of the injured member of the body has stabilized and will not improve
further. The determination of whether maximum medical improvement 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.8
ANALYSIS
Appellant filed a claim for binaural hearing loss and was referred to Dr. Rowin for a
second opinion examination. After conducting a thorough examination and reviewing the
audiometric data, Dr. Rowin diagnosed bilateral sensorineural hearing loss caused by
occupational noise exposure. OWCP calculated that appellant sustained a 16 percent binaural

4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(13).

6

20 C.F.R. § 10.404. See also Mark A. Holloway, 55 ECAB 321, 325 (2004).

7

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

8

Holloway, supra note 6 at 325.

3

hearing loss and granted a corresponding schedule award for the period January 6 to
August 17, 2009.
Appellant argued on appeal that he sustained a binaural hearing impairment rating of 30
to 40 percent. Applying the A.M.A., Guides standard to the January 6, 2009 audiogram, his right
ear recorded losses of 30, 30, 40 and 40 dBA. The total loss was 140 dBA. When divided by
four, the result was an average hearing loss of 35 dBA. The average hearing of 35 dBA was
reduced by the fence of 25 dBA to 10 dBA. This figure was then multiplied by the established
factor of 1.5, yielding 15 percent monaural impairment of the right ear. At the same frequency
levels, appellant’s left ear recorded losses of 25, 35, 45 and 45 dBA at 500, 1,000, 2,000 and
3,000 Hz, respectively. The total loss was 150 dBA. When divided by four, the result was an
average hearing loss of 37.5 dBA. The average hearing of 37.5 dBA was reduced by the fence of
25 dBA to equal 12.5 dBA. This figure was then multiplied by the established factor of 1.5,
yielding 18.75 percent monaural impairment of the left ear. In calculating binaural hearing loss,
the lesser monaural loss of 15 percent for the right ear is first multiplied by five to equal 75.
This amount is added to the greater monaural loss of 18.75 percent for the left ear to equal 93.75,
which is then divided by six to arrive at 15.625 percent binaural hearing loss. This was properly
rounded up to 16 percent by OWCP.9
The Board notes that Dr. Rowin included 5 percent impairment for tinnitus when he
calculated 21 percent binaural hearing impairment. The A.M.A., Guides provides that, if tinnitus
interferes with activities of daily living such as sleeping, reading and other tasks requiring
concentration, up to five percent may be added to a measurable binaural hearing impairment.10
While Dr. Rowin included impairment for this condition, he did not address how it interfered
with activities of daily living.11 The record does not contain any allegations of tinnitus by
appellant. Accordingly, the Board finds that appellant has not established tinnitus as
compensable.
Appellant also contends that his schedule award should have commenced in 2000. When
loss of use of a scheduled member or function of the body is less than 100 percent, the amount of
compensation paid is in proportion to the percentage of loss of use.12 Under FECA, the
maximum award for binaural hearing loss is 200 weeks of compensation. Since appellant’s loss
was 16 percent, he was entitled to two percent of 200 weeks of compensation, which amounted
to 32 weeks of compensation. His schedule award ran from January 6, 2009, the date of
maximum medical improvement, through August 17, 2009, which equates to 32 weeks.
Regarding the time at which a schedule award begins to run, it is well established that the period
commences on the date that the employee reaches maximum medical improvement from the
residuals of the employment injury. The determination of whether maximum medical
improvement has been reached is based on the medical evidence of record. The date is usually
9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)
(January 2010) (fractions should be rounded down from .49 or up from .50).
10

A.M.A., Guides, supra note 2 at 249. See also R.D., 59 ECAB 127, 131 (2007).

11

J.B., Docket No. 10-1987 (issued June 3, 2011); Horace L. Fuller, Docket No. 03-771 (issued May 23, 2003) at
n.17.
12

5 U.S.C. § 8107(c)(19); D.J., 59 ECAB 620 (2008).

4

the date of the medical examination which determined the extent of the impairment.13 Here, the
date of such was January 6, 2009. Therefore, OWCP properly determined that appellant was
entitled to a schedule award for 16 percent binaural hearing loss for the period January 6 to
August 17, 2010.
Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
increased impairment.
CONCLUSION
The Board finds that appellant failed to establish that he sustained more than 16 percent
binaural hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the June 14, 2010 schedule award decision of
Office of Workers’ Compensation Programs is affirmed.
Issued: August 3, 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

13

See Richard Larry Enders, 48 ECAB 184 (1996). See also P.C., 58 ECAB 539 (2007).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, New York, NY, Employer
__________________________________________
Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0250
Issued: January 11, 2022

Case Submitted on the Record

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

On December 8, 2020 appellant filed a timely appeal from a September 15, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 21-0250.
On November 13, 2018 appellant, then a 70-year-old registered nurse, filed a traumatic
injury claim (Form CA-1) alleging that on October 5, 2018 she aggravated a preexisting right
shoulder condition when pushing a wheelchair while in the performance of duty. 2 She did not stop
work.
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 has a previously accepted February 14, 2000 traumatic injury claim for cervical strain with
radiculopathy under OWCP File No. xxxxxx610. She also filed a prior claim for a December 10, 2014 traumatic
injury to her right shoulder and chest under OWCP File No. xxxxxx009, which OWCP denied. Appellant’s claims
have not been administratively combined.

By decision dated September 17, 2019, OWCP accepted that the October 5, 2018 incident
occurred as described. However, it denied appellant’s traumatic injury claim, finding that the
medical evidence of record was insufficient to establish a causal relationship between the accepted
employment incident and her diagnosed medical conditions.
On July 2, 2020 appellant, through counsel, requested reconsideration of the September 17,
2019 decision.
By decision dated September 15, 2020, OWCP denied modification of its prior decision.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files. 3 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required. 4 Herein, appellant’s claims
under OWCP File Nos. xxxxxx610 and xxxxxx009 also involved injuries to the right shoulder
and/or neck, which are at issue in the present claim under OWCP File No. xxxxxx615. For a full
and fair adjudication, this case must be returned to OWCP to administratively combine the current
case record with OWCP File Nos. xxxxxx610 and xxxxxx009, so it can consider all relevant claim
files and accompanying evidence in adjudicating appellant’s current traumatic injury claim.5
Following this and other such further development as OWCP deems necessary, it shall
issue a de novo decision.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; M.L., Docket No. 20-1176 (issued April 29, 2021); L.M., Docket No. 19-1490 (issued January 29, 2020); L.H.,
Docket No 18-1777 (issued July 2, 2019).
5

Supra note 3 at Chapter 2.400.8(c)(1); W.D., Docket No. 19-0961 (issued March 31, 2021); L.P., Docket Nos.
18-1558, 18-1568 (issued June 21, 2019).

2

IT IS HEREBY ORDERED THAT the September 15, 2020 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: January 11, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3