United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION NORTHERN
CALIFORNIA HEALTH CARE SYSTEM,
Mather, CA, Employer
__________________________________________

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

Docket No. 08-2429
Issued: August 3, 2009

Case Submitted on the Record

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

JURISDICTION
On September 10, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ July 22, 2008 schedule award decision.1 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 the evidence establishes that appellant has more than a 12 percent
permanent partial impairment of the right lower extremity.

1

The Board notes that on August 25, 2008 the Office terminated appellant’s compensation benefits, finding that
her actual earnings as an information technology specialist, which met or exceeded her wages of the job she held
when injured, fairly and reasonably represented her wage-earning capacity. Appellant has not contested its
August 25, 2008 decision in this appeal. Therefore, the Board will not address the wage-earning capacity issue.

FACTUAL HISTORY
On April 10, 2007 appellant, a 40-year-old systems analyst, filed a traumatic injury claim
alleging that she injured her right knee when she slipped on a ramp at work. The Office accepted
her claim for a right knee sprain and medial meniscus tear. On August 6, 2007 appellant
underwent arthroscopic surgery involving an excision of a right medial plica.
Appellant was treated by Dr. Jeffry A. Metheny, a Board-certified orthopedic surgeon.
On April 9, 2008 Dr. Metheny opined that appellant was able to work full time with restrictions,
which precluded kneeling, crawling or lifting more than 25 pounds.
The Office referred appellant, together with the medical record and statement of accepted
facts, to Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, for a second opinion
examination and an opinion as to whether appellant continued to suffer residuals from her workrelated injury and, if so, whether she was disabled as a result of those residuals. It also requested
an opinion as to whether appellant was permanently impaired as a result of her accepted injury
and, if so, the degree of impairment under the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2
In a May 21, 2008 report, Dr. Swartz reviewed the history of appellant’s accepted injury
and diagnosed chondromalacia patella. He stated that she was status post contusion and strain,
anteromedial right knee, with injury to the medial plica. Dr. Swartz noted that appellant had
undergone arthroscopic surgery on April 9, 2007 and had returned to light duty on
October 1, 2007. He related appellant’s complaints of right knee pain, with stabbing radiation to
the popliteal region, as well as numbness in the right lower extremity down to the right ankle.
Examination of the right knee revealed 2 to 4+ laxity (mild), tenderness medially, and
pain with McMurray maneuver. Range of motion was 0 to 155 degrees in the knees bilaterally.
Dr. Swartz found a click in the patella of the right knee, with extension and crepitus.
Circumferential measurements of the thighs and calves were as follows: right thigh -- 48
centimeter (cm), left thigh -- 48.5 cm, right calf -- 36 cm., left calf -- 35.7 cm. Girth of the right
knee joint was 36.5 cm and girth of the left knee joint was 35.7 cm. Appellant was able to squat
only to approximately 60 to 70 percent. Dr. Swartz opined that her preexisting patellar
chondromalacia was probably aggravated by the plica syndrome, which likely caused some
enhancement of the chondromalacia process in the patella.
In a form report dated June 6, 2008, Dr. Swartz indicated that the intensity of appellant’s
right knee pain was “uncomfortable” and interfered with daily activities, such as climbing,
crawling or lifting. He stated that the knee pathology caused atrophy of the right thigh (.5 cm.),
and that post-traumatic irregularity or arthritis affected the patellar cartilage.
The Office forwarded Dr. Swartz’ reports, together with the entire medical file and
statement of accepted facts, to the Office medical adviser for review and a calculation of the
degree of appellant’s permanent impairment under the A.M.A., Guides and an opinion as to the
date of maximum medical improvement. In a July 12, 2008 report, after reviewing his objective
2

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

2

findings and considering the various options available for assessment under the A.M.A., Guides,
the Office medical adviser concluded that appellant had a 12 percent permanent impairment of
her right lower extremity. The Office medical adviser also opined that the date of maximum
medical improvement was May 21, 2008, the date of Dr. Swartz’ examination.
Using an anatomic assessment method, the Office medical adviser referred to Tables
15-15 and 16-10. Under Table 16-10 at page 482, he determined that appellant had a Grade 3
classification for sensory deficit for pain and/or altered sensation that may interfere with activity
in the distribution of the femoral nerve, which corresponded to a 60 percent sensory deficit.
Applying the 60 percent deficit to the maximum five percent impairment allowed (for branches
of the femoral nerve), the Office medical adviser concluded that appellant had a four percent
impairment for pain factors.3 He found no ratable impairment based on range of motion
measurements (155 degrees), thigh atrophy of 0.5 cm., or quadriceps function of 5/5. Therefore,
under this method of assessment, appellant would be entitled to a four percent permanent partial
impairment for the right lower extremity.
Using a diagnosis-based estimate, the Office medical adviser referred to Tables 17-33
and 17-31. Based on Dr. Swartz’ description of 2 to 4+ anterior/posterior laxity (mild) in the
right knee, he assessed seven percent impairment under Table 17-33 at page 546. Pursuant to
Table 17-31 at page 544, he determined that appellant had an additional five percent impairment
for the finding of chondromalacia patella, with some crepitus, without documentation of
roentgenographic narrowing. Dr. Swartz combined the 7 percent impairment for laxity with the
5 percent impairment for patellofemoral pain and crepitation, for a total impairment of 12
percent. He recommended that appellant be awarded the greater award under the diagnosisbased method. Accordingly, Dr. Swartz opined that appellant had a 12 percent permanent partial
impairment of the right lower extremity. The Office medical adviser also opined that the date of
maximum medical improvement was May 21, 2008, the date of Dr. Swartz’ examination.
By decision dated July 22, 2008, the Office granted appellant a schedule award for a 12
percent impairment of her right lower extremity. The period of the award ran from May 21 to
July 5, 2008. The Office found that the date of maximum medical improvement was
May 21, 2008.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
3

The Board notes that the Office medical adviser’s calculations are incorrect. Applying his Grade 3 classification
(60 percent) to a 5 percent maximum would result in 3 percent impairment for pain. It would appear that the Office
medical adviser intended to use a seven percent maximum impairment for branches of the femoral nerve under
Table 17-37 at page 552 of the A.M.A., Guides. Applying his calculations to a seven percent maximum would
result in four percent impairment for pain.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

3

the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law for all claimants, the
Office has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6
Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2001.7
The fifth edition of the A.M.A., Guides provides for three separate methods for
calculating the lower extremity permanent impairment of an individual: anatomic, functional,
and diagnosis based.8 The anatomic method involves noting changes, including muscle atrophy,
nerve impairment and vascular derangement, as found during physical examination.9 The
diagnosis-based method may be used to evaluate impairments caused by specific fractures and
deformities, as well as ligamentous instability, bursitis and various surgical procedures, including
joint replacements and meniscectomies.10 The functional method is used for conditions when
anatomic changes are difficult to categorize or when functional implications have been
documented, and includes range of motion, gait derangement and muscle strength.11 The
evaluating physician must determine which method best describes the impairment of a specific
individual based on patient history and physical examination.12 When uncertain about which
method to use, the evaluator should calculate the impairment using different alternatives and
choose the method or combination of methods that gives the most clinically accurate impairment
rating.13 If more than one method can be used, the method that provides the higher impairment
rating should be adopted.14
The A.M.A., Guides provides that any chapter devoted to pain-related impairment should
not be redundant of, or inconsistent with, principles of impairment rating described in other
chapters. The A.M.A., Guides’ impairment ratings currently include allowances for the pain that
individuals typically experience when they suffer from various injuries or diseases, as articulated
in Chapter 1 of the A.M.A., Guides. Impairment ratings provided in the A.M.A., Guides have
already accounted for pain.15

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

A.M.A., Guides at 525.

9

Id.

10

Id.

11

Id.

12

Id. at 548.

13

Id. at 526.

14

Id. at 555.

15

Id. at 570.

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ANALYSIS
The Board finds that appellant has not established that she has more than 12 percent
impairment of the right lower extremity. Therefore, the Board will affirm the Office’s July 22,
2008 decision.
In his May 21, 2008 second opinion report, Dr. Swartz reviewed the history of
appellant’s accepted injury and diagnosed chondromalacia patella. He stated that appellant was
status post concussion and strain, anteromedial right knee, with injury to the medial plica.
Dr. Swartz noted that appellant had undergone arthroscopic surgery on April 9, 2007. He related
appellant’s complaints of right knee pain, with stabbing radiation to the popliteal region, as well
as numbness in the right lower extremity down to the right ankle. Examination of the right knee
revealed mild laxity (2 to 4+), tenderness medially, and pain with McMurray maneuver. Range
of motion was 0 to 155 degrees in the knees bilaterally. Dr. Swartz found a click in the patella of
the right knee, with extension and crepitus. Circumferential measurements of the thighs and
calves were as follows: right thigh -- 48 cm, left thigh -- 48.5 cm, right calf -- 36 cm, left calf -35.7 cm. Girth of the right knee joint was 36.5 cm and girth of the left knee joint was 35.7 cm.
Appellant was able to squat only to approximately 60 to 70 percent. Dr. Swartz opined that her
preexisting patellar chondromalacia was probably aggravated by the plica syndrome, which
likely caused some enhancement of the chondromalacia process in the patella. On June 6, 2008
he stated that the intensity of appellant’s right knee pain was “uncomfortable” and interfered
with daily activities, such as climbing, crawling or lifting. Dr. Swartz opined that the knee
pathology caused atrophy of the right thigh (.5 cm), and that post-traumatic irregularity, or
arthritis affected the patellar cartilage. He did not provide an opinion as to the degree of
appellant’s permanent impairment based on the A.M.A., Guides.
The Office appropriately routed the case file to the Office medical adviser for review.16
As Dr. Swartz failed to provide an impairment rating, the Office medical adviser properly
applied the A.M.A., Guides to his examination findings and concluded that appellant had a 12
percent impairment of the right lower extremity.17 Using an anatomic assessment method, he
referred to Tables 15-15 and 16-10.18 Under Table 16-10 at page 482, the Office medical adviser
determined that appellant had a Grade 3 classification for sensory deficit for pain and/or altered
sensation that may interfere with activity in the distribution of the femoral nerve, which
corresponded to a 60 percent sensory deficit. Applying the 60 percent deficit to the maximum 5
16

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the Office medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).
17

Pursuant to Office procedures, when the case appears to be in posture for schedule award determination, the
Office will ask the Office medical adviser to evaluate cases. The Office medical adviser is responsible for reviewing
the file, particularly the medical report on which the award is to be based, and then calculating the award. Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a) (June 2003). See also John L.
McClenic, 48 ECAB 552 (1997); Lena P. Huntley, 46 ECAB 643 (1997).
18

Section 17.2l of the A.M.A., Guides provides that partial sensory and motor deficits should be rated as in the
upper extremity under Tables 16-10 and 16-11. A.M.A., Guides at 550.

5

percent impairment allowed (for branches of the femoral nerve), he concluded that appellant had
a 4 percent impairment for pain factors.19 The Office medical adviser found no ratable
impairment based on range of motion measurements (155 degrees), thigh atrophy of 0.5 cm, or
quadriceps function of 5/5. Therefore, under this method of assessment, he determined appellant
would be entitled to a four percent permanent partial impairment for the right lower extremity.
The Office medical adviser, then, appropriately analyzed the degree of appellant’s
permanent impairment under a diagnosis-based estimate,20 to Tables 17-33 and Table 17-31.
Based on Dr. Swartz’ description of 2 to 4+ anterior/posterior laxity (mild) in the right knee, he
assessed seven percent impairment under Table 17-33 at page 546. Pursuant to Table 17-31 at
page 544, he determined that appellant had an additional five percent impairment for the finding
of chondromalacia patella, with some crepitus, without documentation of roentgenographic
narrowing.21 He correctly combined the 7 percent impairment for laxity with the 5 percent
impairment for patellofemoral pain and crepitation, for a total impairment of 12 percent.22
The A.M.A., Guides provides that, if more than one rating method can be used, the
method that provides the higher rating should be adopted.23 Therefore, the Office medical
adviser properly recommended that the diagnosis-based method be adopted, which resulted in a
12 percent impairment rating.24
The Board finds that the Office medical adviser based his opinion on a proper review of
the record and appropriately applied the A.M.A., Guides in finding that appellant had a 12
percent impairment of the right lower extremity. There is no other probative medical evidence of
record to establish that appellant has more than a 12 percent impairment of her right lower
extremity. Therefore, appellant has not established entitlement to a schedule award for more
than a 12 percent impairment of her right lower extremity.
The Office medical adviser found that appellant reached maximum medical improvement
on May 21, 2008, the date of Dr. Swartz’ examination. It is well established that the period of a
schedule award commences on the date that the employee reaches maximum medical
improvement from the residuals of the accepted employment injury. The determination of
19

See supra note 3.

20

A.M.A., Guides 526, 555.

21

Appellant met the requirements of the last footnote of Table 17-31, in that she had a history of direct trauma to
her right knee, complaints of patellofemoral pain and crepitation on physical examination. A.M.A., Guides 544,
Table 17-31.
22

Id. at 526, Table 17-2.

23

A.M.A., Guides 527. Section 17.2 of the A.M.A., Guides provides that functional impairments are chosen for
conditions when anatomic changes are difficult to categorize or when functional implications have been documented
and are assessed last. Id. at 525. A functional assessment was not indicated in this case.
24

The Board notes that the Office medical adviser correctly did not include a separate rating for pain in his
analysis under the diagnosis-based estimate. See L.H., 58 ECAB ___ (Docket No. 06-1691, issued June 18, 2007)
(the impairment ratings in the body organ system chapters of the A.M.A., Guides make allowance for any
accompanying pain). See also T.H., 58 ECAB ___ (Docket No. 06-1500, issued January 31, 2007).

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whether maximum medical improvement has been reached is based on the probative medical
evidence of record and is usually considered to be the date of the evaluation by the attending
physician which is accepted as definitive by the Office.25 The Board finds that the Office
correctly determined that the date of maximum medical improvement was May 21, 2008.
CONCLUSION
The Board finds that appellant failed to establish that she has more than a 12 percent
impairment of the right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the July 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.

Issued: August 3, 2009
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

25

Mark A. Holloway, 55 ECAB 321 (2004).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINSITRATION
MEDICAL CENTER, Tomah, WI, Employer
__________________________________________

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

Docket No. 14-269
Issued: May 12, 2014

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 November 18, 2013 appellant, through her attorney, filed a timely appeal from an
October 3, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her traumatic injury 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 this
case.
ISSUE
The issue is whether appellant sustained an injury on April 8, 2010 in the performance of
duty.
FACTUAL HISTORY
On November 26, 2010 appellant, then a 44-year-old nurse, filed a traumatic injury claim
alleging that on April 8, 2010 she sustained a spinal subluxation pushing a patient in a
wheelchair who weighed over 450 pounds. She did not stop work.
1

5 U.S.C. § 8101 et seq.

By letter dated December 6, 2010, OWCP requested that appellant submit additional
factual and medical information in support of her claim. It further advised her that a chiropractor
was a physician under FECA only to the extent that he or she diagnosed a spinal subluxation by
x-ray.
In a letter dated December 10, 2010, appellant related that she experienced a sharp pain
after pushing a patient. She notified her supervisor within 24 hours of the incident. Appellant’s
pain increased over the course of a few months and she sought treatment.
Appellant submitted chart notes dated November 17 through December 20, 2010 from
Dr. Travis Tann, a chiropractor, who treated her for pain at the midback and indicated that the
pain began seven months ago after she pushed a patient in a wheelchair.
By decision dated January 11, 2011, OWCP denied appellant’s claim after finding that
she had not submitted any medical evidence supporting that she sustained an injury causally
related to the accepted April 8, 2010 employment incident. It determined that the chiropractor
did not diagnose a subluxation by x-ray and, consequently, was not a physician under FECA.
On January 18, 2010 counsel requested reconsideration. She related that she had never
experienced thoracic pain in her back before the April 8, 2010 incident
In an x-ray report dated November 18, 2010, Dr. Tann found arthrosis of the thoracic
spine particularly at T8-L1. He further diagnosed subluxations at T2-6, T9-12 and L1-2.
Appellant submitted chart notes documenting her chiropractic treatment from
December 29, 2010 through February 1, 2011.
By decision dated March 28, 2011, OWCP denied modification of its January 11, 2011
decision.
On March 26, 2012 appellant, through her attorney, requested reconsideration. In a
statement dated March 3, 2012, she related that she did not seek treatment for her injury before
November 17, 2010 because she believed that it would resolve with conservative care.2
By letter dated March 28, 2012, counsel asserted that she had established that she timely
reported the April 8, 2010 incident to the employing establishment and that Dr. Tann diagnosed a
subluxation by x-ray. He stated, “The fact that the subluxation in her back was not diagnosed
until November 2010 does not mean that it was not work related and did not arise out of the
April 8, 2010 incident.” Counsel asserted that appellant, as a nurse, tried to treat her back with
conservative care.
In a decision dated August 30, 2012, OWCP denied modification of its March 28, 2011
decision. It found that the medical evidence was insufficient to show that appellant sustained a

2

In an April 9, 2010 incident report, appellant related that on April 8, 2010 she sustained upper back pain after
pushing a patient weighing over 400 pounds to the parking lot. In an April 30, 2010 employing establishment clinic
note, signed by Dr. Katherine L. Kostamo, a Board-certified internist, a nurse noted that appellant related that she
injured her back on April 8, 2010 pushing a patient. The nurse recommended that appellant make a medical
appointment for an evaluation with either Dr. Kostamo or her private physician.

2

medical condition due to the April 8, 2010 work incident. OWCP noted that her x-rays were not
contemporaneous with the employment incident.
On March 1, 2013 appellant, through her attorney, requested reconsideration.
In a report dated January 25, 2013, Dr. Tann related that appellant described the injury as
occurring when she turned a corner while moving a patient and “felt a sharp pain in her thoracic
and thoracolumbar spine.” He provided examination findings and diagnosed “subluxations on
multiple levels in her thoracic, lumbar and pelvic regions of her spine as well as thoracic and
lumbar pain and disc degeneration as outlined by her radiological report.” Dr. Tann stated, “In
my medical opinion, the facts of the injury are the direct and proximate cause of the diagnoses
that I cited above. This is based on reasonable medical probability. There may be other causes
for this medical problem, but one of the causes is clearly the activities of work described by
[appellant] and described above.”
By decision dated October 3, 2013, OWCP denied modification of its August 30, 2012
decision. It found that the medical evidence was insufficiently rationalized to show that
appellant sustained a medical condition as a result of the April 8, 2010 employment incident.
OWCP further found that the x-rays obtained were not contemporaneous with the incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.6 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.7 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.8
3

5 U.S.C. § 8101 et seq.

4

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

5

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

6

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

7

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Id.

3

Section 8101(2) of FECA provides that the “term ‘physician’ includes chiropractors only
to the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist….”9
ANALYSIS
Appellant alleged that she injured her back on April 8, 2010 pushing a heavy patient in a
wheelchair. She has established that the April 8, 2010 incident occurred at the time, place and in
the manner alleged. The issue, consequently, is whether the medical evidence establishes that
appellant sustained an injury as a result of this incident.
The Board finds that appellant has not established that the April 8, 2010 employment
incident resulted in an injury. The determination of whether an employment incident caused an
injury is generally established by medical evidence.10
On January 25, 2013 Dr. Tann, a chiropractor, noted that appellant related a history of
pain in her thoracic and thoracolumbar spine after moving a patient. He diagnosed multiple
subluxations by x-ray. Dr. Tann attributed the diagnosed conditions to the work injury. As
noted, under section 8101(2) of FECA, chiropractors are only considered physicians and their
reports considered medical evidence to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.11 OWCP’s regulations at 20 C.F.R. § 10.5(b)(b) define
subluxation as an incomplete dislocation, off-centering, misalignment, fixation or abnormal
spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained
in the reading of x-rays.12 As Dr. Tann diagnosed spinal subluxations by x-ray, his report is that
of a physician under FECA.
OWCP found that Dr. Tann’s reports were insufficient to meet appellant’s burden of
proof as he did not obtain x-rays within a reasonable amount of time after the injury and as he
failed to support his opinion with rationale. While diagnostic testing performed immediately
after an alleged injury tends to increase the reliability of a medical opinion regarding the
relationship between any condition documented by the testing and the employment injury, the
Board has held that the timing of diagnostic testing alone should not be given dispositive weight
to the exclusion of other circumstances.13 Therefore, the fact that Dr. Tann did not obtain x-rays
until November 18, 2010 does not preclude him from being a physician under FECA.14 To
discharge a claimant’s burden of proof, however, he must provide sufficient medical rationale to
support the affirmative opinion offered regarding the cause of the diagnosed subluxations.15
Dr. Tann did not explain how the April 8, 2010 employment incident resulted in spinal
9

5 U.S.C. § 8101(2); see also Michelle Salazar, 54 ECAB 523 (2003).

10

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

11

5 U.S.C. § 8101(2); Paul Foster, 56 ECAB 208 (2004).

12

20 C.F.R. § 10.5(b)(b).

13

See Linda L. Mendenhall, 41 ECAB 532 (1990).

14

See Lauramae Heard, 42 ECAB 688 (1991).

15

See supra note 13.

4

subluxations. A mere conclusion without the necessary rationale explaining how and why a
physician believes that a claimant’s accepted exposure could result in a diagnosed condition is
not sufficient to meet a claimant’s burden of proof.16 Such rationale is particularly necessary in
this case given the length of time between the April 8, 2010 work incident and November 2010,
when appellant sought medical treatment.
Appellant also submitted numerous progress reports from Dr. Tann describing her
chiropractic treatment. These reports, however, do not contain a diagnosis or causation finding
and thus are of little probative value. As appellant has failed to submitted reasoned medical
evidence based on a complete factual history addressing whether she sustained an injury on
April 8, 2010, she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury on April 8,
2010 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 3, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 12, 2014
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
16

See J.C., Docket No. 13-1945 (issued February 24, 2014); Beverly A. Spencer, 55 ECAB 501 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF DEFENSE, NATIONAL
SECURITY AGENCY, Fort Meade, MD,
Employer
__________________________________________

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

Docket No. 14-1470
Issued: October 21, 2014

Case Submitted on the Record

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

JURISDICTION
On June 16, 2014 appellant filed a timely appeal from a January 16, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on June 13, 2013.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 16, 2013 appellant, then a 47-year-old part-time office assistant, filed a traumatic
injury claim alleging that on June 13, 2013 she injured her right shoulder causing an
acromioclavicular joint separation. She stated that she felt a pop in her right shoulder while
opening mail with a letter opener. Appellant’s supervisor, Michael J. Ciabby, indicated that
appellant first reported the injury on July 17, 2013. In an occupational health mishap report
dated July 8, 2013, appellant repeated that on June 13, 2013 she heard a pop while opening mail.
She stated that on June 24, 2013 when she felt a burning going down her arm, she went to
occupational health where she was told to see her doctor. Appellant related that she saw her
doctor on June 25, 2013, and he sent her for an x-ray which showed inflammation in the
shoulder. Her doctor recommended a computerized tomography scan.
In reports dated July 19, 2013, Dr. Brent Hines, a Board-certified osteopath specializing
in orthopedic surgery, noted that appellant was seen for evaluation of right shoulder pain that
began on June 13, 2013 as a result of repetitive use. He noted her report that she felt a popping
sensation in her shoulder when she was rushing to open mail at work and currently had right
shoulder pain that radiated down the arm and was aggravated by lateral reaching, overhead
activities and repetitive use and movement of the arm. Dr. Hines indicated that appellant had
stopped work. On right upper extremity examination, he noted weak supraspinatus and external
rotation but normal range of motion and tenderness to palpation over the impingement area.
X-rays demonstrated degenerative changes and no evidence of fracture or dislocation. Dr. Hines
diagnosed impingement syndrome, right shoulder; right rotator cuff syndrome; and right
shoulder pain and advised that appellant could return to modified duty with no use of the right
upper extremity.
On August 23, 2013 Dr. Hines noted that appellant had good relief from a steroid
injection and advised that she could return to regular duties with no restrictions. In a
September 11, 2013 report, Darcy Kresge, a physician’s assistant, reported that appellant had an
increase in right shoulder pain since returning to work without restriction. She again restricted
appellant to no use of the right arm. On September 13, 2013 Dr. Hines noted appellant’s
complaint of right shoulder pain exacerbated by regular activities which had increased over the
past several days. He provided physical examination findings, reiterated his diagnoses and
recommended a magnetic resonance imaging scan study. An October 21, 2013 right shoulder
ultrasound demonstrated a small, full thickness or high grade partial thickness tear of the anterior
portion of the supraspinatus, increased fluid around the biceps tendon consistent with tendinitis,
and findings consistent with shoulder impingement syndrome. In an October 25, 2013 report,
Dr. Hines noted the ultrasound findings. He opined that the rotator cuff tear was likely a
preexisting condition but that appellant had exacerbated the condition and she would likely
continue to aggravate it with repetitive-type activities. Dr. Hines indicated that appellant could
return to modified duties that day.
By letter dated November 25, 2013, OWCP informed appellant that the evidence received
was insufficient to support her claim because it did not include a physician’s opinion as to how
the claimed injury resulted in the diagnosed condition. Appellant was asked to provide a
narrative medical report that included an opinion, supported by a medical explanation, as to how
the reported work incident on June 13, 2013 caused or aggravated a medical condition. She was

2

also asked to provide a statement regarding the circumstances of the claimed injury, her medical
treatment, and any similar condition that preceded the claimed injury. Appellant was also
instructed to explain why she did not report the injury until July 17, 2013.
In a November 9, 2013 report, Dr. Hines noted that right shoulder surgery was planned
for November 20, 2013. On November 20, 2013 he performed a right arthroscopic rotator cuff
repair with subacromial decompression, biceps tenodesis, lysis of adhesions and bursectomy.
By decision dated January 16, 2014, OWCP denied the claim on the grounds that the
evidence did not support that the injury occurred as appellant described, noting that the only
history of injury was the brief statement on the claim form and that she did not respond to the
November 25, 2013 development letter. It further found that the medical evidence did not
establish a diagnosed condition caused by the claimed June 13, 2013 work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.2
OWCP regulations at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.3 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of proof to demonstrate the occurrence of an injury at the time, place
and in the manner alleged, by a preponderance of the reliable, probative and substantial
evidence. Second, the employee must submit sufficient evidence, generally only in the form of
medical evidence, to establish a causal relationship between the employment incident and the
alleged disability and/or condition for which compensation is claimed. An employee may
establish that the employment incident occurred as alleged, but fail to show that his or her
disability and/or condition relates to the employment incident.4
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
2

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

3

20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004).

4

Gary J. Watling, supra note 2.

5

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

3

relationship between the diagnosed condition and the specific employment factors identified by
the employee.6 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.7
ANALYSIS
The Board finds that appellant opened mail at work on June 13, 2013. There is no
contrary evidence. The Board, however, finds that the medical evidence submitted by appellant
is insufficient to establish that her opening mail caused a medical condition as none of the
medical evidence related a diagnosed condition specifically to such duties.
Dr. Hines submitted reports from July 19 to November 20, 2013 when he performed a
right arthroscopic rotator cuff repair. While he noted appellant’s report that her right shoulder
pain began on June 13, 2013 when she felt a popping sensation and initially diagnosed right
impingement syndrome, Dr. Hines did not provide sufficient medical rationale to fulfill
appellant’s burden that she sustained a work injury on that date. Following the October 21, 2013
ultrasound, he diagnosed a preexisting right shoulder rotator cuff tear that had been exacerbated.
Dr. Hines opined that repetitive activities would continue to exacerbate the condition. However,
he did not specifically relate any of the diagnosed conditions to the June 13, 2013 incident when
appellant was opening mail or offer any explanation of how the mechanics of the June 13, 2013
incident could have resulted in an injury. Without a detailed medical report describing the
employment incident in detail and noting how and why appellant sustained a right shoulder
condition as a result of the June 13, 2013 incident, Dr. Hines’ opinion is insufficient to meet
appellant’s burden of proof.8
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition. Dr. Hines did not do so.9 The Board notes
that appellant did not respond to OWCP’s November 25, 2013 request for further information.
The Board also notes that the September 11, 2013 report from Ms. Kresge does not
constitute medical evidence as nurse practitioners and physician’s assistants are not considered
physicians under FECA. Also, the October 21, 2013 right shoulder ultrasound study did not
address the cause of any diagnosed condition. Medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship. Appellant, therefore, did not meet her burden of proof to establish that she
sustained a traumatic injury on June 13, 2013.

6

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

7

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

8

Leslie C. Moore, supra note 6.

9

Id.

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish an employment-related injury on
June 13, 2013.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
New York, NY, Employer
__________________________________________

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

Docket No. 17-1582
Issued: November 16, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 14, 2017 appellant filed a timely appeal from an April 7, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed
from the most recent merit decision, dated August 12, 2015, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of the claim.2
ISSUE
The issue is whether OWCP properly determined that appellant’s January 17, 2017
request for reconsideration was untimely filed and failed to demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its April 7, 2017 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On June 26, 2015 appellant, then a 42-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that he sustained injuries to his left foot, lower back, and right leg
when, during an arrest, a patient assaulted him by running over him with a motorized wheelchair
on June 15, 2015. A supervisor noted that appellant stopped work on the date of injury.
Appellant submitted hospital discharge instructions dated June 26, 2015.
In a diagnostic report dated June 24, 2015, Dr. Hank Freeman, Board-certified in
diagnostic radiology, examined the results of radiographs of appellant’s lumbosacral spine and
found them to be unremarkable.
In a diagnostic report of the same date, Dr. Parinda Shah, Board certified in diagnostic
radiology, reviewed the results of a magnetic resonance imaging (MRI) scan of appellant’s
lumbar spine and found normal alignment with no evidence of acute fracture. Dr. Shah further
noted mild spondylosis at L5-S1.
In a report dated June 25, 2015, Dr. Angela Arbach, a Board-certified internist, examined
appellant and diagnosed acute traumatic radiculopathy with no evidence of cord compression.
By letter dated July 6, 2015, OWCP informed appellant of the factual and medical
deficiencies in his claim. It requested that he submit additional evidence and afforded 30 days
for submission of such evidence.
In a report dated June 24, 2015, Dr. Alyson Quigley, a Board-certified internist,
diagnosed acute traumatic radiculopathy with no evidence of cord compression. She noted that
appellant was involved in an altercation with a suspect, fell to the ground, and twisted to the right
as he fell. This report was also signed by Dr. Alexandra Lloyd-Smith, a Board-certified
neurologist.
Appellant submitted progress notes dating from June 26 through July 13, 2015, with
some reports signed by nurses and other reports signed by physicians. In a portion of the notes
authored by Dr. Deborah G. Feiner, a Board-certified internist, she related that appellant had
suffered an injury at work when he was assaulted by a patient. She noted that during an arrest,
appellant fell to the ground and twisted to the right as he fell. Appellant reported that he did not
feel pain at that time, but woke up the next morning with lumbar pain.
By letter dated July 10, 2015, Dr. Marjet Cordon, a specialist in internal medicine,
explained that appellant was injured at work on June 15, 2015 during an arrest, in which he
twisted/wrenched his back during a struggle. She diagnosed disc herniation and traumatic
musculoskeletal strain/pain.
By decision dated August 12, 2015, OWCP denied appellant’s claim, finding that he had
not submitted sufficient evidence to establish causal relationship between the incident of June 15,
2015 and his diagnosed conditions.

2

In a letter dated January 9, 2017, received by OWCP on January 17, 2017, appellant’s
congressman requested that appellant’s case be reconsidered. He stated that appellant twice filed
a request for reconsideration subsequent to the denial of his claim, but that OWCP claimed it had
not been received. As a military service member, appellant was deployed to Guantanamo Bay
from January 2 through November 28, 2016, and stated that this deployment prevented him from
sending paperwork within the deadlines. In an attached medical report dated June 26, 2015,
Dr. Arbach stated that appellant was involved with an altercation with a suspect, and that
appellant fell to the ground during the arrest, twisting to the right as he fell. She diagnosed a
small herniated disc. An attached incident report dated June 15, 2015 described the incident
involving a belligerent patient, which coincided with the description of the incident given by
appellant and his physicians.
Also attached was a letter dated August 18, 2015, wherein Dr. Quigley explained that
four days prior, appellant was involved in an altercation with an assailant who resisted arrest
resulting in his being thrown to the ground and twisting his back. Appellant underwent an MRI
scan which revealed desiccation of the disc at L5-S1. His injury and pain were unanimously
attributed to the injury he sustained in the altercation because: (1) the strain and nerve
inflammation were consistent with a sudden twisting injury to the back; (2) the time course for
development of inflammation in the area was consistent with the time since the incident; and
(3) he had no preexisting conditions to otherwise explain this injury.
By decision dated April 7, 2017, OWCP denied appellant’s request for reconsideration.
It found that his request was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.3 The Board has found that the imposition of the
one-year limitation does not constitute an abuse of the discretionary authority granted OWCP
under section 8128(a) of FECA.4
OWCP may not deny an application for review solely on the grounds that the application
was not timely filed. When an application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of
error.5 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for

3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

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merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review shows clear evidence of error on the part of OWCP.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.7 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.11
The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.12 In order to establish clear evidence of error, the evidence
submitted must not only be of sufficient probative value to create a conflict in medical opinion or
establish a clear procedural error, but must be of sufficient probative value to prima facie shift
the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.13
ANALYSIS
In its April 7, 2017 decision, OWCP properly determined that appellant filed an untimely
request for reconsideration. Its regulations provide that the one-year time limitation period for
requesting reconsideration begins on the date of the last merit decision and timeliness is
determined by the document receipt date of the request for reconsideration as indicated by the
“received date” in iFECS.14 In this instance, the iFECS record reflects that appellant’s request
for reconsideration, sent by appellant’s congressman on his behalf, was received on January 17,
6

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.5(a) (February 2016). OWCP’s procedure further provides, “The term ‘clear evidence of error’ is intended
to represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made a
mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage
certificate showing that the claimant had a dependent but the award was not paid at the augmented rate.”
7

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

8

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

13

See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

14

J.M., Docket No. 15-1586 (issued March 23, 2016) (the Board explained that according to OWCP procedures,
the received date is determined by the document received date in iFECS).

4

2017, which was more than one year after the August 12, 2015 decision. While the congressman
also noted that appellant was deployed to Guantanamo Bay from January 2 through
November 28, 2016, OWCP’s regulation at section 10.607(a) sets forth the time limitation period
of one year. Late filing may not be excused by extenuating circumstances, except if appellant
establishes through probative medical evidence that he was unable to communicate in any way,
and his testimony is necessary to obtain modification.15 The evidence of record does not
establish that appellant was unable to communicate while deployed to Guantanamo Bay.
Therefore, appellant must demonstrate clear evidence of error with regard to the decision of
August 12, 2015.
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP in its August 12, 2015 decision. He did not submit the type of positive, precise, and
explicit evidence manifesting on its face that an error was committed.
Appellant’s request for reconsideration included medical reports from Dr. Arbach and
Dr. Quigley. Dr. Arbach’s report dated June 26, 2015 recounted the circumstances of appellant’s
claimed injury, but did not offer an explicit opinion on causation. Dr. Quigley’s report did
contain an opinion on causation and some rationale for that conclusion, but the report was not
fully rationalized, containing an explanation of how the incident of August 12, 2015 caused his
diagnosed condition. As noted above, in order to establish clear evidence of error, the evidence
submitted must not only be of sufficient probative value to create a conflict in medical opinion or
establish a clear procedural error, but must be of sufficient probative value to prima facie shift
the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.16 While Dr. Quigley’s report was of some probative value
regarding the issue of causal relationship, it was not of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision. Even a well-rationalized report which, if timely filed, would
have created a conflict in medical evidence, is not sufficient to establish prior error in the prior
decision.17 Furthermore, clear evidence of error is intended to represent a difficult standard.18
As such, appellant has not submitted sufficient evidence to establish clear evidence of error on
the part of OWCP in its decision dated August 12, 2015.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

15

20 C.F.R. § 10.607(c). See also M.H., Docket No. 16-0983 (issued August 24, 2016).

16

Supra note 13.

17

See Federal (FECA) Procedure Manual, supra note 20 at 2.1602.5(a) December 2011); Dean D. Beets, 43
ECAB 1153 (1992).
18

Supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the April 7, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fife, WA, Employer
__________________________________________

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

Docket No. 11-1751
Issued: April 20, 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 July 26, 2011 appellant filed a timely appeal from a July 1, 2011 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 appellant forfeited compensation for the period January 10,
2006 to July 18, 2007 because he failed to report employment activity; (2) whether he received a
$54,454.82 overpayment of compensation for the period of the forfeiture; (3) whether appellant
was at fault in creating the overpayment; (4) whether OWCP properly found that it would deduct
$500.00 from continuing compensation payments to repay the overpayment; and (5) whether the
hearing representative properly denied appellant’s request to issue subpoenas.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on October 10, 2001 appellant, then a 50-year-old city carrier,
sustained a left shoulder dislocation, left shoulder strain, a consequential aggravation of a right
shoulder dislocation and loose bodies in the left shoulder in the performance of duty.2 Appellant
stopped work on October 10, 2001 and did not return.
In a letter dated October 13, 2006, Dennis Warriner authorized appellant to manage a
contract number DACA67-9-07-44 “to include cutting, removal and placing.”
In EN1032 forms signed April 10 and July 18, 2007, appellant indicated that he had not
worked for any employer for the past 15 months and was not self-employed. The EN1032 forms
advised that he must report all employment for which he received a salary, wages, income, sales
commissions, piecework or any payment of any kind, that he must report self-employment and
that he must report any such enterprise in which he worked and any volunteer work performed.
OWCP advised appellant on the EN1032 forms that he was obligated to immediately report any
employment to OWCP and that fraudulently concealing or failing to report income could subject
him to criminal prosecution.
On April 24, 2007 a special agent interviewed Mr. Warriner. The agent related:
“Regarding wood and woodcutting, Warriner stated that his son, Alex, has, in the
past, obtained some contracts at Fort Lewis to cut and remove trees. He stated
that he would bid on stacked and limbed trees; that Alex and [appellant] would
cut, stack, and haul the wood; that he (Warriner) would help Alex and [appellant]
during his lunch breaks and after work at the end of the day. The last contracts
were in August 2006 and October 2006. Warriner stated that [appellant] would
not participate in any lifting or work more than 45 minutes at a time in years but
would help where he could to include sharpening the chainsaw blades and
manning the log splitter. When told that we had a videotape contrary to that
statement; was shown a picture of him with [appellant] at the worksite; and asked
if he was sure he wanted to make a flat statement, Warriner did not answer. He
stated that he might have some of the contracts at home and would look for them.
Overall, he stated that [appellant] received about 12 cords of wood from the
cutting at Fort Lewis.”
In a May 9, 2007 memorandum of interview, a special agent with the employing
establishment described his interview with appellant on April 24, 2007. Appellant denied
working at Fort Lewis. He related that he went there to teach Alex Warriner tree clearing and
that he owned the wood splitter used to clear the tree. Appellant denied having anything to do
with the money paid by Fort Lewis for the tree clearing. The agent related:
“[Appellant] then stated the only reason his name was on any of the ‘paperwork,’
was because Warriner needed to leave the country and [appellant] had to turn in a
tool to the base which they used at the job site. [Appellant] stated again that
2

Appellant had a history of prior work-related injuries to his right and left shoulders and bilateral knees.

2

Warriner was teaching his son how to cut wood.
approximately $1,000 on the wood-cutting.”

He said Alex made

Appellant indicated that the job at Fort Lewis in October took three and a half days to
complete but that Mr. Warriner did all the work. The agent told him that he witnessed him
cutting wood, starting the splitter, using a chainsaw and throwing wood. Appellant replied that
he was taking medication. When the agent asked him why he had not told them about his
activities at the beginning of the interview, he related that he did not want his benefits to stop and
that he would lie to take care of his family. Appellant maintained that he received wood in
exchange for the work “because they used my equipment.”
In a surveillance summary dated July 16, 2007, an investigator with the employing
establishment witnessed appellant cutting wood on October 17, 2006 for three and a half hours
and on October 19, 2006 for around five hours. During this time he started and used a chainsaw
and a mechanical wood splitter.
In an August 21, 2007 report of investigation, the employing establishment maintained
that appellant had misrepresented his condition to remain on workers’ compensation. It further
asserted that he received compensation in kind for work at Fort Lewis.
By letter dated March 20, 2008, OWCP advised appellant of its preliminary
determination that he received an overpayment of $54,454.82 because he received unreported
earnings in October 2006. It further advised him of its preliminary determination that he was at
fault in the creation of the overpayment.
On April 7, 2008 appellant requested a prerecoupment hearing. He alleged that
Mr. Warriner offered him a small amount of wood left over from the sale. Appellant did not
believe taking the firewood constituted payment.
Following a preliminary review on August 28, 2008 a hearing representative vacated the
preliminary overpayment determination after finding that OWCP had not issued a separate
decision regarding the forfeiture.
By letter dated September 5, 2008, OWCP advised appellant that as it could not establish
a monetary value from his October 2006 activities, it would not pursue a finding that he received
an overpayment.3
By decision dated July 1, 2010, OWCP determined that appellant forfeited entitlement to
compensation from January 10, 2006 to July 18, 2007 in the amount of $54,454.82 as he failed to
report employment activities. It found that in October 2006 investigators witnessed him cutting
and loading firewood for eight hours and that Mr. Warriner authorized appellant to manage a
contract to include the removal and placing of wood. OWCP determined that he knowingly
failed to report employment activities on EN1032 forms.

3

In a statement dated October 14, 2008, Marjorie Pringle, one of appellant’s neighbors, asserted that she gave
some wood to him for his stove a few years ago.

3

In another letter dated July 1, 2010, OWCP advised appellant of its preliminary
determination that he received an overpayment of $54,454.82 as he failed to report earnings on
EN1032 forms signed April 10 and July 18, 2007. It further notified him of its preliminary
finding that he was at fault in creating the overpayment. OWCP requested that appellant
complete the enclosed overpayment recovery questionnaire and submit supporting financial
documents. Additionally, it informed him that, within 30 days of the date of the letter, he could
request a telephone conference, a final decision based on the written evidence or a
prerecoupment hearing.
On July 23, 2010 appellant requested a prerecoupment hearing and an oral hearing on the
forfeiture decision. He further requested subpoena power. On August 17, 2010 appellant
requested subpoenas for four individuals as well as a copy of all video and audio recordings and
investigative records.4
By letter dated October 18, 2010, the hearing representative denied appellant’s request to
subpoena various individuals as he did not explain why it was the best method to obtain evidence
or how the testimony was directly relevant to the issues. She informed him that he could ask the
individuals to provide written testimony or to testify at the hearing. The hearing representative
advised appellant that he could appeal the denial of his subpoena request after her decision, if it
was not favorable.
In a statement dated November 21, 2010, Mr. Warriner related that he purchased wood
from Fort Lewis following a public bid. He stated:
“Often the quantity of wood I purchased exceeds my immediate need and I
offered some to [appellant] as a way of helping a friend, that burns wood to heat
his house. At no time did I hire [him] nor did he enter into a contract with Fort
Lewis. At no time did I charge him for the wood, nor did he capitalize in any way
on the wood contract purchase. I did provide [appellant] with a copy of the
contract and gave him permission to cut wood at the wood deck site in my
absence. I provided his name and written permission to access the wood and cut
the wood for his use so Fort Lewis Officials knew he had my authorization as the
contract owner. At no time was [appellant] under any obligation to remove wood
and he always used his own equipment.”
In a telephone call dated December 10, 2010, appellant related that he was upset that the
hearing would be by telephone rather than in person. At the telephone hearing, held on
December 30, 2010, he asserted that Mr. Warriner used sealed bids to buy wood from
Fort Lewis. Appellant denied having anything to do with the bids and denied working for
Mr. Warriner who offered him leftover wood which he took to use as firewood. He indicated
that he overmedicated to get the free firewood. Appellant did not consider getting free firewood
work. He related that his name was on the paperwork so that he could get access to the wood.
Appellant had no responsibilities for the project and considered it a chore akin to cutting grass.
He denied any exchange of firewood for the use of his equipment. Appellant collected the wood
4

OWCP provided appellant with the investigative records and surveillance video.

4

over two half days. He got two truckloads of wood. Appellant did not make any money off the
wood collection.
In a January 21, 2011 overpayment recovery questionnaire, appellant listed monthly
income of $5,831.00. He provided expenses of $1,286.06 for housing, $1,200.00 for food,
$300.00 for clothing, $550.00 for utilities and $600.00 in other expenses. Appellant also listed
credit card payments of $200.00, $400.00, $206.00 and $58.00, for total expenses of $4,800.06.
He further noted that his wife had $9,000.00 in a savings account.
By decision dated June 1, 2011, the hearing representative affirmed the July 1, 2010
forfeiture decision and finalized the finding that appellant received an overpayment of
$54,454.82 based on his forfeiture of compensation from January 10, 2006 to July 18, 2007. She
further found that he was at fault in creating the overpayment and that OWCP should recover the
overpayment by deducting $500.00 from his continuing compensation payments. The hearing
representative determined that based on his current OWCP compensation benefits, his monthly
income was $5,856.90 and his monthly expenses were $4,800.06, and that his monthly income
thus “exceeds his expenses by $1,000.00.” She also noted that his wife had $9,000.00 in savings.
On appeal appellant argues that he did not work for Mr. Warriner and was not selfemployed. He asserted that he picked up wood worth less than $200.00 which he did not sell but
instead used himself. Appellant related that if an individual had offered him a washer or bed if
he went and got it he would do that and not consider it employment or reportable to OWCP.
Mr. Warriner kept the wood splitter on his property and could use it any time. Appellant noted
that he asked for an oral hearing but only received a telephone hearing. He also maintained that
he had the right to subpoena witnesses.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA provides that an employee who “fails to make an affidavit or
report when required or knowingly omits or understates any part of his earnings, forfeits his right
to compensation with respect to any period for which the affidavit or report was required.5
The Board has held that it is not enough merely to establish that there were unreported
earnings or unemployment. Appellant can be subjected to the forfeiture provisions of 5 U.S.C.
§ 8106(b) only if he “knowingly” failed to report employment or earnings.6 The term
“knowingly” as defined in OWCP’s implementing regulations, means “with knowledge,
consciously, willfully or intentionally.”7

5

5 U.S.C. § 8106(b).

6

Barbara L. Kanter, 46 ECAB 165 (1994).

7

20 C.F.R. § 10.5(n).

5

Section 10.5(g) of OWCP’s regulations defines earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.8”
ANALYSIS -- ISSUE 1
OWCP found that appellant forfeited his right to compensation from January 10, 2006 to
July 18, 2007 because he knowingly failed to report employment activities on EN1032 forms
covering this period. Appellant signed EN1032 forms on April 10 and July 18, 2007 covering
the period January 10 through July 18, 2007. On the forms, he indicated that he was not
employed and did not engage in self-employment. Appellant further denied performing
volunteer work.
Investigators with the employing establishment, however, conducted
surveillance and witnessed appellant cutting wood for three and a half hours on October 17, 2006
and for approximately five hours on October 19, 2006. For part of this time he started and used a
chainsaw and mechanical wood splitter. In an April 24, 2007 interview, Mr. Warriner related
that his son Alex had a contract at Fort Lewis to cut and remove trees. Appellant helped him cut,
stack and haul the wood and was authorized on the contract to access the wood. Mr. Warriner
related that appellant “received about 12 cords of wood from the cutting at Fort Lewis.” In
another April 24, 2007 interview, appellant indicated that he was teaching Alex Warriner tree
clearing. He did not receive any money from Fort Lewis and was only on the paperwork so that
he could get to the work site. Appellant stated that he obtained wood in exchange for the work
“because they used my equipment.” He further related that he did not initially tell the
investigators about the activity because he did not want it to affect his benefits.
The Board finds that appellant failed to report earnings from employment. OWCP’s
regulations define earnings to include a reasonable estimate of the cost to have someone else
perform the duties of an individual who accepts no remuneration. Neither lack of profits nor the
characterization of the duties as a hobby removes an unremunerated individual’s responsibility to
report the estimated cost to have someone else perform his or her duties.9 Appellant clearly
performed duties that Mr. Warriner would have had to pay an individual to perform when he
helped his son cut and haul wood. Further, he received remuneration in the form of cords of
wood. In a statement dated November 21, 2010, Mr. Warriner asserted that he offered the wood
to appellant as a friend and that he had not hired or paid him. At the hearing appellant denied
working for Mr. Warriner and indicated that he only took the leftover wood to use in his stove.
8

20 C.F.R. § 10.5(g); see also J.S., 58 ECAB 515 (2007).

9

Id.

6

However, the initial statement by Mr. Warriner to investigators that appellant took 12 cords of
wood and appellant’s initial statement that he received the wood in exchange for the use of his
equipment is more credible as it was more contemporaneous and made to law enforcement
personnel.10
Appellant can be subject to the forfeiture provision of section 8106(b) only if he
knowingly failed to report a reasonable estimate of the cost to have someone else perform the
duties he performed. OWCP has the burden of proof to establish that a claimant did, either with
knowledge, consciously, willfully, or intentionally, fail to report earnings from employment.11
Appellant completed EN1032 forms which advised him that he must report both all employment
and all earnings from employment and self-employment. The EN1032 forms also required him
to report all volunteer work. The EN1032 forms clearly stated that he could be subject to
criminal prosecution for false or evasive answers or omissions. The factual circumstances of
record, including appellant’s signing of strongly worded certification clauses on the EN1032
forms, provide persuasive evidence that he knowingly understated his earnings and employment
OWCP, therefore, properly found that he forfeited his entitlement to
information.12
compensation from January 10, 2006 to July 18, 2007.
On appeal appellant argues that Mr. Warriner gave him the wood as a friend and that he
went to pick up the wood like he would go pick up an offered washer or bed. However, he was
authorized by Mr. Warriner as a party on the contract to cut and haul wood and his actions in
assisting Alex Warriner in starting the splitter and using a chainsaw go beyond picking up free
wood and constitute employment activities.
LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of OWCP’s implementing regulations provide as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, [OWCP] shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C.
[§] 8129 [recovery of overpayments] and other relevant statues.”13

10

See P.M., Docket No. 07-2169 (issued March 2, 2009).

11

20 C.F.R. § 10.5(n).

12

See generally Robert C. Gilliam, 50 ECAB 334 (1998).

13

20 C.F.R. § 10.529.

7

ANALYSIS -- ISSUE 2
OWCP’s regulations provide that it may declare an overpayment of compensation for the
period of a given forfeiture of compensation. If a claimant has any earnings during a period
covered by an EN1032 form which he knowingly fails to report, he is not entitled to any
compensation for any portion of the period covered by the report, even though he or she may not
have had earnings during a portion of that period.14 OWCP paid appellant compensation in the
amount of $54,454.82 for the period January 10, 2006 to July 18, 2007. It properly found that
appellant forfeited his entitlement to compensation during this time because he failed to report
earnings from employment on EN1032 forms; consequently, there exists an overpayment of
compensation in the amount of $54,454.82
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of FECA15 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of OWCP’s implementing regulations16
provides that in determining whether a claimant is at fault, it will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be incorrect.”
ANALYSIS -- ISSUE 3
OWCP properly determined that appellant was at fault in the creation of the overpayment
because he failed to provide information which he knew or should have known to be material on
EN1032 forms covering the period January 10, 2006 to July 18, 2007. He had earnings during
this period as defined by section 10.5(g) of OWCP’s regulations from work cutting and hauling
wood and receiving cords of wood. Appellant did not report employment and earnings on
EN1032 forms covering that period; thus, he failed to furnish material information to OWCP.
He signed certification clauses on EN1032 forms which advised him in explicit language that he
might be subject to civil, administrative or criminal penalties if he knowingly made a false
statement or misrepresentation or concealed a fact to obtain compensation. Consequently, by
signing the form, appellant is deemed to have acknowledged his duty to fill out the form
properly, including the duty to report any employment or self-employment activities and
14

Louise P. McKenna, Jr., 46 ECAB 328 (1994).

15

5 U.S.C. § 8129(b).

16

20 C.F.R. § 10.433.

8

income.17 Appellant, therefore, failed to furnish information which he knew or should have
known to be material to OWCP. As he is not without fault in creating the overpayment, it is not
subject to waiver.
On appeal appellant asserts that he was entitled to an oral hearing rather than a telephone
conference. As the discretion of the hearing representative, however, an oral hearing may be
conducted by telephone or teleconference.18 The form of the hearing should be no impediment
to any witness willing to give testimony.
LEGAL PRECEDENT -- ISSUE 4
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.19 Section
10.441(a) of the regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [OWCP] the amount of the overpayment
as soon as the error is discovered or his or her attention is called to same. If no
refund is made, [OWCP] shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”20
ANALYSIS -- ISSUE 4
On the overpayment recovery questionnaire, appellant provided monthly income of
$5,831.00 and monthly expenses of $4,800.06. The hearing representative found that he could
repay the overpayment at a rate of $500.00 per month as his monthly income exceeded his
expenses by $1,000.00. Based on the evidence, OWCP gave due regard to the relevant factors
noted above and did not abuse its discretion in setting the rate of recovery.21 The Board finds
that it properly determined that the overpayment could be recovered by deducting $500.00 from
appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 5
Section 8126 of FECA provides that the Secretary of Labor, on any matter within her
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.22 The implementing regulations provide that a claimant
17

See P.M., supra note 10.

18

Id. at §§ 10.439, 10.615.

19

Lorenzo Rodriguez, 51 ECAB 295 (2000).

20

20 C.F.R. § 10.441(a).

21

See Howard R. Nahikian, 53 ECAB 406 (2002).

22

5 U.S.C. § 8126(1).

9

may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained
by other means and for witnesses only where oral testimony is the best way to ascertain the
facts.23 In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.24 Section
10.619(a)(1) of the implementing regulations provide that a claimant may request a subpoena
only as a part of the hearings process and no subpoena will be issued under any other part of the
claims process.
To request a subpoena, the requestor must submit the request in writing and send it to the
hearing representative as early as possible, but no later than 60 days (as evidenced by postmark,
electronic marker or other objective date mark) after the date of the original hearing request.25
OWCP’s hearing representative retains discretion on whether to issue a subpoena. The function
of the Board on appeal is to determine whether there has been an abuse of discretion.26 Abuse of
discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of
judgment or actions taken which are clearly contrary to logic and probable deduction from
established facts.27
ANALYSIS -- ISSUE 5
On July 23, 2010 appellant requested OWCP issue subpoena to four individuals and a
copy of all video and audio recordings and investigative records.28 The hearing representative
denied his request to subpoena the individuals on October 18, 2010 after finding that he did not
show why that was the best method of obtaining evidence.
On appeal appellant argues that the hearing representative erred in denying his subpoena
request. Abuse of discretion is generally shown through proof of manifest error, a clearly
unreasonable exercise of judgment or actions taken which are clearly contrary to logic and
probable deduction from established facts.29 It is not enough to show that the evidence could be
construed so as to produce a contrary factual conclusion.30 As appellant has not shown that the

23

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

24

Id.

25

20 C.F.R. § 10.619(a)(1).

26

See Gregorio E. Conde, supra note 23.

27

Claudio Vazquez, 52 ECAB 496 (2001).

28

As noted, OWCP provided a copy of the investigative report and video surveillance tape on September 7, 2010.

29

See Claudio Vazquez, supra note 27.

30

See R.C., 58 ECAB 238 (2006); Tina D. Francis, 56 ECAB 180 (2004).

10

testimony from the individuals in question could not be obtained by other means, the Board finds
no abuse of discretion in the hearing representative’s denial of his request for subpoenas.31
CONCLUSION
The Board finds appellant forfeited compensation for the period January 10, 2006 to
July 18, 2007 because he failed to report employment activity. The Board further finds that he
received a $54,454.82 overpayment of compensation for the period of the forfeiture and that he
was at fault in creating the overpayment. The Board additionally finds that OWCP properly
found that it would deduct $500.00 from continuing compensation as repayment of the
overpayment. The Board also finds that the hearing representative properly denied appellant’s
request to issue subpoenas.
ORDER
IT IS HEREBY ORDERED THAT the July 1, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 20, 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

31

Id.

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
TENNESEE VALLEY AUTHORITY, MUSCLE
SHOALS POWER SERVICE SHOPS,
Chattanooga, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1666
Issued: December 12, 2008

Case Submitted on the Record

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

JURISDICTION
On May 27, 2008 appellant timely filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 12, 2008 denying his claim for employmentrelated hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this schedule award decision.
ISSUE
The issue is whether appellant has established a ratable hearing loss causally related to
his federal employment.
FACTUAL HISTORY
Appellant, a 77-year-old carpenter foreman, filed an occupational disease claim with the
Office on November 21, 2007 alleging that his hearing had worsened over the years. He
explained that he worked for the Muscle Shoals Service Shop for twenty (20) years, August 1957
until August 1988 running radial arm saws for eight hours a day. In addition to the saws,
appellant stated that he was exposed to loud noises from air pumps and sledge hammers. He

further stated that, at night, after he went home, he could still hear the saw motors humming in
his ears. Appellant noted that Tennessee Valley Authority did not furnish ear protection until
approximately five years before he retired in 1988. He submitted copies of audiogram test
conducted between 1961 and 1985.
On March 28, 2008 the Office referred appellant to Dr. Howard M. Goldberg, a Boardcertified otolaryngologist, for a second opinion to determine the cause and extent of his claimed
hearing loss. In his May 1, 2008 report, Dr. Goldberg noted appellant’s exposure to loud noise
during the course of his federal employment. An audiogram reflected testing at 500, 1,000,
2,000 and 3,000 cycles per second (cps) levels and showed the following decibel losses: 25, 15,
10 and 20 in the right ear and 25, 15, 5 and 20 in the left ear. Dr. Goldberg concluded that the
examination showed normal hearing and that there was no hearing impairment due to noise
exposure during federal employment.
On May 9, 2008 the district medical adviser reviewed Dr. Goldberg’s May 1, 2008 report
and concluded that appellant had a bilateral sensorineural hearing loss, but that it was not ratable
for purposes of a schedule award.
By letter dated May 12, 2008, the Office accepted appellant’s claim for bilateral
sensorineural hearing loss but found that based upon the April 29, 2008 audiogram and the
medical opinion of a licensed otolaryngologist, appellant’s hearing loss was not severe enough to
be considered ratable. As such, appellant was not entitled to a schedule award under the Federal
Employees’ Compensation Act.
LEGAL PRECEDENT
Section 8107 of the 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 American Medical Association, Guides to the
Evaluation of Permanent Impairment (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.,
1

The Act provides that, for complete or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks of compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks of
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).

2

Guides point 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
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
ANALYSIS
An Office medical adviser applied the Office’s standardized procedures to the April 29,
2008 audiogram obtained by Dr. Goldberg. 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 25, 15, 10 and 20 respectively. These totaled 70 decibels which, when divided by
4, obtained an average hearing loss of 17.50 decibels. The average of 17.50 decibels, when
reduced by 25 decibels (the first 25 decibels are discounted as discussed above), equals 0
decibels, which, when multiplied by the established factor of 1.5 totals a 0 percent hearing loss in
the right ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz
revealed decibel losses of 25, 15, 5 and 20 respectively. These totaled 65, which when divided
by 4, obtains an average hearing loss of 16.25 decibels. The average of 16.25 decibels, reduced
by 25 decibels (the first 25 decibels were discounted as discussed above), equals 0 decibels,
which, when multiplied by the established factor of 1.5 totals a 0 percent hearing loss in the left
ear.
While the evidence of record establishes that appellant has mild sensorineural hearing
loss causally related to his federal employment, Dr. Goldberg’s opinion clearly states that review
of these audiograms showed that the hearing threshold levels were still within the confines of
normal hearing. Therefore, the Office properly denied the claim for compensation based upon
the medical evidence in the record.
CONCLUSION
The weight of the medical evidence does not establish ratable hearing loss causally
related to noise exposure in federal employment.

5

Id.

6

Id.

7

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 12, 2008 is affirmed.
Issued: December 12, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4