United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chula Vista, CA, Employer
__________________________________________

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

Docket No. 10-1162
Issued: January 10, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 24, 2010 appellant filed an appeal from an October 14, 2009 nonmerit decision
of the Office of Workers’ Compensation Programs denying her request for reconsideration. As
the most recent merit decision is dated September 15, 2008, more than one year prior to the filing
of this appeal, the Board does not have jurisdiction to review the merits of this case pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for merit review of
her claim under 5 U.S.C. § 8128(a).

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
On October 28, 2005 appellant, then a 45-year-old modified letter carrier, filed an
occupational disease claim for compensation alleging that she sustained a neck condition related
to repetitive work activities since April 20, 2002. The employing establishment indicated that
she had not been to work since March 2005. By decision dated September 28, 2006, the Office
denied the claim. It accorded determinative weight to Dr. Thomas J. Sabourin, a Board-certified
orthopedic surgeon and an Office referral physician, who opined that, while appellant had
degenerative disc disease of the cervical spine at multiple levels, this condition was due to
factors other than federal employment; namely, a natural process of spinal degeneration due to
aging and materially aggravated by a significant neck injury in 1994 which was due to a
nonwork-related automobile accident. Dr. Sabourin also opined that while appellant had
temporary aggravation of neck pain or symptoms while carrying a mail sack for approximately
15 months, there was no material change in the underlying degenerative neck condition. He
further noted that appellant had not used a mailbag since 2002 and opined that any temporary
aggravation of the underlying cervical degeneration was resolved.
Appellant disagreed with the Office’s decision and requested an oral hearing before a
hearing representative, which was held February 9, 2007. Subsequent to the hearing, the Office
received statements from her and her representative, corrections to the transcript and a duty
status report from her physician. By decision dated May 2, 2007, an Office hearing
representative affirmed the September 28, 2006 decision.
On May 22, 2007 appellant requested reconsideration. No evidence or argument
accompanied her request. By decision dated June 12, 2007, the Office denied appellant’s request
for reconsideration.
On April 29, 2008 appellant’s attorney requested reconsideration and provided arguments
including that appellant worked outside of her restrictions. The Office also received a
November 28, 2007 report from Dr. John B. Dorsey, a Board-certified orthopedic surgeon, a
May 2, 2008 letter from appellant’s attorney and an April 30, 2008 statement from appellant. By
decision dated September 15, 2008, the Office denied modification of the prior decisions. It
noted that Dr. Dorsey’s opinion on causal relationship was not based on an accurate history of
the duties performed by appellant.
On May 5, 2009 appellant’s attorney requested reconsideration. He argued that the
Office’s facts about appellant’s job duties were incorrect and the veracity of her statement should
be accepted as factual. The Office also received a duplicative copy of Dr. Dorsey’s
November 28, 2007 report, which it previously considered, along with a July 15, 2008 report
from Dr. Kristi A. Dove, a Board-certified neurologist. By decision dated July 13, 2009, the
Office denied appellant’s request for reconsideration.
In a September 3, 2009 letter, appellant requested reconsideration. She stated that, when
her claim was denied on the grounds that the medical evidence was insufficient to establish that
her neck condition resulted from her activities as a postal worker, she was unclear whether that
meant she had not proven that she did the jobs or that the physicians did not tie together the
injury with her job. Appellant indicated that Nurse Sherry Ann Coffin’s May 4, 2003 report in

2

one of her other claims2 was evidence that she performed the repetitive duties of lifting,
weighing and stacking boxes over her shoulder. She argued that those duties could have caused
her neck injury. Appellant noted that Nurse Coffin stated “Of significance was the activities of
weighing the empty boxes due to the amount of repetitive bending and stooping involved in
picking up the boxes for weighing. This was discussed with the supervisor in detail as to why
she cannot bend over the bin and pick up even these empty boxes; however she can work at waist
height or above in doing this activity.” Appellant also indicated that Dr. Dorsey, in his
September 2, 2009 report, stated that her cervical condition was aggravated by her modified-duty
work during the period February 13, 2003 to March 21, 2005. She also contended that her work
duties were too strenuous. Copies of the May 4, 2003 report from Nurse Coffin and the
September 2, 2009 report from Dr. Dorsey were not provided.
By decision dated October 14, 2009, the Office denied appellant’s request for
reconsideration without a merit review finding that she did not raise substantive legal questions
or include new and relevant evidence.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,3 the Office’s regulations provide that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.4 When a claimant fails to meet one of the
above standards, the Office will deny the application for reconsideration without reopening the
case for review of the merits.5
ANALYSIS
Appellant disagreed with the denial of her claim for a neck condition and requested
reconsideration. The underlying issue on reconsideration is medical in nature, whether
appellant’s neck condition is causally related to her work activities beginning April 20, 2002.
In her reconsideration request of September 3, 2009, appellant argues that her work
duties were too strenuous and that a May 4, 2003 nurse’s report in another claim supports that
she performed repetitive duties. In the instant claim, the Office found that the medical evidence
2

The record indicates that appellant has filed two other claims. Under file number xxxxxx159, the Office
accepted that appellant’s full-time letter carrier duties in 2002 caused lumbar strain and an aggravation of thoracic
and lumbosacral neuritis. Under file number xxxxxx292, it denied her claim for an emotional condition allegedly
sustained on March 4, 2005. These other claims are not before the Board on the present appeal.
3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(1)-(2). See Susan A. Filkins, 57 ECAB 630 (2006).

5

Id. at § 10.608(b). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006) (when an application for review of the
merits of a claim does not meet at least one of the three regulatory requirements the Office will deny the application
for review without reviewing the merits of the claim).

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did not establish her claim. It did not accept that appellant worked beyond her restrictions as
alleged by appellant. The Board only has jurisdiction over the present claim and a copy of the
nurse’s report referenced by appellant on reconsideration is not of record. Appellant’s assertions
regarding the contents of evidence not presently before the Board does not show that the Office
erroneously applied or interpreted a specific point of law and it does not advance a relevant legal
argument not previously considered by the Office. Additionally, her argument regarding her
work duties was previously addressed in the Office’s July 13, 2009 decision. The Board has held
that the submission of evidence or argument which does not address the particular issue involved
does not constitute a basis for reopening a case.6 Appellant is not entitled to a review of the
merits of her claim based on the first and second above-noted requirements under section
10.606(b)(2).
Appellant also did not submit any pertinent new and relevant evidence regarding the
underlying medical issue. While she alleged Dr. Dorsey’s September 2, 2009 report was
supportive of her claim, a copy of Dr. Dorsey’s report is not of record.7 Thus, appellant did not
provide any relevant and pertinent new evidence to establish that her neck condition is causally
related to her work activities.
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit new
and relevant evidence not previously considered. As she did not meet any of the necessary
regulatory requirements, she is not entitled to further merit review.
On appeal, appellant reiterates her contention that her doctors have justified her claim
that her cervical condition resulted from her work duties and that her statements regarding her
work assignments were not exaggerated. As noted, the Board does not have jurisdiction over the
merits of this case. The issue is whether the Office properly denied appellant’s request for merit
review. For reasons stated, the Board finds that she is not entitled to further review of the merits.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim under section 8128(a).

6

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

7

The record reflects that the Office received Dr. Dorsey’s September 2, 2009 report on October 27, 2009, after
issuance of its October 14, 2009 decision. The Board may not consider evidence that was not in the case record
when the Office rendered its final decision. See 20 C.F.R. § 501.2(c)(1).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 14, 2009 is affirmed.
Issued: January 10, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
East Orange, NJ, Employer
__________________________________________

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

Docket No. 11-1012
Issued: January 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 16, 2011 appellant, through his attorney, filed a timely appeal from a
December 13, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
regarding his schedule award claim. 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
claim.
ISSUE
The issue is whether appellant has more than 13 percent impairment of the right lower
extremity and more than 13 percent impairment of the left lower extremity, for which he
received a schedule award.

1

5 U.S.C. § 8101-8193.

FACTUAL HISTORY
On June 3, 2003 appellant, then a 48-year-old electronics technician, filed a traumatic
injury claim alleging that he hurt his lower back while moving a 27-inch television. OWCP
accepted the claim for L5-S1 lumbar displacement and radiculopathy. Appellant underwent
L5-S1 surgery on July 10, 2003 and January 22, 2004 and subsequently had a spinal cord
stimulator inserted.
In a January 21, 2006 report, Dr. David Weiss, an osteopath, reported that appellant had
34 percent right lower extremity impairment and 16 percent left lower extremity impairment
based on the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).
In a February 26, 2007 report, Dr. Morley Slutsky, an OWCP medical adviser, reviewed
the medical record, including Dr. Weiss’ January 21, 2006 findings. He recommended that a
second opinion examination because of the significant discrepancies in the clinical findings
reported between Dr. Weiss and the other physicians of record. On March 7, 2007 OWCP
received appellant’s claim for a schedule award.
By letter dated June 14, 2007, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Irving D. Strouse, a Board-certified orthopedic
surgeon, for a second opinion examination. In a July 9, 2007 report, Dr. Strouse advised that
appellant had no objective findings of residual problems in his back and legs. He noted that
appellant exhibited significant evidence of symptom exaggeration and indicated that
electromyogram studies of October 2004 showed no electrophysiologic evidence of motor loss in
the legs from lumbar radiculopathy and no objective sensory or dermatomal findings. Appellant
was noted to have an absent left ankle reflex.
On November 17, 2007 Dr. Arnold T. Berman, an OWCP medical adviser, reviewed the
medical evidence, including Dr. Strouse’s July 9, 2007 findings. He explained why the medical
evidence did not support Dr. Weiss’ impairment rating. Dr. Berman found that, under the fifth
edition of the A.M.A., Guides, there could be a grade 3 sensory loss and pain which equaled
three percent impairment on each side. He also found that the absent S1 left achilles reflex could
be associated with slight weakness and could be considered for an additional five percent
impairment of the left lower extremity, for a total of eight percent impairment of the left leg.
On March 17, 2008 OWCP referred appellant to Dr. Nasser Ani, a Board-certified
orthopedic surgeon, for an impartial medical examination. In an April 10, 2008 report, Dr. Ani
opined that appellant reached maximum medical improvement. He opined that appellant had
about 25 percent impairment of each leg but did not show how he arrived at such rating. On
April 30, 2008 Dr. Henry J. Magliato, an OWCP medical adviser, reviewed Dr. Ani’s report and
used his findings to calculate five percent right lower extremity and five percent left lower
extremity impairment under the fifth edition of the A.M.A., Guides. He stated that Dr. Ani
needed more data to support his rating. In letters dated May 30 and June 27, 2008, OWCP
requested an addendum report from Dr. Ani to clarify the deficiency. In a July 25, 2008 letter,
Dr. Ani indicated that his impairment rating was based on his physical examination findings and
objective testing. On August 15, 2008 Dr. Magliato, the medical adviser, indicated that Dr. Ani

2

had not shown how he calculated a 25 percent loss. He found Dr. Ani’s reliance on the magnetic
resonance imaging (MRI) scan and myelogram tests was not recognized by the A.M.A., Guides
and that he could only rate the neurological status of the lower extremities, of which there was no
documented motor or sensory loss.
On December 9, 2008 OWCP referred appellant for an impartial medical examination
with Dr. Robert Dennis, a Board-certified orthopedist, to resolve the conflict between Dr. Weiss
and Drs. Strouse and Berman. Regarding Dr. Dennis’ selection, the record contains bypass
forms for three other Board-certified orthopedic surgeons who were bypassed because they were
hand specialists.2
In a January 5, 2009 report, Dr. Dennis noted his review of the medical records and set
forth his physical examination findings. He opined that appellant reached maximum medical
improvement on January 21, 2006. Based on the sixth edition of the A.M.A., Guides, Dr. Dennis
opined that appellant had 13 percent whole body impairment or 33 percent impairment of the
lower extremities. Under Table 17-4, page 570, he opined that appellant fit into a class 2 with a
default whole person impairment of 12 percent. Under Table 17-6, page 575, Dr. Dennis
indicated a grade 3 modifier for functional history as appellant had continuing pain symptoms
after treatment and with less than normal activity. Under Table 17-7, page 576, a grade 2
modifier was given for physical examination as appellant had straight leg raising. Under Table
17-9, page 581, a grade 2 modifier was given for clinical studies due to persistent abnormalities
on MRI scan despite two surgeries. Dr. Dennis applied the net adjustment formula and found a
net adjustment of 1, which modified the default impairment plus 1 or 13 percent whole person
impairment. On April 11, 2009 Dr. Slutsky, an OWCP medical adviser, opined maximum
medical improvement was reached on January 5, 2009, the date of Dr. Dennis’ examination. He
further opined that Dr. Dennis’ calculations were invalid as OWCP had not yet adopted the sixth
edition of the A.M.A., Guides.
Effective May 1, 2009, OWCP formally adopted the sixth edition of the A.M.A., Guides.
Accordingly, it referred Dr. Dennis’ report back to its medical adviser for consideration. In a
November 30, 2009 report, Dr. Slutsky, the medical adviser, opined that appellant reached
maximum medical improvement on January 5, 2009, the date of Dr. Dennis’ examination. He
indicated that Dr. Dennis rated appellant under Chapter 17 (spine chapter), which was not
appropriate. Dr. Slutsky indicated that Chapter 16 (lower extremity chapter) was used as
directed by FECA Bulletin No. 09-03. He applied Dr. Dennis’ findings and calculated 13
percent permanent impairment of the left lower extremity and 13 percent permanent impairment
of the right lower extremity. Dr. Slutsky noted that Dr. Dennis found that appellant had slight
residual sensory deficit in the toes in both feet and indicated any one of the L4, L5 and S1 roots
could be affected. Under Table 16-11, page 533, he found a mild or severity 1, sensory loss.
This equated to class 1 loss for sciatic nerve sensory deficit under Table 16-12, page 535 with a
default impairment of four percent lower extremity impairment. Dr. Slutsky found no net
adjustment. For the bilateral sciatic nerve root motor deficit, he found that appellant had a mild
motor deficit of the S1 nerve root under Table 16-11, page 533, which equated to class 1 sciatic
2

The bypassed physicians were Drs. Teddy Atik, George Babuzda and Raymond Decker, all Board-certified
orthopedic surgeons, who specialized in hand surgery.

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nerve motor deficit with default value of nine percent lower extremity impairment. No net
adjustment was found. Dr. Slutsky combined the 4 percent and 9 percent impairments and found
13 percent impairment for both legs.
On January 6, 2010 OWCP requested that Dr. Dennis review the medical adviser’s
impairment rating and calculations along with the date of maximum medical improvement. In a
January 15, 2010 response, Dr. Dennis restated his previous calculations under the sixth edition
of the A.M.A., Guides. He further opined that the date of maximum medical improvement was
January 21, 2006 based on appellant’s clinical status. In an April 21, 2010 report, Dr. Slutsky
reviewed the medical record and explained why he chose the date of Dr. Dennis’ examination as
the date of maximum medical improvement. He further reiterated his justification of this final
impairment rating as Dr. Dennis had used the wrong chapter in calculating impairment.
Dr. Slutsky noted relying on findings of Drs. Ani, Magliato and Dennis in determining
appellant’s impairment.
By decision dated May 20, 2010, OWCP granted appellant a schedule award for 13
percent right lower extremity and 13 percent left lower extremity. The date of maximum
medical improvement was noted to be January 21, 2006. The award ran 74.88 weeks for the
period January 21, 2006 through June 29, 2007.
In a May 27, 2010 letter, appellant through counsel, requested an oral hearing which was
held via videoconference on September 21, 2010. After the hearing, OWCP received a
September 17, 2010 impairment report from Dr. Weiss, who applied his January 21, 2006
findings to the sixth edition of the A.M.A., Guides. Dr. Weiss calculated 35 percent right lower
extremity impairment and 19 percent left lower extremity impairment.
In a December 13, 2010 decision, an OWCP hearing representative affirmed OWCP’s
May 20, 2010 decision with modification to reflect the correct date of maximum medial
improvement as January 5, 2009. The hearing representative found that an OWCP’s medical
adviser could represent the weight of the medical evidence and that the medical adviser had
properly applied the findings of the impartial medical examiner, Dr. Dennis, to the A.M.A.,
Guides.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.5 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

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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 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.10 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.11 In situations where there exist opposing medical reports of virtually
equal weight and rationale and the case is referred to an impartial medical specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.12
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
the original report.13 However, when the impartial specialist is unable to clarify or elaborate on
the original report or if a supplemental report is also vague, speculative or lacking in rationale,

6

Ronald R. Kraynak, 53 ECAB 130 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

A.M.A., Guides 494-531.

9

Id. at 521.

10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

12

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

13

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).

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OWCP must submit the case record and a detailed statement of accepted facts to another
impartial specialist for the purpose of obtaining a rationalized medical opinion on the issue.14
To properly resolve a conflict in a schedule award claim, it is the impartial medical
specialist who should provide a reasoned opinion as to a permanent impairment to a scheduled
member of the body in accordance with the A.M.A., Guides. An OWCP medical adviser may
review the opinion, but the resolution of the conflict is the responsibility of the impartial medical
specialist.15
It is well established that OWCP procedures provide that an impartial medical specialist
must be selected from a rotational list of qualified Board-certified specialists, including those
certified by the American Medical Association and American Osteopathic Association.16 The
physician selected as the impartial specialist must be one wholly free to make an independent
evaluation and judgment. To achieve this end, OWCP has developed procedures for the
selection of the impartial medical specialist designed to provide adequate safeguards against the
appearance that the selected physician’s opinion was biased or prejudiced.17 The procedures
contemplate that impartial medical specialists will be selected from Board-certified specialists in
the appropriate geographical area on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.18 The Federal (FECA)
Procedure Manual (the procedure manual) provides that the selection of referee physicians
(impartial medical specialists) is made through a strict rotational system using appropriate
medical directories. The procedure manual provides that the PDS should be used for this
purpose wherever possible.19 The PDS is a set of stand-alone software programs designed to
support the scheduling of second opinion and referee examinations.20 The PDS database of
physicians is obtained from the American Board of Medical Specialties which contains the
names of physicians who are Board-certified in certain specialties. It is well established that,
when a case is referred to an impartial medical specialist for the purpose of resolving a conflict,
the opinion of such specialist, if sufficiently well rationalized and based on proper factual and
medical background must be given special weight.21

14

Nancy Keenan, 56 ECAB 687 (2005); Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB
673 (1996).
15

See Richard R. LeMay, 56 ECAB 341 (2005); Thomas J. Fragale, 55 ECAB 619 (2004).

16

See LaDonna M. Andrews, 55 ECAB 301 (2004); A.R., Docket No. 09-1566 (issued June 2, 2010).

17

See Raymond J. Brown, 52 ECAB 192 (2001); A.R., supra note 16.

18

B.P., Docket No. 08-1457 (issued February 2, 2009).

19

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).

20

Id. at Chapter 3.500.7 (September 1995, May 2003).

21

Gloria J. Godfrey, supra note 12.

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ANALYSIS
OWCP accepted that appellant had work-related L5-S1 displacement and radiculopathy,
for which he underwent two surgeries and had a spinal cord stimulator inserted. Appellant
subsequently requested a schedule award. Due to a conflict between appellant’s physician,
Dr. Weiss, who found that appellant had 34 percent right lower extremity impairment and 16
percent left lower extremity impairment and Dr. Berman, an OWCP medical adviser who
reviewed the second opinion examiner’s findings and found that appellant had three percent
impairment of the right lower extremity and eight percent of the left lower extremity, OWCP
referred appellant to Dr. Ani, as the impartial medical specialist to resolve the conflict in medical
opinion. However, Dr. Ani was unresponsive to OWCP’s attempts for clarification of his
impairment rating. Thus, OWCP properly referred appellant to Dr. Dennis, as the second
impartial specialist to resolve the conflict in medical opinion.
Counsel contended on appeal that OWCP did not properly select Dr. Dennis as the
impartial medical specialist under the PDS as several other Board-certified orthopedic surgeons
were bypassed for the reason of “wrong specialty.” The record reflects that Dr. Dennis’
selection as the impartial medical specialist occurred after three Board-certified orthopedic
surgeons were bypassed because they were hand specialists. It is reasonable for OWCP to
conclude that a hand specialist was not the proper subspecialty where appellant had an accepted
low back condition. In this context, it was proper to bypass such physicians. The Board finds
that there is no evidence that OWCP did not properly select Dr. Dennis from the PDS or that it
failed to comply with its rotational procedures.
Appellant’s counsel next argues that Dr. Dennis did not resolve the conflict in medical
evidence; rather, an OWCP medical adviser resolved the conflict and OWCP erred by relying on
the medical adviser’s opinion. Dr. Dennis stated that he utilized the sixth edition of the A.M.A.,
Guides and opined that appellant had 13 percent whole body impairment or 33 percent
impairment of the lower extremities based on spinal impairment. Neither FECA nor the
regulations provide for the payment of a schedule award for the permanent loss of use of the
back or the body as a whole. FECA itself specifically excludes the back from the definition of
organ.22 However, a schedule award is payable for a permanent impairment of any of the
extremities that is due to an employment-related back condition.23 Dr. Dennis did not otherwise
explain in his January 5, 2009 initial report or in his January 15, 2010 supplemental report how
appellant had any impairment of a scheduled body member under the sixth edition of the
A.M.A., Guides. As such, his finding on impairment is of diminished probative value and is
insufficient to establish a particular degree of permanent impairment to a scheduled body
member.24 Thus, Dr. Dennis’ opinion is insufficient to resolve the medical conflict. The hearing
representative relied on OWCP’s medical adviser’s opinion on permanent impairment and stated
22

5 U.S.C. § 8101(19); see also Jay K. Tomokiyo, 51 ECAB 361 (2000).

23

Denise D. Cason, 48 ECAB 530, 531 (1997); S. Gordon McNeil, 42 ECAB 140 (1990).

24

See Carl J. Cleary, 57 ECAB 563, 568 at note 14 (2006) (an opinion which is not based upon the standards
adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little probative
value in determining the extent of a claimant’s impairment).

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that an OWCP medical adviser may be the weight of the evidence. However, the Board has held
that, where there is a medical conflict in a schedule award situation, an OWCP medical adviser
may review the opinion of the impartial specialist with regard to permanent impairment but the
resolution of the conflict is the responsibility of the impartial medial specialist.
Accordingly, the case will be remanded to OWCP for appropriate further development as
OWCP deems necessary and a de novo decision.
Appellant’s counsel additionally argues that Dr. Weiss’ September 17, 2010 impairment
report, wherein he provides an impairment rating under the sixth edition of the A.M.A., Guides,
should carry the weight of the medical evidence or create a new conflict in medical opinion.
Dr. Weiss, however, was involved in the original conflict in medical opinion evidence.
Additional reports from physicians who had been on one side of the original conflict in medical
opinion are typically insufficient to resolve the conflict.25 Dr. Weiss did not perform a current
evaluation or provide current examination findings. Thus, his application of the January 2006
findings to the sixth edition of the A.M.A., Guides is of limited probative value.
CONCLUSION
The Board finds that the case is not in posture for decision as there remains an
outstanding conflict in medical evidence regarding the extent of appellant’s permanent
impairment to his legs.

25

See Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

8

ORDER
IT IS HEREBY ORDERED THAT the December 13, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: January 13, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1998
Issued: April 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 29, 2013 appellant, through her attorney, filed a timely appeal from a
June 25, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
eligibility for wage-loss compensation benefits on the grounds that she no longer had any
disability causally related to her accepted employment-related injury; and (2) whether appellant
has established that she is entitled to disability compensation for the period June 18 to
July 27, 2012.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 3, 2012 appellant, then a 41-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that same date she sustained an injury when she missed a step
while delivering mail and fell on her right hand. She notified her supervisor, first sought medical
treatment and stopped work on that same date. On May 9, 2012 by Form CA-16, OWCP
authorized Dr. Leon Bernstein, Board-certified in orthopedic surgery, to treat appellant’s right
wrist condition for up to 60 days. The Form CA-16 noted that there were limited-duty
assignments available.
By decision dated June 1, 2012, OWCP accepted the claim for right hand sprain. It noted
that the claim had initially been accepted as a minor injury with minimal or no time lost from
work. OWCP advised appellant to submit a Form CA-1 for any time lost from work.
On July 27, 2012 OWCP referred appellant, the case record, a series of questions and a
statement of accepted facts to Dr. Philip D’Ambrosio, a Board-certified orthopedic surgeon, for a
second opinion examination. On July 30, 2012 appellant filed a claim for compensation (Form
CA-7) for leave without pay for the period June 18 to July 27, 2012.
In an August 10, 2012 report, Dr. D’Ambrosio reported that appellant was a right-handed
woman who was employed as a letter carrier for the postal service and he related her history of
injury. He noted that she complained of pain in the right hand. In particular, appellant
complained of a sharp stabbing pain at the lateral aspect, fifth metacarpal. She sought physical
therapy treatment three times a week. Dr. D’Ambrosio reviewed Dr. Bernstein’s handwritten
notes and noted no prior history of injury to the right hand. Upon physical examination, he
reported that the right hand revealed slight swelling over the lateral aspect, fifth metacarpal.
Dr. D’Ambrosio further noted range of motion of the right wrist at 80 degrees of dorsiflexion, 80
degrees of palmar flexion with full pronation and supination, good grip and pinch strength and
intact right hand neurovascular. He diagnosed contusion of the right hand and opined that the
condition had resolved. Dr. D’Ambrosio reported that appellant required no further treatment
and could return to full-duty work without restrictions.
By letter dated August 13, 2012, OWCP informed appellant that the evidence of record
was insufficient to establish her claim for compensation for the period June 18 to July 27, 2012.
Appellant was advised of the medical evidence needed and provided 30 days to submit additional
information.
In treatment notes dated July 3 to August 16, 2012, Dr. Bernstein noted some swelling of
the right hand and reported that appellant complained of pain with activities of daily living. In
an August 16, 2012 Form CA-17, he reported that she was totally disabled as a result of her right
hand sprain and could not return to work.
By decision dated September 4, 2012, OWCP terminated appellant’s entitlement to wageloss compensation benefits effective that same date based on Dr. D’Ambrosio’s opinion that her
right hand sprain had resolved and she could resume full-duty work. It noted that the weight of

2

the medical evidence rested with Dr. D’Ambrosio who established that appellant no longer had
any disability or residuals due to her accepted work-related condition.2
In a September 6, 2012 note and Form CA-17, Dr. Bernstein reported that appellant could
return to work on September 10, 2012 with restrictions.
By decision dated September 14, 2012, OWCP denied appellant’s disability
compensation for the period June 18 to July 27, 2012.
By letter dated March 18, 2013, appellant, through counsel, requested reconsideration of
the September 4, 2012 decision terminating entitlement to wage-loss compensation and the
September 14, 2012 decision denying disability compensation for the period June 18 to
July 27, 2012. Counsel argued that Dr. D’Ambrosio’s examination revealed swelling which was
inconsistent with his findings that appellant’s condition had resolved. He further stated that
further diagnostic testing should have been ordered. Counsel stated that he was submitting
medical evidence from appellant’s physicians which established that her injury was more severe
than a right hand sprain. He noted that the physicians provided a diagnosis of median nerve
neuropathy at or distal to the wrist, right hand.
In an August 22, 2012 report, Dr. Bernstein reported that he last examined appellant on
August 6, 2012. The examination revealed swelling and stiffness along the ulnar border of the
right hand. Range of motion of the fingers was good and neurovascular findings were grossly
normal. A repeated x-ray of the right hand revealed normal bone structures. Dr. Bernstein
opined that appellant’s current condition was consistent with her initial May 3, 2012 trauma.
Appellant remained on total disability because her occupation required constant manual
handling. She was impaired from performing such an activity because she reported that there
was no activity at her employment that would basically eliminate the need to use the right hand
repetitively. Dr. Bernstein opined with reasonable medical certainty that appellant was totally
disabled from her regular gainful employment based on her history and physical findings which
showed continued swelling. He found her current status to be consistent with her original injury.
In a September 10, 2012 medical report, Dr. Abraham Glasman, a Board-certified
neurologist, related appellant’s history of injury. He noted her complaints of tingling and sharp
pains in the hand and was previously diagnosed with right hand sprain. Dr. Glasman
recommended a magnetic resonance imaging (MRI) scan of the right hand and electrodiagnostic
(EMG) study of the right upper extremity.
In an October 6, 2012 diagnostic report, Dr. Richard Silvergleid, a Board-certified
diagnostic radiologist, reported that an MRI scan of the right hand was within normal limits.
In an October 11, 2012 diagnostic report, Dr. Glasman reported that an EMG study of the
right upper extremity revealed findings consistent with right median neuropathy at or distal to the
2

On September 4, 2012 OWCP notified appellant of a proposal to terminate her medical benefits based on
Dr. D’Ambrosio’s opinion that she could resume full-duty work because her right hand sprain had resolved. It
provided him 30 days to submit additional information. The Board notes that no final termination decision has been
issued with respect to the September 4, 2012 proposed termination of medical benefits.

3

wrist. In a November 6, 2012 report, he reported that physical examination revealed slight
warmth and swelling of the right hand compared to left, as well as positive Tinel’s sign at the
right wrist with weakness of hand grasp. Dr. Glasman diagnosed hand injury with subsequent
median neuropathy and possible reflex sympathetic dystrophy/complex regional pain syndrome.
He stated: “It appears [appellant] is unable to work subsequent to this injury.”
In a January 18, 2013 medical report, Dr. Yardley P. Shoulton, a treating physician,
reported that appellant sustained a work-related right hand injury on May 3, 2012 when she was
climbing a flight of stairs and fell on her hand. He first treated her on September 10, 2012 and
noted right hand swelling with complaints of numbness and pain upon examination.
Dr. Shoulton reviewed the prior medical reports and provided summarized findings based on the
reports of Dr. Bernstein and Dr. D’Ambrosio. He noted that, at the time of appellant’s injury,
only an x-ray of the right hand was completed and she was not referred for a neurological
evaluation or an MRI scan to determine her injury and limitations in her ability to perform her
work duties. Dr. Shoulton found that the prior physicians failed to exhaust clinical measures to
appropriately diagnose her injury. He stated that appellant’s case could not be conclusive
without adequate diagnostic testing. Dr. Shoulton stated that he did not believe that her right
hand contusion had resolved given that Dr. D’Ambrosio’s examination found “slight swelling
over the lateral aspect fifth metacarpal” over three months after the initial injury. He stated that
appellant should have been referred to a hand surgeon for diagnostic testing given that
Dr. D’Ambrosio’s physical examination revealed problems of pain, swelling and numbness.
Dr. Shoulton disagreed with Dr. D’Ambrosio’s findings and found that appellant could
not have returned to work full duty as she had limited use of her right hand. He noted that the
swelling in her right hand was still evident from the May 3, 2012 injury. Dr. Shoulton reported
that, while appellant’s right hand x-ray excluded fracture, it could not determine nerve damage.
Appellant’s MRI scan was used to evaluate structural damage which also revealed negative. The
EMG study was performed to rule out focal neuropathy or neuropathic injury due to trauma of
her fall. Dr. Shoulton found that appellant’s EMG findings were consistent with a right median
neuropathy at or distal to the wrist which he opined was due to her May 3, 2012 work injury. He
reported that she was totally disabled and could not return to regular duty since she continued to
have swelling of her hand eight months after the injury with limited use of the right hand.
Dr. Shoulton concluded that appellant’s neuropathic injury was a result of her May 3, 2012 fall,
that her injury was permanent and that she could no longer perform her job as a letter carrier.
In a May 6, 2013 medical report, Dr. Ignatius Daniel Roger, a Board-certified plastic
surgeon and subspecialty Board-certified hand surgeon, reported that he first began treating
appellant on November 26, 2012. He noted that she injured her right hand when she fell while
ascending a flight of stairs. Dr. Roger provided a summary of his examination findings for the
dates he treated appellant. He reviewed her prior medical reports and provided findings
regarding her diagnostic studies. Dr. Roger diagnosed right hand contusion and right median
neuropathy (carpal tunnel syndrome). He opined that appellant’s conditions were causally
related to the May 3, 2012 work injury because she struck her right hand at the level of the
metacarpal accounting for the pathology present at the right hand and wrist. Dr. Roger further
stated that there were persistent ongoing impairments arising from the May 3, 2012 accident
which included restrictions of manipulative activities with the dominant right hand as well as
deficient sensations and wrist motions which prevented her from performing the full scope of her

4

employment duties. He noted that he disagreed with Dr. D’Ambrosio’s report which failed to
describe any testing specifically pertinent to her neurological complaints. Dr. Roger further
stated that Dr. D’Ambrosio reported wrist motion in excess of that seen in his own clinical
examinations, as well as those performed by other physicians. He stated that repeated clinical
examinations and objective testing confirmed the defects associated with appellant’s right
median neuropathy. Dr. Roger recommended surgical neurolysis of the right median nerve and
stated that he could not ascertain the level of permanency as surgery could improve her
condition.
By decision dated June 25, 2013, OWCP affirmed both the September 4, 2012 decision
terminating entitlement to wage-loss compensation benefits and the September 14, 2012 decision
denying disability compensation for the period June 18 to July 27, 2012. It reviewed the
additional evidence and stated, “A conclusory statement attributing the swelling to an incident
that occurred months earlier and that the condition was so severe that it was permanently
disabling was insufficient to establish that the median nerve neuropathy and disability were
causally related to the May 3, 2012 fall.” OWCP found Dr. Roger’s opinion insufficient to
establish causal relationship because he failed to explain how he arrived at his conclusion which
was based on EMG studies obtained six months postinjury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.4 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for right hand sprain as a result of the May 3, 2012
employment incident. By decision dated June 25, 2013, it affirmed its September 4, 2012
decision terminating her entitlement to wage-loss compensation on the grounds that the accepted
right hand sprain had resolved. The Board finds that OWCP failed to meet its burden of proof to
terminate appellant’s entitlement to wage-loss benefits effective September 4, 2012.
The Board notes that appellant continued to submit treatment notes from her treating
physician, Dr. Bernstein from July 3 to August 16, 2012 wherein he noted the continued swelling
of hers right hand and continued to report that she remained totally disabled. In its
September 4, 2012 and June 25, 2013 decisions, OWCP determined that appellant no longer
experienced disability from her May 3, 2012 injury finding that the weight of the medical
3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

5

See Del K. Rykert, 40 ECAB 284 (1988).

5

evidence rested with Dr. D’Ambrosio, the second opinion physician. The Board finds, however,
that Dr. D’Ambrosio’s opinion is insufficient to resolve the question of whether appellant
continued to suffer from disability causally related to the accepted May 3, 2012 injury.
In his August 10, 2012 report, Dr. D’Ambrosio reported that on May 3, 2012, appellant
slipped on steps and struck the lateral aspect of her right hand. Upon physical examination, he
found that the right hand revealed slight swelling over the lateral aspect, fifth metacarpal.
Dr. D’Ambrosio diagnosed contusion of right hand which had resolved. He further stated that
appellant required no further treatment and could return to full-duty work.
The Board finds that the opinion of Dr. D’Ambrosio is not well rationalized.
Dr. D’Ambrosio opinion that appellant’s right hand contusion had resolved contradicted his
examination findings which revealed slight swelling over the lateral aspect. He provided no
opinion regarding why she could return to work full duty, which required repetitive handling of
mail, despite evidence of continued swelling more than three months after the date of injury.
Dr. D’Ambrosio opinion is not sufficiently rationalized to establish that appellant’s condition
ceased with no residuals of her employment-related injury.6 His opinion was vague and
speculative, failing to provide any explanation regarding why her right hand contusion had
resolved with no further disability. The Board has consistently held that a medical opinion not
fortified by rationale is of limited probative value.7 Given the deficiencies in Dr. D’Ambrosio’s
report, OWCP failed to meet its burden of proof to terminate appellant’s wage-loss compensation
benefits effective September 4, 2012.8 The termination decision will be reversed.9
LEGAL PRECEDENT -- ISSUE 2
Under FECA,10 the term disability is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.11 Disability is not
synonymous with a physical impairment which may or may not result in an incapacity to earn the
wages. An employee who has a physical impairment causally related to a federal employment
injury but who nonetheless has the capacity to earn wages he or she was receiving at the time of
injury has no disability as that term is used in FECA.12
Whether a particular injury causes an employee to be disabled and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative

6

V.C., Docket No. 11-1561 (issued February 15, 2012).

7

A.D., 58 ECAB 149 (2006).

8

J.K., Docket No. 13-327 (issued August 7, 2013).

9

D.H., Docket No. 12-1975 (issued June 5, 2013).

10

5 U.S.C. §§ 8101-8193.

11

See Prince E. Wallace, 52 ECAB 357 (2001).

12

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

6

and substantial medical evidence.13 Findings on examination are generally needed to support a
physician’s opinion that an employee is disabled for work. When a physician’s statements
consist only of a repetition of the employee’s complaints that excessive pain caused an inability
to work, without making an objective finding of disability, the physician has not presented a
medical opinion on the issue of disability or a basis for payment of compensation.14 The Board
will not require OWCP to pay compensation for disability without any medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.15
ANALYSIS -- ISSUE 2
In its June 25, 2013 decision, OWCP denied appellant’s claim for disability
compensation for the period June 18 to July 27, 2012. The Board further notes that it has yet to
issue a decision regarding whether any additional conditions should be accepted as employment
related. The Board finds that appellant has not established that she was disabled from June 18 to
July 27, 2012 due to her accepted right wrist strain.
The only physician of record who evaluated appellant during the time period in question
was Dr. Bernstein. While Dr. Bernstein submitted handwritten progress notes dated July 3
and 26, 2012, which continued to note swelling of appellant’s right hand and to report that she
was totally disabled, his reports are of limited probative value. He offered no medical
explanation as to why she would be unable to perform her job duties. In his August 22, 2012
narrative report, Dr. Bernstein noted that he had examined appellant on August 6, 2012. Upon
examination, appellant’s range of motion of the fingers was good, neurovascular findings were
grossly normal and repeat x-ray of the right hand revealed normal bone structures. Dr. Bernstein
did not provide objective medical findings and medical rationale which would substantiate her
inability to work during the period June 18 to July 27, 2012, based upon her accepted condition
of right wrist strain.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss benefits on September 4, 2012. It further finds that appellant has not established that
she is entitled to wage-loss benefits for the period June 18 to July 27, 2012.

13

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

14

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180, 182 (1948).

15

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the June 25, 2013 decision of the Office of
Workers’ Compensation Programs is reversed in part and affirmed in part.
Issued: April 14, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
EMERGENCY PREPAREDNESS & RESPONSE )
FEMA, Washington, DC, Employer
)
__________________________________________ )
K.H., Appellant

Appearances:
George P. Ferro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0171
Issued: August 2, 2018

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 October 30, 2017 appellant, through counsel, filed a timely appeal from a
September 21, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The record provided to the Board includes evidence received after OWCP’s September 21, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $30,076.20 for the period January 1, 2015 through November 12, 2016; (2) whether
OWCP abused its discretion in denying waiver of recovery of the overpayment; and (3) whether
OWCP properly determined that the overpayment should be recovered by deducting $275.00 from
each of appellant’s continuing compensation payments.
FACTUAL HISTORY
On December 3, 2014 appellant, then a 75-year-old Federal Emergency Management
Agency (FEMA) public assistance group supervisor, filed a traumatic injury claim (Form CA-1)
alleging that he injured his hip when he tripped on a floor mat and fell, causing him to hit his head
on a concrete wall. He stopped work and did not return. OWCP accepted the claim for closed
fracture of the neck of his left femur.
On January 15, 2015 appellant filed a claim for compensation (Form CA-7) for leave
without pay (LWOP) for the period November 26, 2014 through January 15, 2015. On the reverse
side of the claim form, the employing establishment indicated that LWOP was allotted for the
period January 12 to 15, 2015.
By letter dated May 27, 2015, the employing establishment indicated that appellant was a
reservist employee in a temporary duty status and not entitled to LWOP. It reported that he was
currently not in a pay status and his last day of pay was December 26, 2014.
In a June 10, 2015 CA-110 telephone memorandum, the employing establishment advised
OWCP that appellant was hired as a FEMA temporary reservist and was called, activated, and
employed when needed.
In a June 10, 2015 narrative statement, appellant asserted that, to date, he had not received
FECA wage-loss compensation benefits. He provided the amounts of his biweekly net pay from
May 27, 2014 through January 5, 2015. Appellant reported receiving a payment of $2,181.56 on
December 19, 2014 and $1,182.33 on January 5, 2015.
By letter dated June 27, 2015, OWCP notified the employing establishment that it had
received appellant’s Form CA-7 claim for compensation for wage loss beginning
November 26, 2014. It requested that the employing establishment provide his leave and earning
statements one year prior to November 26, 2014 to establish an accurate pay rate. On June 23,
2015 the employing establishment provided appellant’s leave and earning statements.
In a June 29, 2015 OWCP pay rate calculation memorandum, the senior claims examiner
reported that appellant was employed as a reservist for FEMA since 2008. The claims examiner
provided calculations to determine appellant’s weekly pay rate as $803.67.
In a June 29, 2015 initial payment memorandum, OWCP’s claims examiner reported that
appellant’s compensation period was from January 12, 2015 and continuing based on the June 26,
2015 pay rate calculation memorandum. The claims examiner noted that for traumatic injury
claims, continuation of pay (COP) dates, if paid, would run 45 days from November 27, 2014
through January 10, 2015. However, a January 21, 2015 certified Form CA-7 indicated that
2

LWOP began on January 12, 2015. The claims examiner noted that, in order to avoid an
overpayment in the event appellant was incorrectly paid COP on January 11, 2015, disability
compensation would be paid beginning January 12, 2015. The payment memorandum requested
that OWCP verify the actual COP dates.
A June 30, 2015 supplemental rolls payment worksheet indicated that appellant received
disability compensation from January 12 through June 27, 2015 based on a weekly pay rate of
$803.67, amounting to a total compensation of $14,379.95.
A June 30, 2015 periodic disability payment worksheet indicated that appellant was placed
on the periodic rolls and received compensation from June 28 through July 25, 2015 in the amount
of $2,411.01.
By letter dated July 1, 2015, OWCP notified appellant that he would be paid compensation
benefits using a weekly gross pay rate of $803.67. It noted that his first payment ran from
January 12 through June 27, 2015 in the amount of $14,379.95 and his regular payment from
June 28 through July 25, 2015 amounted to $2,411.01.
By letter dated July 1, 2015, OWCP notified the employing establishment that it had
received information from its office dated May 27, 2015 which indicated that reservists do not
receive COP. It reported that it had obtained conflicting information as appellant had stated that
he received pay deposits following his injury on December 4 and 19, 2014, and January 5, 2015.
OWCP further noted that review of the January 21, 2015 Form CA-7 indicated that LWOP would
start on January 12, 2015, even though it was claimed beginning November 26, 2014. It reported
that it processed a LWOP payment beginning January 12, 2015 in order to avoid any
overpayments. OWCP requested that the employing establishment advise if COP was paid from
November 27, 2014 through January 11, 2015, and if it was not paid for the full 45 days, to provide
dates that COP was paid.
On June 22, 2015 appellant filed a Form CA-7 for LWOP from June 8 through 21, 2015.
On the reverse side of the form, the employing establishment certified LWOP for those dates.
On June 6, 2016 appellant submitted an affidavit of earnings and employment (CA-1032
form) indicating that in the past 15 months he received a regular retirement check and did not
receive a disability retirement check. He answered “no” when asked if he received benefits from
the Social Security Administration (SSA) as part of an annuity for federal service.
By letter dated July 25, 2016, appellant notified OWCP that he retired as a full-time
employee from FEMA on February 27, 2004. He then returned as a part-time employee later in
2004 on an as needed temporary basis. Appellant reported that he started drawing his annuity after
he retired and was awarded FECA benefits after his November 26, 2014 injury. He reported that
he could not understand why they wanted to cancel his FECA wage-loss benefits and he was never
made aware of not being eligible to collect his regular SSA pension and FECA benefits. Appellant
reported that he was permanently disabled and unable to return to work. He noted that if he was
only entitled to either FECA benefits of $2,421.00 or his normal monthly SSA retirement of
$1,466.00, he would choose the $2,421.00 benefits. Accompanying appellant’s statement was a
notice of annuity adjustment dated January 2, 2016 indicating that his net monthly payment totaled
$917.35 under the old status and $917.79 under the new status.

3

In a September 30, 2016 Federal Employees’ Retirement System (FERS)/SSA dual
benefits calculations worksheet, OWCP submitted an initial request to SSA regarding appellant’s
benefits. It noted his date of birth, a January 1, 1960 FERS period, and a computation date of
January 12, 2015 to present for the dates FECA benefits were payable. On October 21, 2016
OWCP submitted a second request to SSA.
In November 14, 2016 FERS/SSA Dual Benefits Calculations worksheet, SSA reported
that for January 2015, appellant’s SSA rate with FERS amounted to $2,248.70 and SSA rate
without FERS totaled $911.00. For December 2015, the SSA rate with FERS totaled $2,248.70
and without FERS totaled $911.00. For December 2016, the SSA rate with FERS totaled
$2,255.40 and without FERS totaled $913.70.
In a November 25, 2016 FERS offset calculation worksheet, appellant’s SSA rate with
FERS totaled $2,248.70 and SSA without FERS totaled $911.00 with a January 1, 2015 effective
date. A monthly FERS offset of $1,337.70 and a 28 days FERS offset of $1,234.80 was reported.
The overpayment start date was recorded as January 1, 2015 with an end date of November 12,
2016 for a total of 682 days. The worksheet reported that the overpayment amount totaled
$30,076.20.
By notice dated November 23, 2016, OWCP made a preliminary determination that an
overpayment of $30,076.20 had been created for the period January 1, 2015 through November 12,
2016 as appellant was paid dual compensation under FECA and SSA without an appropriate offset.
It found that he was at fault in the creation of the overpayment because he accepted a payment that
he knew or reasonably should have known was incorrect. OWCP found that appellant became
eligible for the FERS/SSA benefits beginning January 1, 2015. It noted that he should have been
aware that he was receiving FERS benefits, which was a retirement benefit, and compensation for
total disability from OWCP for the same period, as he noted his receipt of FERS on his June 6,
2016 CA-1032 form. The November 14, 2016 FERS/SSA Dual Benefits Calculations worksheet
and November 25, 2016 FERS offset calculation worksheet were provided. Appellant was
informed of his options if he wished to contest the fact or amount of overpayment or request a
waiver of recovery and was provided with an overpayment recovery questionnaire (Form
OWCP-20).
By letter dated December 12, 2016, appellant reported that he received a benefit statement
on that date with a check in the amount of $1,186.20. He reported that his normal disability amount
as reported was $2,421.00 per month and according to the statement, deductions were taken out in
the amount of $1,234.80 without any explanation. The accompanying federal employees’
compensation benefits statement was provided.
On December 18, 2016 appellant, through counsel, requested a prerecoupment hearing
before an OWCP hearing representative. Appellant disagreed with the overpayment and reported
that it occurred through no fault of his own.
By letter dated January 10, 2017, OWCP responded to appellant’s December 12, 2016
letter and notified him that the $1,234.80 deduction was made as a FERS offset.
A hearing was held on June 16, 2017 where counsel argued that an overpayment occurred
through no fault of appellant. He reported that appellant retired from the employing establishment

4

in 2004, but returned to work on a part-time basis. Counsel noted that appellant was unaware that
he could not receive both his federal retirement benefits and OWCP benefits as he had earned his
federal pension based on his length of service. He further argued that appellant provided a letter
indicating that he would prefer OWCP benefits over his pension, and argued that repayment would
cause a financial hardship.
By letter dated July 26, 2017, appellant reiterated that he was never made aware that he
could not collect OWCP benefits as well as his normal monthly federal retirement benefits which
he received after 20 years of federal service. He again stated that he would rather receive the
$2,421.00 in monthly workers’ compensation benefits over the $1,466.00 federal retirement
benefits.
By decision dated September 21, 2017, an OWCP hearing representative found that an
overpayment of $30,076.20 was created for the period January 1, 2015 through November 12,
2016 because appellant was paid dual compensation under FECA and SSA without an appropriate
offset. The hearing representative overturned the preliminary determination’s finding of fault,
explaining that he was without fault in the creation of the overpayment because it was reasonable
that he may not have understood that he was in receipt of dual benefits. She reported that
appellant’s letters established that he was unclear regarding the benefits he was receiving and
attempted to correct the situation by advising OWCP that he wanted to elect FECA benefits if he
was required to do so. The hearing representative further found that he failed to submit a Form
OWCP-20 overpayment recovery questionnaire or any supporting financial information and that
the overpayment was, therefore, not subject to waiver. Based on his current 28-day compensation
benefit of $1,230.50, she determined that appellant could repay the overpayment by deducting
$275.00 every 28 days from his continuing compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.4 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”5
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion of
SSA benefits based on age or death that are attributable to federal service.6 If an employee receives
SSA benefits based on federal service, his or her compensation benefits shall be reduced by the
amount of SSA benefits attributable to his or her federal service.

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8116(d). See N.R., Docket No. 12-1853 (issued June 10, 2013).

5

OWCP’s procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.7 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. It will
also provide a hypothetical SSA benefit computed without FERS covered earnings. OWCP will
then deduct the hypothetical benefit from the actual benefit to determine the amount of benefits
which are attributable to federal service and that amount will be deducted from FECA benefits to
obtain the amount of compensation payable.8 It does not require an election between FECA and
SSA benefits, except when the SSA benefits are attributable to the employee’s federal service.9
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether OWCP
properly determined that appellant received a $30,076.20 overpayment of compensation for the
period January 1, 2015 through November 12, 2016.10
With respect to the fact and amount of overpayment, OWCP relied on information provided
by SSA to determine that appellant received SSA/FERS age-related benefits for his federal service
as well as FECA benefits beginning January 1, 2015 without an appropriate offset. A claimant
cannot receive both compensation for wage loss and SSA retirement benefits attributable to federal
service for the same period.11 Therefore, fact of overpayment is established.
The Board finds, however, that the record is unclear regarding the amount of overpayment.
SSA reported the effective date of the dual benefit without appropriate offset as
January 1, 2015. However, the record presently before the Board does not support that appellant
received a dual benefit beginning that date. Appellant’s January 15, 2015 Form CA-7 requested
LWOP for November 26, 2014 through January 15, 2015. On the reverse side of the claim form,
the employing establishment indicated that LWOP was allotted for the period January 12
to 15, 2015. A May 27, 2015 letter from the employing establishment, however, indicated that
appellant was not entitled to LWOP and his last date of pay was December 26, 2014. In a June 29,
2015 initial payment memorandum, OWCP’s claims examiner reported that appellant would be
paid disability compensation beginning January 12, 2015 and continuing, noting that COP would
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995); Chapter
2.1000.4(e)(2) (February 1995); Chapter 2.1000.11 (February 1995); OWCP does not require an election between
FECA benefits and SSA benefits except when they are attributable to the employee’s federal service. See also R.C.,
Docket No. 09-2131 (issued April 2, 2010).
8

FECA Bulletin No. 97-09 (issued February 3, 1997). Retirement benefits paid by OPM or SSA can be paid
concurrently with a schedule award without any deduction from FECA benefits.
9

Supra note 7 at Chapter 2.1000.11(b) (February 1995).

10

J.J., Docket No. 14-0785 (issued September 3, 2014).

11

20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

6

run from November 27, 2014 through January 10, 2015, but that the January 21, 2015 certified
Form CA-7 indicated that LWOP began on January 12, 2015. The payment memorandum
requested OWCP verify the actual COP dates and by letter dated July 1, 2015, OWCP advised the
employing establishment that it had received conflicting information regarding appellant’s COP
status and asked if COP was paid for the full 45 days from November 27, 2014 through January 11,
2015, and if not the days that COP was paid. The employing establishment did not respond.
The Board notes that OWCP’s June 29, 2015 initial payment memorandum and July 1,
2015 letter indicated that the record was unclear regarding whether appellant received COP from
November 27, 2014 through January 11, 2015. OWCP requested clarification regarding the
matter, but failed to discharge its burden in developing the evidence as the issue remains
unresolved. A June 30, 2015 supplemental rolls payment worksheet reflects that appellant
received disability compensation from January 12 through June 27, 2015. OWCP should not have
relied on SSA’s unverified report to determine that the overpayment began on January 1, 2015.12
It is unclear how it determined the overpayment began on January 1, 2015.
OWCP did not provide a complete payment history substantiating appellant’s receipt of
dual SSA age-related and FECA benefits during the purported overpayment period January 1,
2015 through November 12, 2016. The period of the overpayment as determined by OWCP is not
supported by the record.13
OWCP should determine when appellant’s FECA benefits commenced to determine when
he received a prohibited dual benefit without appropriate offset. It should then issue a new
preliminary overpayment determination, with an appropriate overpayment action request form, an
overpayment recovery questionnaire, and instructions for appellant to provide supporting financial
information. After OWCP has further developed the case record, a de novo decision shall be
issued.14
CONCLUSION
The Board finds that the case is not in posture for decision.

12

C.f. A.M., Docket No. 16-1260 (issued November 7, 2016).

13

In T.H., OWCP found that an overpayment of compensation was created for the period January 1, 2008 through
April 2, 2016 for receiving SSA retirement benefits and FECA benefits without an appropriate offset. However,
appellant’s date of injury for this claim was January 30, 2008. OWCP’s records indicated that he received wage-loss
compensation on the supplemental rolls as of June 13, 2008. As it failed to explain why it determined that the period
of overpayment was from January 1, 2008 through April 2, 2016, the Board remanded the case finding that the fact
and amount of overpayment was not established. Docket No. 17-0495 (issued April 19, 2018).
14
As the case is not in posture for decision regarding the amount of overpayment, the issues of waiver and recovery
are moot. See S.F., Docket No. 18-0003 (issued April 19, 2018); see also R.L., Docket No. 11-1251 (issued
January 27, 2012).

7

ORDER
IT IS HEREBY ORDERED THAT the September 21, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is
remanded for further action consistent with this decision of the Board.
Issued: August 2, 2018
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Romulus, MI, Employer
__________________________________________

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

Docket No. 08-773
Issued: October 8, 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 January 18, 2008 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated January 9, 2008 denying his request for wage-loss
compensation on and after March 21, 2005. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he was disabled for work on and after
March 21, 2005 due to his accepted emotional condition.
FACTUAL HISTORY
This case has been before the Board on prior appeal.1 By decision dated March 12, 2007,
the Board found appellant had not established a compensable factor with respect to his
1

Docket Number 06-1983 (issued March 12, 2007).

allegations of harassment and discrimination. However, the Board found that appellant had
established a compensable factor with respect to the June 3, 2004 altercation. Thus, the Board
affirmed in part and set aside in part the July 31, 2006 Office’s decision, which denied
appellant’s request for modification of a July 28, 2005 decision denying his emotional condition
claim. As a compensable factor had been established with regard to the June 3, 2004 altercation,
the Board remanded the case to the Office for further development of the medical evidence. The
findings of law and fact as set forth in the prior opinion are hereby incorporated by reference.2
The relevant facts are set forth below.
On remand, the Office accepted appellant’s claim for temporary aggravation of acute
stress disorder on July 24, 2007.3
Appellant filed a claim for wage loss on July 27, 2007 for the period February 15, 2005
through July 27, 2007.4
In a letter dated August 28, 2007, the Office informed appellant that he would be paid for
195.5 hours of leave without pay for the period November 24, 2004 through March 4, 2005.5 It
noted that appellant was terminated effective March 17, 2005. Appellant was informed that, if
he was requesting additional compensation beyond the compensation authorized in the letter, he
should submit medical and factual evidence regarding his claimed disability for the additional
time.
On August 28, 2007 appellant filed a claim for wage-loss compensation for the period
March 5, 2005 through August 19, 2006.
In response to the Office’s request for additional evidence, appellant submitted reports
from Dr. Surendra Kelwala, a treating Board-certified psychiatrist, dated March 17, 2005,
April 23 and June 26, 2007 and an October 24, 2007 note by Dr. Kelwala. On March 17, 2005
Dr. Kelwala released appellant to work with no restrictions and noted that appellant no longer
felt depressed effective March 21, 2005.
On April 23, 2007 Dr. Kelwala responded to the Office’s March 28 and June 12, 2007
requests for information. He detailed appellant’s medical history, circumstances and treatment
2

On November 26, 2004 appellant filed an occupational disease claim alleging that on or about June 3, 2004 he
first realized his depression was employment related. He stopped work on November 24, 2004, returned on
January 9, 2005 and stopped again on February 14, 2005. On March 17, 2005 appellant was terminated from
employment based on his “inability to perform essential functions -- working in a stressful environment.”
3

On August 28 and October 22, 2007 the Office paid appellant wage-loss compensation for the period
November 24, 2004 to March 20, 2005. An October 17, 2007 pay rate memorandum noted appellant had been paid
for 195.5 hours for the period November 24, 2004 to March 5, 2005 and was subsequently paid for total disability
for the period March 6 to 20, 2005.
4

On a Form CA-1032 dated September 16, 2007, appellant stated that he had been employed for the period
August 21, 2006 through April 2, 2007 earning $10.00 per hour and May 22 through June 20, 2007 earning $9.00
per hour.
5

The Office mistakenly noted the year as “2007.”

2

received since 1998.
Dr. Kelwala opined that appellant was totally disabled from
November 2004 through January 2005, partially disabled from January 2005 until his
employment was terminated in March 2005. Appellant stopped seeing Dr. Kelwala for treatment
in 2006 even though he remained angry and bitter over his treatment by the employing
establishment. Dr. Kelwala opined that appellant was partially disabled and that he was unable
to determine how much the harassment at the employing establishment contributed to the
disability.
Dr. Kelwala, in a June 26, 2007 report, diagnosed moderately severe acute psychological
stress reaction as a result of the accepted compensable factor. He noted the reaction lasted
approximately nine months and that appellant was “still mulling over the incident” when seen in
February 2006. Dr. Kelwala noted that it appeared the condition had resolved when appellant
was seen in August 2006 as “he was working again.” He stated that appellant was seen “very
infrequently from March 2005 onwards” and thus he was unable to provide “exact dates of when
he was over with his problems.” In conclusion, Dr. Kelwala noted that appellant looks no
different than he did prior to working at the employing establishment so he guessed appellant’s
injury was not permanent, but temporary.
In an October 24, 2007 note, Dr. Kelwala stated that appellant continued to suffer from
residuals of the June 2004 incident in February 2006 and that he assumed appellant “was back to
his baseline by August 2006” as he was working at another job. He noted appellant had an
incomplete resolution over the injury as he is angry, resentful and depressed over the treatment
by the Office.
By decision dated January 9, 2008, the Office denied appellant’s claim for wage loss on
or after March 21, 2005. It found the medical evidence insufficient to support appellant’s claim
that his disability was employment related. The Office noted that appellant had been fired from
the employing establishment for cause and there was evidence in the record that he worked
intermittently in the private sector since August 2006.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act the term “disability” means incapacity,
because of an employment injury, to earn the wages that the employee was receiving at the time
of injury.6 Disability is, thus, not synonymous with physical impairment which may or may not
result in an incapacity to earn wages.7 An employee who has a physical impairment causally
related to his federal employment, but who nonetheless has the capacity to earn the wages he was
receiving at the time of injury, has no disability and is not entitled to compensation for loss of
wage-earning capacity.8 When, however, the medical evidence establishes that the residuals of

6

S.M., 58 ECAB ___ (Docket No. 06-536, issued November 24, 2006); Bobbie F. Cowart, 55 ECAB 746 (2004);
Conard Hightower, 54 ECAB 796 (2003); 20 C.F.R. § 10.5(f).
7

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

8

Merle J. Marceau, 53 ECAB 197, 201 (2001).

3

an employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he is entitled to compensation for any loss of wages.9
To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).10 The opinion of the physician must be based on a
complete factual and medical background, 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 Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.12
ANALYSIS
The Office found that appellant sustained a temporary aggravation of acute stress
disorder and paid wage-loss compensation for the period November 24, 2004 through
March 20, 2005. Appellant filed claims for wage-loss disability for the period February 15, 2005
through July 27, 2007 and March 5, 2005 through August 19, 2006. The issue to be resolved is
whether he has established that his claimed disability for the period commencing March 21, 2005
was caused by the accepted emotional condition. The Board finds that appellant has not met his
burden.
The issue of whether a claimant’s disability is related to an accepted condition is a
medical question which must be established by a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disability is causally related to
employment factors and supports that conclusion with sound medical reasoning.13 None of
Dr. Kelwala’s reports are sufficient to support appellant’s claim that his disability was causally
related to the accepted employment factor. He released appellant to work with no restrictions
effective March 21, 2005 and noted that appellant was no longer depressed. In an April 23, 2007
report, Dr. Kelwala opined that appellant was partially disabled, but was unable to determine
how much the harassment at the employing establishment contributed to the disability. In a
June 26, 2007 report, he opined that appellant’s condition appeared to have resolved when he
was seen in August 2006. Dr. Kelwala indicated that appellant had been seen “very infrequently
9

Id. at 201-02.

10

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

11

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

12

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

13

Sandra D. Pruitt, 57 ECAB 126 (2005).

4

from March 2005 onwards” and as a result of the infrequent treatment was unable to provide
“exact dates of when [appellant] was over with his problems.” The Board finds Dr. Kelwala’s
opinions on disability are speculative in that the psychiatrist has stated that he was unable to
determine the contribution of appellant’s harassment contributed to his disability, he was unsure
of the dates of disability and that appellant’s condition appeared to have resolved.14 Moreover,
the only compensable factor accepted by the Office was the June 3, 2004 altercation and
Dr. Kelwala attributed appellant’s condition to harassment by the employing establishment in his
April 23, 2007 report. The Office did not find a compensable factor with respect to appellant’s
allegations of harassment. As noted above, the Board will not require the Office to pay
compensation for disability in the absence of probative medical evidence directly addressing the
cause of the disability or the dates of disability for which compensation is claimed.
Consequently, Dr. Kelwala’s reports are insufficient to establish employment-related disability
for the claimed period.
In addition, Dr. Kelwala’s reports are devoid of any supporting rationale. To be of
probative value, the physician must provide rationale for the opinion reached. Where no such
rationale is present, the medical opinion is of diminished probative value.15 None of the reports
submitted by Dr. Kelwala contain an opinion supported by rationale explaining how appellant’s
disability was employment related. As appellant submitted no such evidence in this case, the
Board finds that he has not met his burden of proof to substantiate that he had an employmentrelated disability beginning March 21, 2005.16
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he was
entitled to wage-loss compensation on or after March 21, 2005.

14

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); D.D., 57 ECAB 734 (2006) (where the Board
held that medical opinions which are speculative or equivocal in character have little probative value).
15

S.D., 58 ECAB ___ (Docket No. 07-1120, issued September 24, 2007); Thaddeus J. Spevack, 53 ECAB
474 (2002).
16

See Mary A. Ceglia, 55 ECAB 626 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 9, 2008 is affirmed.
Issued: October 8, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 09-479
Issued: August 26, 2009

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 December 9, 2008 appellant filed a timely appeal from an October 16, 2008 merit
decision of the Office of Workers’ Compensation Programs denying his schedule award claim.
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 established that he sustained a ratable hearing loss in the
performance of duty.
FACTUAL HISTORY
On May 9, 2008 appellant, a 57-year-old retired supervisory assistant project
superintendent, filed an occupational disease claim (Form CA-2) for hearing loss and ringing in
his ears. He first recognized his hearing loss condition and its relation to his federal employment
on July 21, 1980.

The Office referred appellant, together with a statement of accepted facts, to Dr. Gerald
Randolph, a Board-certified otolaryngologist, for an evaluation. By report dated September 3,
2008, Dr. Randolph found decibel losses of 10, 10, 5 and 25 in the right ear and 20, 10, 5 and 25
in the left ear. He noted that appellant’s hearing had degenerated in excess of that which would
normally have been predicted on the basis of presbycusis alone. However, using the American
Medical Association, Guides to the Evaluation of Permanent Impairment formula for
determining hearing loss, he has a zero percent ratable loss and that no additional rating was
required for tinnitus. Dr. Randolph found that appellant’s workplace noise exposure was of
sufficient intensity and duration to have caused his hearing loss.
By decision dated October 16, 2008, the Office accepted appellant’s hearing loss claim.
It denied his schedule award claim because his hearing loss was not severe enough to be
considered ratable.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.1 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,
Guides (5th ed. 2001) as the appropriate standard for evaluating schedule losses.2 Effective
February 1, 2001, schedule awards are determined in accordance with the A.M.A., Guides (5th
ed. 2001).3
Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are
added up and averaged.4 Then, the fence of 25 decibels is deducted because, as the A.M.A.,
Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied

1

The Act provides that, for complete or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’
compensation. 5 U.S.C. § 8107(c)(13) (2000).
2

20 C.F.R. § 10.404 (2006).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

4

A.M.A., Guides 250 (5th ed. 2001).

5

Id.

6

Id.

2

by five and then added to the greater loss and the total is divided by six to arrive at the amount of
the binaural hearing loss.7
Tinnitus in the presence of unilateral or bilateral hearing impairment may impair speech
discrimination. Therefore, the A.M.A., Guides allow up to five percent additional for tinnitus in
the presence of measurable hearing loss if the tinnitus impacts the ability to perform activities of
daily living.8
ANALYSIS
Appellant claimed a schedule award for his accepted hearing loss. His burden is to
establish, through the production of probative medical evidence, that his hearing loss is ratable as
defined by the A.M.A., Guides. The Board finds that appellant has not met his burden and the
Office properly denied a schedule award claim.
Appellant submitted an employing establishment audiograms conducted between
June 18, 1973 and September 18, 2007. These audiograms are of limited probative value as they
were not accompanied by the appropriate certifications required under Office procedures.9
Moreover, they were not signed or reviewed by a physician.10 The Office is not required to
review every uncertified audiogram which has not been prepared in connection with an
examination by a medical specialist.11
The Office referred appellant to Dr. Randolph for an evaluation. Dr. Randolph applied
the Office’s standardized procedures to the September 3, 2008 audiogram. According to the
Office’s standardized procedures, testing at frequency levels of 500, 1,000, 2,000 and 3,000
hertz (Hz) revealed hearing losses in the right ear of 10, 10, 5 and 25 respectively. These totaled
50 decibels which, when divided by 4, produced an average hearing loss of 12.5 decibels. The
average of 12.5 decibels when reduced by 25 decibels (the first 25 decibels are discounted as
discussed above), equals 0 and which, when multiplied by the established factor of 1.5 produced
a 0 percent hearing loss in the right ear. Testing for the left ear at frequency levels of 500, 1,000,
2,000 and 3,000 Hz revealed hearing losses in the left ear of 20, 10, 5 and 25 respectively. These
totaled 60 decibels which when divided by 4, produced an average hearing loss of 15 decibels.
The average hearing loss of 15 decibels, when reduced by 25 decibels (the first 25 decibels are
7

Id.

8

Id.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.8(a)(1)
(December 1994). Office procedures require that a certification must accompany each audiological battery
indicating that instrument calibration and the environment in which the tests were conducted met the accreditation
standards of the Professional Services Board of ASHA (ANSI § 3.6 (1969) and § 3.1 (1977), respectively). Federal
(FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600, Exhibit 4
(September 1996). No such certification accompanied these audiology reports.
10

Thomas L. Agee, 56 ECAB 465 (1985); Merton J. Sills, 39 ECAB 572 (1988). See also Herman L. Henson, 40
ECAB 341 (1988) (an audiologist is not considered a physician under the Act).
11

Robert E. Cullison, 55 ECAB 570 (2004).

3

discounted as discussed above), equals 0 which, when multiplied by the established factor of 1.5
produced a 0 percent hearing loss in the left ear.
Dr. Randolph calculated appellant’s binaural hearing loss. The zero percent hearing loss
for the right ear, when multiplied by five, yielded a product of zero. The zero percent loss was
then added to the zero percent hearing loss for the left ear to obtain a total of zero. The zero
percent loss was then divided by six, in order to calculate a binaural hearing loss of zero percent.
Dr. Randolph opined that no additional rating was required for tinnitus.
Appellant contests on appeal that his ears ring 24/7 with his new hearing aids. The
evidence of record does not contain probative medical evidence establishing a ratable hearing
loss, such that tinnitus would be compensable. The A.M.A., Guides state that tinnitus in the
presence of unilateral or bilateral hearing impairment may impair speech discrimination.
Therefore, up to five percent can be added for tinnitus in the presence of measurable hearing loss
if the tinnitus impacts the ability to perform activities of daily living.12 As appellant has no
ratable hearing loss, an award is not payable for tinnitus. The Office properly denied appellant’s
schedule award claim.
CONCLUSION
Appellant has not established that he sustained a ratable hearing loss in the performance
of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2009
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
12

David W. Ferrall, 56 ECAB 362 (2005).

4