United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF THE TREASURY, U.S.
CUSTOMS SERVICE, Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-2074
Issued: May 4, 2010

Case Submitted on the Record

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

JURISDICTION
On August 11, 2009 appellant filed a timely appeal from a February 12, 2009 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has more than a seven percent binaural loss of hearing, for
which he received a schedule award.
On appeal, appellant contends that he is entitled to a greater award for increased hearing
loss and significant tinnitus.
FACTUAL HISTORY
This is the second time this case has been on appeal to the Board. In a September 16,
2008 decision, the Board set aside the Office’s February 22, 2008 decision denying appellant’s
request for reconsideration of its December 14, 1994 decision as untimely and failing to establish

clear evidence of error. The Board found that the Office had improperly addressed appellant’s
request for an increased schedule award as a request for reconsideration.1
On October 5, 1994 the Office accepted appellant’s occupational disease claim for
bilateral sensorineural hearing loss. By decision dated December 14, 1994, it denied his request
for a schedule award on the grounds that his hearing loss was not severe enough to be considered
ratable.
On June 22, 2006 appellant asked the Office to reopen his case, asserting that his hearing
loss and constant ringing in his ears had progressively worsened. He submitted a February 6,
2008 audiogram from Dr. Charles J. Ballay, II, a Board-certified otolaryngologist, who
diagnosed tinnitus and long-standing hearing loss. Appellant also submitted a February 10, 2008
notice of recurrence alleging increased hearing loss and constant ringing in both ears.
In a decision dated February 22, 2008, the Office denied appellant’s request for
reconsideration as untimely and failing to establish clear evidence of error. In its September 16,
2008 decision, the Board set aside the Office’s February 22, 2008 decision and remanded the
case for proper consideration of appellant’s request for an increased schedule award.
On remand, the Office referred appellant to Dr. William C. Smith, a Board-certified
otolaryngologist, for an examination and an opinion as to the extent of his hearing loss secondary
to noise exposure during his federal employment. In a report dated October 23, 2008, Dr. Smith
noted that a current audiogram showed a worsening of appellant’s hearing since 1994. He
diagnosed bilateral, high frequency sensorineural hearing loss due to appellant’s federal
employment. Dr. Smith recommended a trial of hearing aids, as the severe hearing loss affected
appellant’s daily activities.
Testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per
second (cps) revealed decibel losses of 15, 20, 25 and 55, respectively. Testing for the left ear at
frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 20, 15, 20 and 75,
respectively. Dr. Smith applied the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides) to the October 23, 2008 audiogram
results. When added together, then divided by four, results for the right ear reflected an average
loss of 29 decibels (115/4 = 28.75). Subtracting the 25 decibel fence and multiplying the
remainder (4) by 1.5 reflected a hearing loss of six percent. With regard to the left ear, when
added together, then divided by four, results for the right ear reflected an average loss of 33
decibels (130/4 = 32.5). Subtracting the 25 decibel fence and multiplying the remainder (8) by
1.5 yielded a 12 percent hearing loss in appellant’s left ear. To determine binaural hearing loss,
the six percent loss in the right ear was multiplied by five. The product, 30, was then added to
the 12 percent hearing loss in the left ear, for a total of 42, which was then divided by 6, for a
resulting binaural hearing loss of 7 percent. Dr. Smith indicated that appellant should receive an
additional five percent impairment rating for tinnitus, which impacts his ability to perform
activities of daily life. He thus concluded that appellant had a 12 percent binaural hearing loss (7
percent + 5 percent for tinnitus). Dr. Smith opined that the date of maximum medical
improvement (MMI) was October 23, 2008.
1

Docket No. 08-1228 (issued September 16, 2008).

2

In a November 21, 2008 report, the district medical adviser (DMA) opined that appellant
had a 6.6 percent binaural hearing loss under the fifth edition of the A.M.A., Guides, based on
the results of the October 23, 2008 audiogram and Dr. Smith’s second opinion report. He
calculated the award by adding the losses at the frequencies of 500, 1,000, 2,000 and 3,000 cps
and then averaging these losses and deducting the fence of 25 decibels. The remaining amount
was multiplied by 1.5 to arrive at the percentage of monaural hearing loss. For decibels in the
left ear of 20, 15, 20 and 75, the above formula resulted in 11.25 percent monaural loss, and for
decibel levels recorded in the right ear of 15, 20, 25 and 55, the formula resulted in 5.625 percent
monaural loss. The binaural loss was determined by calculating the loss in each ear using the
formula for monaural loss, the lesser loss, in this case 5.625 was multiplied by five, equaling
28.125, and then added to the greater loss, 11.25, for a sum of 39.375. The total was divided by
six to arrive at a binaural hearing loss of 6.5625, rounded up to 6.6 percent. The DMA stated
that hearing aids were authorized and that the date of MMI was October 23, 2008.
On December 2, 2008 the Office informed appellant that his claim had been accepted for
binaural hearing loss and advised him to submit a CA-7 form requesting a schedule award. On
December 2, 2008 appellant requested a schedule award.
By decision dated February 12, 2009, the Office granted appellant a schedule award for a
seven percent binaural hearing loss. The award was for the period October 23, 2008 to
January 28, 2009. The Office found that the date of MMI was October 23, 2008.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.2 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.3 Effective February 1, 2001,
schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).4
Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are
added up and averaged.5 Then, the fence of 25 decibels is deducted because, as the A.M.A.,
Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.6 The remaining amount is multiplied by a factor of
2

The Act provides that, for complete, or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’
compensation. 5 U.S.C. § 8107(c)(13) (2000).
3

20 C.F.R. § 10.404.

4

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

5

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

6

Id.

3

1.5 to arrive at the percentage of monaural hearing loss.7 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.8
Proceedings under the Act are not adversarial in nature, and the Office is not a
disinterested arbiter. While appellant has the burden to establish entitlement to compensation,
the Office shares responsibility in the development of the evidence.9 Once the Office has begun
an investigation of a claim, it must pursue the evidence as far as reasonably possible10 and
develop the medical evidence in a proper manner.11
ANALYSIS
The Board finds that this case is not in posture for a decision. The case will be remanded
to the Office for clarification from the DMA or and further development of the medical evidence
as necessary to determine appellant’s entitlement to a schedule award.
In its September 16, 2008 decision, the Board remanded the case to the Office for
consideration of appellant’s request for a schedule award. On remand, the Office referred
appellant to Dr. Smith for an opinion as to whether he had a permanent hearing loss and, if so, to
what degree. Dr. Smith diagnosed bilateral, high frequency sensorineural hearing loss due to
appellant’s federal employment and recommended a trial of hearing aids. He applied the fifth
edition of the A.M.A., Guides to the October 23, 2008 audiogram results. Dr. Smith calculated
appellant’s schedule award by adding the losses at the frequencies of 500, 1,000, 2,000 and 3,000
cps and then averaging these losses and deducting the fence of 25 decibels. The remaining
amount was multiplied by 1.5 to arrive at the percentage of monaural hearing loss. Pursuant to
this formula, Dr. Smith concluded that appellant had a 6 percent monaural hearing loss in the
right ear, and a 12 percent loss in the left ear. The binaural loss was determined by adding the
product of the lesser loss, 6, times 5 (5 x 6 = 30) to the greater loss, 12. The total, 42, was
divided by 6 to arrive at a binaural hearing loss of 7 percent. Dr. Smith opined that appellant
should receive an additional five percent impairment rating for tinnitus, which impacts his ability
to perform activities of daily life. He thus concluded that appellant had a 12 percent binaural
hearing loss (7 percent + 5 percent for tinnitus).
The Office properly routed Dr. Smith’s report to the DMA, who opined that appellant had
a 6.6 percent binaural hearing loss under the 5th edition of the A.M.A., Guides, based on the
results of the October 23, 2008 audiogram and Dr. Smith’s second opinion report. Its
February 12, 2009 decision was based largely on the DMA’s recommendation. The DMA’s
7

Id.

8

Id.

9

John J. Carlone, 41 ECAB 354, 359-60 (1989).

10

Edward Schoening, 41 ECAB 277, 282 (1989).

11

Melvin James, 55 ECAB 406 (2004).

4

report, however, is incomplete and insufficiently rationalized to provide a basis for a schedule
award.
The Board notes that the DMA’s calculations and application of the A.M.A., Guides
produced results essentially consistent with Dr. Smith’s rating with regard to monaural and
binaural hearing loss.12 Applying the A.M.A., Guides to Dr. Smith’s results, he concluded that
appellant had an 11.25 percent monaural loss in the left ear and a 5.625 percent monaural loss in
the right ear. The DMA then determined that the binaural loss was 6.6 percent by applying the
appropriate formula. He stated that hearing aids were authorized and that the date of MMI was
October 23, 2008. The DMA did not, however, explain why he did not provide an award for
tinnitus, as recommended by Dr. Smith. The A.M.A., Guides allows for compensation of up to
five percent for tinnitus in the presence of measurable hearing loss if the tinnitus impacts the
ability to perform activities of daily living.13 In this case, Dr. Smith stated that appellant’s
tinnitus does impact his ability to perform activities of daily living. Office procedures provide
that, after obtaining all necessary medical evidence, the file should be routed to the 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.14 The DMA failed to provide such rationale. As such, the
Board cannot make a proper determination as to the extent of appellant’s permanent impairment.
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While the claimant has the responsibility to establish entitlement to compensation, the
Office shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.16 Accordingly, once the Office undertakes to develop the medical evidence
further, it has the responsibility to do so in the proper manner.17 The case will be remanded to
the Office for clarification by the DMA and further development of the medical evidence, as
necessary.
15

CONCLUSION
The Board finds that this case is not in posture for decision.

12

The Board notes that, while the DMA’s calculations were not rounded, as were those of Dr. Smith, the effect of
rounding did not substantively affect the recommended schedule award. The DMA concluded that appellant had a
6.6 percent binaural hearing loss, which was rounded up by the Office to 7 percent.
13

See A.M.A., Guides 246; S.G., 58 ECAB 383 (2007); Leslie M. Mahin, 55 ECAB 311 (2004).

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
15

Vanessa Young, 55 ECAB 575 (2004).

16

Richard E. Simpson, 55 ECAB 490 (2004).

17

Melvin James, 55 ECAB 406 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the February 12, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
of the medical evidence and a de novo decision.
Issued: May 4, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, RECORDS
MANAGEMENT DIVISION, Winchester, VA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)
)

Docket No. 12-1543
Issued: February 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
On July 9, 2012 appellant filed a timely appeal from a nonmerit decision of the Office of
Workers’ Compensation Programs (OWCP) dated May 7, 2012 that denied her request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error.1 The Board docketed the appeal as No. 12-1543.
The Board has reviewed the record on appeal and finds that the case must be remanded to
OWCP for application of the appropriate standard of review because appellant’s request for
reconsideration was timely submitted.
The most recent merit decision of OWCP was issued on February 7, 2011. As shown by
a date stamp on a letter requesting reconsideration dated February 6, 2012, appellant submitted
1

On July 15, 2010 appellant, a supervisory research analyst, filed a claim alleging post-traumatic stress disorder
(PTSD), cervical disc syndrome, and facial pain syndrome caused by a May 25, 2010 incident when a security
officer asked her to check a women’s restroom at the employing establishment to see if there was any obvious fecal
matter; appellant complied and observed feces on a toilet seat. In a September 15, 2010 decision, OWCP found the
claimed incident established but denied the claim. In a February 7, 2011 decision, an OWCP hearing representative
denied the claim because the medical evidence was insufficient to establish that appellant sustained an emotional or
physical condition due to the compensable work factor.

her reconsideration request to OWCP on February 7, 2012. She also submitted new evidence,
including medical evidence from two physicians. By decision dated May 7, 2012, OWCP denied
appellant’s reconsideration request on the grounds that it was untimely filed and failed to
establish clear evidence of error.
OWCP’s regulations in effect at the time that OWCP issued the February 7, 2011
decision provided:
“An application for reconsideration must be sent within one year of the date of the
OWCP decision for which review is sought. If submitted by mail, the application
will be deemed timely if postmarked by the U.S. Postal Service within the time
period allowed. If there is no such postmark, or it is not legible, other evidence
such as (but not limited to) certified mail receipts, certificate of service, and
affidavits, may be used to establish the mailing date.”2
The Board has long held that the one-year time limitation begins to run on the date
following the date of the original OWCP decision.3 Thus, in the instant case, appellant’s
reconsideration request would be considered timely if submitted on February 7, 2012. On appeal
she indicated that she hand-delivered her reconsideration request to OWCP, and as shown by the
date-stamp on her reconsideration letter dated February 6, 2012, it was received by OWCP on
February 7, 2012.
As appellant’s reconsideration request dated February 6, 2012 and stamped received on
February 7, 2012 was made within one year of the Board’s merit decision dated February 7,
2011, the Board concludes that the request was timely. In its May 7, 2012 decision denying
appellant’s reconsideration request, OWCP applied the clear evidence of error legal standard.
This standard is the appropriate standard only for cases in which a reconsideration request is
untimely filed.4 Since OWCP erroneously reviewed the evidence submitted by appellant in
support of her reconsideration request under the clear evidence of error standard, the Board will
remand the case to OWCP for application of the standard for reviewing a timely request for
reconsideration as set forth at 20 C.F.R. § 10.606(b)(2).

2

20 C.F.R. § 10.607 (1999). Current OWCP regulations provide that application for reconsideration must be
received within one year of the date of OWCP decision for which review is sought. 20 C.F.R. § 10.607(a) (2012).
3

Darletha Coleman, 55 ECAB 143 (2003).

4

See Donna M. Campbell, 55 ECAB 241 (2004).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 7, 2012 is set aside and the case is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: February 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF LABOR, MINE SAFETY & )
HEALTH ADMINISTRATION, Warrendale, PA, )
Employer
)
__________________________________________ )
A.F., Appellant

Appearances:
Sigmund Kozierachi, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1078
Issued: August 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 9, 2014 appellant, through his representative, filed a timely appeal of a
March 20, 2014 nonmerit decision of an Office of Workers’ Compensation Programs (OWCP)
and its hearing representative who found that he abandoned his hearing request.1 As more than
180 days elapsed from the date of OWCP’s last merit decision on August 15, 2013, to the filing
of this appeal on April 9, 2014, pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board only has jurisdiction over the nonmerit decision.

1

On appeal, appellant and his representative contend that appellant did not attend the hearing because he did not
receive notice of a scheduled oral hearing. As the explanation was not before OWCP at the time it issued its
March 20, 2014 decision, the Board is precluded from reviewing it for the first time on appeal. See 20 C.F.R.
§ 501.2(c)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant abandoned his request for
a hearing.
FACTUAL HISTORY
Appellant, then a 59-year-old mine safety and health inspector, filed an occupational
disease claim (Form CA-2) alleging that he sustained an emotional condition due to factors of his
federal employment.
By decision dated August 15, 2013, OWCP denied appellant’s claim finding that the
evidence did not establish an emotional condition arising from a compensable factor of
employment.
On August 27, 2013 appellant requested an oral hearing before an OWCP hearing
representative.3
In a January 17, 2014 notice, OWCP’s Branch of Hearings and Review scheduled an oral
hearing for 9:00 a.m. Eastern time on March 3, 2014. It provided appellant with a toll-free
number and passcode for the telephone hearing. OWCP advised him that postponement of the
hearing would only be permitted upon receipt of documentation showing his nonelective
hospitalization or that the death of a spouse, parent or child prevented his attendance. The notice
was mailed to his address of record.
On March 3, 2014 appellant failed to participate in the telephone hearing.
By decision dated March 20, 2014, an OWCP hearing representative found that appellant
failed to appear at the hearing and had abandoned his request. OWCP found that there was no
evidence that he contacted OWCP prior to or subsequent to the scheduled hearing.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.4 Unless
otherwise directed in writing by the claims examiner, an OWCP hearing representative will mail
a notice of the time and place of the hearing to the claimant and any representative at least 30
days before the scheduled date.5 OWCP has the burden of proving that it mailed notice of a

3

The record contains an August 28, 2013 e-mail from appellant to OWCP confirming his request for an oral
hearing. The e-mail was copied to Sigmund Kozierachi, appellant’s representative, but the record does not
document that he was authorized to represent appellant before OWCP at that time.
4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

5

20 C.F.R. § 10.617(b).

2

scheduled hearing to a claimant.6 Section 10.622(f) of OWCP regulations provide that a
claimant who fails to appear at a scheduled hearing may request in writing within 10 days after
the date set for the hearing that another hearing be scheduled.7 Where good cause for failure to
appear is shown, another hearing will be scheduled and conducted by teleconference. The failure
of the claimant to request another hearing within 10 days or the failure of the claimant to appear
at the second scheduled hearing without good cause shown shall constitute abandonment of the
request for a hearing. Where good cause is shown for failure to appear at the second scheduled
hearing, review of the matter will proceed as a review of the written record.8 Where it has been
determined that a claimant has abandoned his or her right to a hearing, OWCP will issue a formal
decision finding that the claimant has abandoned his or her request for a hearing.9
ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned his request for
a hearing.
The record establishes that, on January 17, 2014, in response to appellant’s timely request
for an oral hearing, the Branch of Hearings and Review mailed an appropriate notice to him of
the scheduled hearing to be held on March 3, 2014 at 9:00 a.m. Eastern time by telephone. The
hearing notice was properly mailed to his last known address of record. As the Board has held,
in the absence of evidence to the contrary, a letter properly addressed and mailed in the due
course of business is presumed to have arrived at the mailing address in due course. This is
known as the mailbox rule.10 The Board finds that the notice was sent more than 30 days prior to
the scheduled hearing date of March 3, 2014. The record establishes that appellant did not
appear at the appointed time. Further, appellant did not request a postponement of the hearing
prior to March 3, 2014 or explain his failure to appear at the hearing within 10 days of the
scheduled hearing. Thus, the Board finds that he abandoned his request for a hearing.
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned his request for
a hearing.

6

See M.B., Docket No. 10-1077 (issued March 17, 2011).

7

20 C.F.R. § 10.622(f).

8

Id.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
10

See e.g., Kenneth E. Harris, 54 ECAB 502 (2003).

3

ORDER
IT IS HEREBY ORDERED THAT the March 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 19, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

4


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

)
)
)
)
)
)
)
)

Docket No. 10-716
Issued: January 26, 2011

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

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On January 25, 2010 appellant filed a timely appeal from a September 16, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his schedule award claim.
The Board also has jurisdiction over the January 6, 2010 decision denying appellant’s hearing
request. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the claim.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish employmentrelated permanent impairment, thereby entitling him to a schedule award; and (2) whether the
Office properly denied appellant’s request for an oral hearing as untimely under 5 U.S.C. § 8124.
FACTUAL HISTORY
On June 18, 2001 appellant, then a 39-year-old letter carrier, filed an occupational disease
claim alleging that his left arm and wrists conditions were related to his work duties of gripping,
grabbing and pulling mail and parcels. The Office accepted the claim for left lateral
epicondylitis and left carpal tunnel syndrome. It authorized left carpal tunnel release, which

appellant underwent on May 14, 2002. The Office paid benefits and he returned to work
following a period of disability. Appellant underwent a right carpal tunnel release on
December 2, 2004, which the Office approved. It is unclear from the record whether he returned
to work.1
On February 2, 2009 appellant filed a claim for a schedule award. In a March 23, 2009
report, Dr. Peter S. Trent, a Board-certified orthopedic surgeon, noted that the findings of a
January 7, 2008 electromyogram (EMG) revealed delayed bilateral distal motor latencies and
bilateral distal median sensory latencies across both wrists. On examination, he found decreased
strength and sensory deficit, pain and discomfort in the left hand. Dr. Trent opined that appellant
had 14 percent impairment for loss of function due to decreased strength and 9 percent
impairment for loss of function from sensory deficit, pain or discomfort. In a separate March 23,
2009 report, he advised that appellant reached maximum medical improvement on
March 23, 2009. Under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides), Dr. Trent assigned 14
percent permanent impairment of the upper extremity due to decreased strength and 9 percent
permanent impairment of the left hand due to loss of function from sensory deficit, pain or
discomfort.2
In an April 11, 2009 report, an Office medical adviser noted the claim was accepted for
left lateral epicondylitis and left carpal tunnel syndrome, for which appellant underwent left
carpal tunnel release. He reviewed Dr. Trent’s March 23, 2009 report and advised more
information was required to make an appropriate impairment rating, as no medical rationale or
physical findings support the impairment ratings of Dr. Trent. In a June 6, 2009 report, the
Office medical adviser reviewed the record, including the March 23, 2009 report from Dr. Trent,
and noted no tables or figures from the sixth edition of the A.M.A., Guides were discussed. He
again advised additional information from appellant’s treating physician was needed to assess
impairment or the Office could arrange a second opinion evaluation for impairment rating.
In an August 17, 2009 letter, the Office requested that Dr. Trent provide additional
information as to impairment ratings. No response was received from Dr. Trent.
By decision dated September 16, 2009, the Office denied appellant’s claim for a schedule
award.
On November 9, 2009 the Office received an October 26, 2009 report from Dr. Trent,
which noted findings on physical examination.

1

In File No. xxxxxxx406, the Office accepted that appellant’s April 7, 1999 injury resulted in temporary
aggravation of lumbar radiculopathy, herniated disc at L4-5, aggravation of degenerative disc disease, and
permanent aggravation of herniated nucleus pulpous at L5 on the left. In an April 8, 2004 decision, the Board found
the Office properly reduced appellant’s compensation to reflect his capacity to earn wages in the constructed
position of budget officer. It further found that he had not met his burden of proof to establish that his migraine
headaches were caused or aggravated by his April 7, 1999 employment injury. 55 ECAB 465 (2004).
2

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

2

On November 24, 2009 appellant requested an oral hearing. The request was postmarked
November 25, 2009. A copy of Dr. Trent’s October 26, 2009 report was provided with a
handwritten notation which stated: “sent paper work from Dr. Trent to London, KY for
additional evidence before 30 days.”
By decision dated January 6, 2010, the Office’s Branch of Hearings and Review denied
appellant’s request for an oral hearing on the grounds that it was untimely filed. It exercised its
discretion and further denied his request on the basis that the issue in the case could be addressed
by requesting reconsideration from the Office and submitting evidence not previously considered
which established that he sustained a greater percentage of impairment than what was previously
awarded.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage of loss shall
be determined. The method used in making such a determination is a matter that rests within the
sound discretion of the Office.5 For consistent results and to ensure equal justice under the law
to all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.6 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule
awards.7
Under the sixth edition of the A.M.A., Guides, impairments of the upper extremities are
covered by Chapter 15. Entrapment neuropathy, such as carpal tunnel syndrome, is addressed at
section 15-4f.8 Having established the diagnosis of carpal tunnel syndrome, the next step in the
rating process is to consult Table 15-23, entitled Entrapment/Compression Neuropathy
Impairment.9 The table provides a series of grade modifiers from zero to four and a range of
corresponding upper extremity impairments from zero to nine percent. Grade modifiers are

3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.404.

5

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

6

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

7

Federal (FECA) Procedure Manual, Part 2 -- Claims , Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.a (January 2010); see also Part 3 -- Medical , Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

A.M.A., Guides, supra note 2 at 432.

9

Id. at 448-49.

3

assigned based on a combination of factors including test findings, history and physical
findings.10
The Office’s procedures provide that, after obtaining all necessary medical evidence, the
file should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides. The Office medical adviser is
to provide rationale for the percentage of impairment specified.11
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained left lateral epicondylitis and left carpal
tunnel syndrome. It authorized carpal tunnel surgeries. Appellant filed a claim for a schedule
award. In reports dated March 23, 2009, Dr. Trent assigned 14 percent impairment of the left
upper extremity due to decreased strength and nine percent permanent impairment due to loss of
function from sensory deficit, pain or discomfort. An Office medical adviser reviewed
Dr. Trent’s reports but found that Dr. Trent did not address how he rated impairment under the
A.M.A., Guides. In a June 6, 2009 report, he reiterated the deficiencies in Dr. Trent’s reports
and recommended that he be asked to provide further explanation. Dr. Trent did not respond to
the Office’s August 17, 2009 letter requesting additional rationale for the impairment rating.
The Board finds that Dr. Trent did not provide a sufficient explanation of his impairment
rating. The A.M.A., Guides explain that, to rate focal nerve compromise under Table 15-23, the
appropriate grade modifier for test findings, history and physical findings is to be determined.12
Dr. Trent did not address the test findings, history or physical findings but merely advised that
appellant had 14 percent permanent impairment of the left upper extremity due to decreased
strength and nine percent permanent impairment due to sensory deficit, pain or discomfort. He
did not adequately explain his impairment rating pursuant to the A.M.A., Guides, despite the
Office’s August 17, 2009 request. Consequently, Dr. Trent’s opinion is of diminished probative
value.13
Appellant has the burden of proof to show entitlement to a schedule award.14 He did not
submit a comprehensive medical report from which the impairment of his left arm could be
determined. The Board finds that he did not met his burden of proof. The Board will affirm the
Office’s September 16, 2009 decision denying his claim for a schedule award.

10

Additional grade modifications are permitted using the QuickDASH (Disabilities of the Arm, Shoulder and
Hand) functional assessment tool.
11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
12

A.M.A., Guides, supra note 2 at 448.

13

See J.G., 61 ECAB ___ (Docket No. 09-1128, issued December 7, 2009) (an attending physician’s report is of
little probative value where the A.M.A., Guides are not properly followed).
14

Tammy L. Meehan, 53 ECAB 229 (2001).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act15 provides that a claimant not satisfied with a decision of
the Office is entitled to a hearing before an Office hearing representative when the request is
made within 30 days after issuance of the Office’s decision.16 Under the implementing
regulations, a claimant who has received a final adverse decision by the Office is entitled to a
hearing by writing to the address specified in the decision within 30 days (as determined by
postmark or other carrier’s date marking) of the date of the decision for which a hearing is
sought.17 If the request is not made within 30 days or if it is made after a reconsideration
request, a claimant is not entitled to a hearing or a review of the written record as a matter of
right.18
ANALYSIS -- ISSUE 2
By decision dated September 16, 2009, the Office denied appellant’s claim for a schedule
award on the basis evidence was not sufficient to establish that he sustained permanent
impairment to a scheduled member due to his accepted work injury. Appellant’s November 24,
2009 request for a hearing was made more than 30 days after the September 16, 2009 decision.
Therefore, it was not timely and he was not entitled to an oral hearing as a matter of right.19
The Office has the discretionary authority to grant a hearing even though a claimant is
not entitled as a matter of rights. In a January 6, 2010 decision, it properly exercised its
discretion. The Office considered the issue involved and denied appellant’s request for an oral
hearing on the basis that his claim on the issue of whether he was entitled to a schedule award
could be adequately addressed through the reconsideration process and the submission of
additional evidence. The Board has held that the only limitation on the Office’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deduction from established facts.20 In the present case, the Office did not abuse its discretion in
denying a discretionary hearing.
On appeal, appellant stated that he provided the Office with all the documentation it
requested from Dr. Trent. As noted, however, the medical evidence of record is not sufficient to

15

5 U.S.C. §§ 8101-8193.

16

Id. at § 8124(b)(1).

17

20 C.F.R. § 10.616(a); Id.

18

Teresa Valle, 57 ECAB 542 (2006).

19

See supra note 17.

20

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

5

establish permanent impairment of his left arm.21 Appellant’s request for an oral hearing was not
timely and the Office did not abuse its discretion in denying his request.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award as
he failed to submit sufficient evidence to establish the extent of permanent impairment It also
properly denied his request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2010 and September 16, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 26, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

Regarding new evidence submitted on appeal and new medical evidence received subsequent to the Office’s
April 22, 2009 decision, the Board notes that it has no jurisdiction to consider such evidence on appeal. See 20
C.F.R. § 501.2(c). Appellant may resubmit this evidence to the Office and request reconsideration under 5 U.S.C.
§ 8128.

6


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

)
)
)
)
)
)
)
)

Appearances:
Jason S. Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0883
Issued: October 17, 2016

Case Submitted on the Record

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

JURISDICTION
On March 17, 20162 appellant, through counsel, filed a timely appeal from a
September 21, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).

1

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
501.3(e)-(f). One hundred and eighty days from September 21, 2015, the date of OWCP’s last decision was
March 19, 2016, a Saturday; consequently, the period for filing the appeal ran to the next business day, Monday,
March 21, 2016. See 20 C.F.R. § 501.3(f)(2). Since using March 23, 2016, the date the appeal was received by the
Clerk of the Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the
date of filing. The date of the U.S. Postal Service postmark is March 17, 2016, rendering the appeal timely filed.
See 20 C.F.R. § 501.3(f)(1).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
left knee injury causally related to the accepted August 12, 2013 employment incident.
FACTUAL HISTORY
On August 12, 2013 appellant, then a 43-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she sustained a left knee injury when she was
exiting her truck and began to experience left knee pain. She stopped work on the date of injury
and did not return. On the reverse side of the form, the employing establishment controverted
appellant’s claim.
In an accompanying August 12, 2013 narrative statement, appellant reported that she was
delivering mail and about to start her second loop at 10:00 a.m. when her knee started to hurt.
She continued to deliver mail until she was limping due to pain, causing her to return to the
employing establishment around 12:00 p.m.
In an August 12, 2013 witness statement, Rick Gannotti, appellant’s supervisor, reported
that appellant informed him that she exited the long life vehicle (LLV) and her left knee started
to hurt. Appellant did not know how she got hurt. She sought treatment with her attending
physician that same date who diagnosed strain after review of a left knee x-ray.
By letter dated August 22, 2013, OWCP notified appellant that her claim was initially
administratively handled to allow medical payments, as her claim appeared to involve a minor
injury resulting in minimal or no lost time from work. However, the merits of her claim had not
been formally considered and her claim had been reopened because she had not returned to work
in a full-time capacity. Appellant was advised that the evidence of record was insufficient to
establish her traumatic injury claim. OWCP notified her of the medical and factual evidence
necessary to establish her claim. Appellant was afforded 30 days to respond.
In a September 6, 2013 narrative statement, appellant reported that on August 12, 2013
she was delivering mail when she felt a strong pain in her left knee as she was exiting her truck.
The pain worsened throughout the day until she could no longer walk. That same date appellant
sought treatment with her attending physician, Dr. Fuad Ahmad, Board-certified in internal
medicine who sent her to Chilton Hospital for left knee x-rays. She described her continued
medical treatment and explained that her left knee required surgery. Appellant reported no
similar left knee injuries or symptoms prior to August 12, 2013.
In an August 16, 2013 diagnostic report, Dr. Qiang Sun, a Board-certified diagnostic
radiologist, reported that a magnetic resonance imaging (MRI) scan of the left knee revealed a
small knee joint effusion, which could represent an intraarticular loose body verse focal
3

5 U.S.C. § 8101 et seq.

2

synovitis, mild arthritic changes involving the medial compartment of the tibiofemoral joint
without fracture or malalignment, and a faint thin linear high signal line in the body of the medial
meniscus with suggestion of extension to the articular surface, likely representing a medial
meniscal tear.
In an August 30, 2013 report, Dr. Joseph G. Cappadona, a Board-certified orthopedic
surgeon, reported that appellant complained of left diffuse knee pain, which started on
August 12, 2013 when she was getting out of her mail truck. He noted review of a left knee MRI
scan, which revealed a tear of the medial meniscus, loose body in the anterior knee verses some
synovitis, and arthritic changes. Dr. Cappadona provided findings on physical examination and
diagnosed pain in joint involving left lower leg, tear of left medial cartilage or meniscus of knee,
left chondromalacia of patella, and left knee loose joint body. He restricted appellant from
working and recommended left knee arthroscopy. Dr. Cappadona opined that she would be out
of work and could potentially return to light-duty sedentary work two weeks after surgery.
In a September 3, 2013 medical report, Dr. Ahmad noted that on August 12, 2013
appellant was at work distributing mail when she exited her truck, twisted her knee, and felt
severe pain. He reported that she could not continue working and came to his office for
treatment that same date. Dr. Ahmad’s August 12, 2013 examination findings revealed left knee
swelling and tenderness. He ordered an x-ray of the knee and advised that appellant rest a few
days. Appellant returned on August 14, 2013 with persistent swelling and tenderness.
Dr. Ahmad ordered an MRI scan of the left knee MRI scan which revealed medial meniscal tear
and loose body. He diagnosed tear of medial cartilage or meniscus of knee and loose body in
knee. Dr. Ahmad referred appellant to an orthopedic surgeon.
By decision dated October 2, 2013, OWCP accepted the August 12, 2013 employment
incident, but denied appellant’s claim, finding that the evidence of record failed to establish that
her diagnosed meniscal tear, chondromalacia patella, and loose body in the left knee were
causally related.
On October 9, 2013 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative. Counsel argued that a November 1, 2013 report from Dr. Ahmad
established her claim as the physician reported that he never treated her for a left knee injury
prior to the August 12, 2013 employment accident.
In an August 12, 2013 Chilton Hospital diagnostic report, Dr. Ahmad reported that an
x-ray of the left knee revealed no evidence for acute fracture or acute bony abnormality.
In an October 24, 2013 note, Dr. Cappadona reported that appellant sustained a
work-related left knee injury.
In an October 30, 2013 medical report, Dr. Vijaykumar Kulkarni, a Board-certified
surgeon, reported that appellant complained of left knee pain and swelling, which was
aggravated by prolonged walking, standing, bending, and changes in weather. Appellant
reported that, on August 12, 2013, while exiting her mail truck, she twisted her left knee and had
been out of work since the accident. Dr. Kulkarni provided findings on physical examination
and reviewed prior medical reports. He diagnosed sprain and strain of the left knee with possible

3

loose bodies and tear of the medial meniscus with residual of post-traumatic synovitis and loss of
range of motion. Dr. Kulkarni opined that the August 12, 2013 employment accident was the
proximal cause of the complaints, physical findings, and diagnosis noted in his report. He
recommended surgery.
In a November 1, 2013 medical narrative, Dr. Ahmad reported that appellant had been his
patient since September 2009. Prior to August 12, 2013, he had never treated her for a left knee
injury.
A hearing was held on June 4, 2014. At the hearing, appellant testified that on
August 12, 2013 she was exiting her mail truck while holding a bag of mail. She stepped out of
her parked LLV and placed her feet on the vehicle footboard. Appellant then awkwardly placed
her right foot on the ground and followed by stepping out with her left leg. Her left leg twisted
to the side, causing a sharp pain in her knee. Appellant continued to deliver mail, but her pain
worsened to the point where she could no longer walk. She then notified her supervisor and
sought immediate medical treatment with Dr. Ahmad. Appellant reported that she never
informed her supervisor that she did not know how her injury occurred. Her Form CA-1 did not
describe twisting her left knee because she did not think the additional details were necessary.
Appellant described her medical treatment and reported no prior left knee injuries. She remained
off work since the August 12, 2013 employment incident and was awaiting approval for left knee
surgery.
Handwritten progress and excuse from work notes were submitted from Dr. Ahmad dated
August 12, 2013 through May 6, 2014 documenting treatment for appellant’s left knee condition.
On August 12, 2013 he diagnosed left knee sprain. On August 14, 2013 Dr. Ahmad diagnosed
left knee sprain and ordered an MRI scan of the left knee. On August 20, 2013 he reported that
appellant twisted her left knee at work. Dr. Ahmad noted that an MRI scan of the left knee
revealed meniscal tear (medial) and loose body.
By decision dated July 21, 2014, OWCP’s hearing representative affirmed the October 2,
2013 OWCP decision finding that the evidence of record failed to establish that appellant’s
diagnosed left knee injuries were causally related to the accepted August 12, 2013 employment
incident.4
On June 23, 2015 appellant, through counsel, requested reconsideration of the July 21,
2014 decision. Counsel stated that a December 27, 2014 and May 15, 2015 reports from
Dr. Ahmad, as well as an October 23, 2014 report from Dr. Kulkarni, established her claim for
compensation. Counsel further argued that, at the very least, the evidence of record shifted the
burden to OWCP to further develop the medical evidence.
In an October 23, 2014 medical report, Dr. Kulkarni repeated the history of the April 12,
2013 employment incident, reviewed prior medical reports, and provided findings on physical
examination. He diagnosed sprain and strain of the left knee with possible loose bodies and tear
of the medial meniscus with residual of post-traumatic synovitis and loss of range of motion.
4

The Board notes that the hearing representative found that the record established that appellant twisted her left
knee when she exited the LLV as the employing establishment failed to comment on her description of the events.

4

Dr. Kulkarni reported that appellant stated no injury prior to the August 12, 2013 employment
incident and that he had no available records to indicate that she had any prior treatment or
subsequent treatment to the left knee. Therefore, he concluded that the diagnoses rendered for
the left knee were causally related to the injury sustained on August 12, 2013, which revealed
loose bodies and a meniscal tear. Dr. Kulkarni opined that the August 12, 2013 employment
accident was the proximal cause of the complaints, physical findings, and diagnosis noted in his
report. The reasons for his opinion included history according to appellant, the physical
examination, duties of her occupation, and review of medical records.
In a December 27, 2014 narrative report, Dr. Ahmad reported that a left knee MRI scan
was done on August 16, 2013 a few days after the August 12, 2013 injury. He explained that a
twisting movement during work lead to appellant’s meniscal tears. Dr. Ahmad further stated that
this type of injury was known to cause meniscus tears and was very common in athletic activities
and sports. He reported that a loose body in the joint just behind the knee cap was a sign of
small piece cut from the knee cartilage which was caused by the August 12, 2013 injury.
Dr. Ahmad further noted a line in the inner cartilage of the knee indicated a cartilage tear, which
was caused by the August 12, 2013 injury. He explained that arthritic changes were not caused
by the recent injury in question, but that small joint fluid was related to the August 12, 2013
injury. Dr. Ahmad concluded that appellant suffered an injury on August 12, 2013 caused by the
twisting movement, which led to a meniscus tear, requiring surgery.
In a May 15, 2015 narrative report, Dr. Ahmad reported that on August 12, 2013
appellant was in the course of employment as a mail carrier. Appellant stepped out of her truck,
placed her right foot on the full board and then her left foot; and appellant then placed her right
foot on the ground and as she placed her left foot on the ground she felt it twist, and then a sharp
pain. Dr. Ahmad opined that this type of movement caused the torn meniscus she sustained on
that date. “The mechanism of placing appellant’s foot on the ground, and twisting of the knee
[is] the type of mechanism that caused the torn meniscus, which require[s] surgical intervention.”
By decision dated September 21, 2015, OWCP affirmed the July 21, 2014 decision
finding that the evidence of record failed to establish that appellant’s diagnosed left knee
conditions were causally related to the accepted August 12, 2013 employment incident. It
further found that the evidence of record failed to establish causal relationship sufficient to shift
the burden to OWCP for further development of the medical evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the

5

employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.7 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence supporting such a causal relationship.8 The opinion of the physician
must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. This medical opinion must include an accurate history of the
employee’s employment injury and must explain how the condition is related to the injury. The
weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.9
ANALYSIS
OWCP accepted that the August 12, 2013 employment incident occurred as alleged when
appellant stepped off her LLV and twisted her left knee. The issue before the Board is whether
she has established that the incident caused her left knee injury. The Board finds that this case is
not in posture for decision and must be remanded for further medical development.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of establishing entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.10
OWCP received medical and diagnostic reports, dated April 12, 2013 through May 5,
2015, from Dr. Ahmad. Dr. Ahmad provided a detailed medical history, physical examination
5

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

6

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

7

Elaine Pendleton, supra note 4.

8

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

9

James Mack, 43 ECAB 321 (1991).

10

Phillip L. Barnes, 55 ECAB 426 (2004); William J. Cantrell, 34 ECAB 1233 (1993); Dorothy L. Sidwell,
36 ECAB 699 (1985).

6

findings, and review of diagnostic testing. The Board notes that, while none of his reports are
completely rationalized, they are consistent in indicating that appellant sustained an
employment-related injury and are not contradicted by any substantial medical or factual
evidence of record. Dr. Ahmad provided an accurate medical history explaining that he was
appellant’s attending physician since September 2009 and had never treated her for a left knee
injury until August 12, 2013. He described the August 12, 2013 employment incident in detail
explaining that appellant twisted her left knee while she was stepping off the full board of her
LLV. Dr. Ahmad provided immediate treatment of appellant’s injuries on the date of incident
and noted physical examination findings of left knee tenderness and swelling. He ordered
diagnostic testing on the date of injury yet x-rays revealed normal. Given appellant’s continued
swelling and tenderness as seen on physical examination, Dr. Ahmad ordered a left knee MRI
scan, which revealed her current injury. He explained that the mechanism of placing her left foot
on the ground and twisting her knee caused the torn meniscus. Dr. Ahmad further explained the
left knee MRI scan findings stating that the loose joint body, cartilage tear, and small joint fluid
were caused by the August 12, 2013 injury while arthritic changes were not caused by the injury
in question.
While Dr. Ahmad did not fully describe the mechanism of the injury, he provided a clear,
opinion based on examination findings and an accurate factual and medical background, that
appellant sustained her left knee meniscus tear due to the August 12, 2013 employment incident
when she stepped off her truck and twisted her left knee. He noted that the type of injury
appellant experienced was known to result in meniscus tears. Dr. Ahmad demonstrated an
understanding of the employment incident and discussed how this event caused her injuries. He
provided a medical history and based his findings on diagnostic testing and physical
examination. Additionally, Dr. Ahmad’s opinion is not contradicted by any substantial medical
or factual evidence of record.
Dr. Kulkarni’s October 30, 2013 and October 23, 2014 reports provide support for
appellant’s assertions. Dr. Kulkarni explained that the August 12, 2013 employment incident of
twisting appellant’s left knee caused the sprain and strain with possible loose bodies and tear of
the medial meniscus. As well, the reports of Dr. Cappadona also provide support for findings of
a work-related injury.
Although the reports of Drs. Ahmad, Kulkarni, and Cappadona are not sufficient to meet
appellant’s burden of proof to establish her claim, they raise an uncontroverted inference
between her condition and the work-related incident and are sufficient to require OWCP to
further develop the medical evidence and the case record.11
The Board notes that OWCP decisions discussed whether appellant’s left knee injury was
a preexisting condition unrelated to her employment duties. OWCP placed emphasis on the
August 16, 2013 left knee MRI scan, which noted mild arthritic changes. Dr. Ahmad properly
explained that the arthritic changes were not caused by the new injury while the meniscal tear
and loose body were related to the August 12, 2013 employment incident. Moreover, physical

11

See Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989).

7

examination findings of tenderness and swelling correlated with the tear of the meniscus as seen
on MRI scan.12
The September 21, 2015 decision noted that, while Dr. Ahmad’s May 15, 2015 report
provided an accurate description of the mechanism of injury, his note failed to contain a
complete and accurate history of injury with rationalized statements establishing a work-related
condition. The Board notes that while Dr. Ahmad’s May 15, 2015 report alone may not have
been sufficient to establish appellant’s claim, his compiled reports since the date of the
August 12, 2013 employment incident provided support to further develop the medical evidence
of record. While Dr. Ahmad’s reports are not sufficient to meet her burden of proof to establish
her claim, they are sufficient to require OWCP to further develop the medical evidence and the
case record.13
The Board will remand the case for further development of the medical evidence. On
remand OWCP should prepare a statement of accepted facts and obtain a rationalized opinion
from an appropriate Board-certified physician as to whether appellant’s left knee conditions are
causally related to the August 12, 2013 employment incident, either directly or through
aggravation, precipitation, or acceleration.14 Following this and any other further development
deemed necessary, it shall issue a de novo decision on appellant’s traumatic injury claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

The Board notes that there is no requirement that the federal employment be the only cause of appellant’s
injury. An employee is not required to prove that occupational factors are the sole cause of her claimed condition.
If work-related exposures caused, aggravated or accelerated appellant’s condition, she is entitled to compensation.
See S.S., Docket No. 08-2386 (issued June 5, 2008); Beth P. Chaput, 37 ECAB 158, 161 (1985).
13

See P.K., Docket No. 08-2551 (issued June 2, 2009); see also Horace Langhorne, 29 ECAB 820 (1978).

14

P.A., Docket No. 09-0319 (issued November 23, 2009).

8

ORDER
IT IS HEREBY ORDERED THAT the September 21, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: October 17, 2016
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
DEPARTMENT OF THE ARMY, BROOKE
ARMY MEDICAL CENTER, Houston, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1068
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On June 28, 2021 appellant filed a timely appeal from a May 28, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted October 9, 2020 employment incident.
FACTUAL HISTORY
On April 12, 2021 appellant, then a 57-year-old practical nurse, filed a traumatic injury
claim (Form CA-1) alleging that on October 9, 2020 a maintenance worker ran over her right foot
1

5 U.S.C. § 8101 et seq.

with a cart, which caused pain and swelling in her right foot as well as knee pain. On the reverse
side of the claim form, appellant’s supervisor indicated that she was injured in the performance of
duty. Appellant did not stop work.
In support of her claim, appellant submitted a medical report dated November 3, 2020 from
Dr. Melany A. Shearrer, a family medicine specialist. Dr. Shearrer related that appellant was seen
for right foot pain and a small lump on the top of her foot, which began one month prior when a
maintenance cart hit the top of her foot.
In reports dated March 10 and 12, 2021, Dr. Tamara Moseley, a podiatrist, related that a
cart ran over appellant’s foot in November 2020 and she noted that appellant had complaints of
right foot pain, swelling, and paresthesia. In the March 12, 2021 note, she related that x-rays of
appellant’s foot were negative for fracture and diagnosed right foot pain.
In a March 11, 2021 report, Dr. Bhavna Lalvani, a family medicine specialist, related that
appellant was seen for right knee pain, which appellant believed resulted from overcompensating
from a right foot injury in November 2020.
On March 30, 2021 a physical therapist requested a consultation for a provisional diagnosis
of right knee unilateral primary osteoarthritis.
OWCP received a letter dated April 8, 2021 from appellant’s co-worker, M.R., and a
separate letter from her co-worker, T.V. Both co-workers stated that they witnessed a maintenance
cart run over appellant’s right foot in October 2020. M.R. also related that appellant stated that
she was in pain and held her right leg and foot following the incident.
In a development letter dated April 26, 2021, OWCP informed appellant of the deficiencies
in her claim. It noted the type of factual and medical evidence needed and provided a questionnaire
for her completion. OWCP afforded appellant 30 days to submit the necessary evidence.
In a report dated April 27, 2021, Matthew Randel, a physical therapist, related that
appellant presented with signs and symptoms commonly associated with right foot pain , likely due
to nerve and soft tissue injury.
Appellant submitted a response to OWCP’s development questionnaire dated May 5, 2021.
She attested that she told her supervisor of her injury three or four weeks after it occurred as she
was still in pain. Appellant stated that her supervisor initially indicated that it was too late to file
a claim.
By decision dated May 28, 2021, OWCP accepted that the October 9, 2020 employment
incident occurred, as alleged; however the claim was denied as she had not submitted medical
evidence containing a medical diagnosis in connection with her accepted employment incident. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 8

2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted October 9, 2020 employment incident.
In support of her claim, appellant submitted a medical report dated November 3, 2020 from
Dr. Shearrer, which related that appellant was seen for right foot pain. Similarly, OWCP received
a medical report dated March 11, 2021 from Dr. Lalvani, which stated that appellant was seen for
right knee pain. The Board has held that pain is a symptom and not a compensable medical
diagnosis.9 As these reports did not provide a firm diagnosis causally related to the acc epted
employment incident, they are insufficient to establish appellant’s claim.
OWCP also received reports dated March 10 and 12, 2021 from Dr. Moseley, which related
that appellant had right foot pain, swelling, and paresthesia. As with pain, 10 swelling,11 and
numbness12 are also symptoms of a medical condition, not diagnoses. For this reason,
Dr. Moseley’s reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted were reports from physical therapists. Certain healthcare
providers such as physician assistants, nurse practitioners, and physical therapists are not
considered physicians as defined under FECA. 13 Their opinions are therefore not considered
competent medical evidence. 14 Consequently, this evidence will not suffice for purposes of
establishing entitlement to FECA benefits. 15
As there is no medical evidence of record establishing a diagnosed medical condition
causally related to the accepted October 9, 2020 employment incident, the Board finds that
appellant has not met her burden of proof.

9

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

10

Supra note 9.

11

M.C., Docket No. 17-0024 (issued March 22, 2018).

12

See Leonardo G. Cobero, Docket No. 99-2489 (issued June 1, 2001).

5 U.S.C. § 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); see also M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket No. 19-0221
(issued July 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
13

14

M.T., Docket No. 21-0783 (issued December 27, 2021).

15

See M.C., Docket No. 19-1074 (issued June 12, 2020).

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 has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted October 9, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Executrix of the Estate of W.M., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Corpus Christi, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Steve Maher, for the appellant
No appearance, for the Director

Docket No. 13-322
Issued: June 5, 2013

Oral Argument April 16, 2013

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 26, 2012 appellant filed a timely appeal from an October 25, 2012 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 the employee has established an injury causally related to exposure
to chemicals or other substances in his federal employment.
FACTUAL HISTORY
The case has been before the Board on prior appeals. There were four claims filed by the
employee. The employee initially filed a claim on March 2, 1988 alleging that he developed
fatigue, depression, a skin condition, rapid heartbeat, stress and anxiety due to exposure to Agent
1

5 U.S.C. § 8101 et seq.

Orange (AO). By decision dated March 31, 1992, the Board affirmed OWCP’s denial of the
claim on the grounds that it was not timely filed.2 On January 7, 2005 the employee filed an
occupational claim alleging that he developed Type II diabetes and peripheral neuropathy as a
result of chemical exposure while overhauling helicopters in his federal employment. By
decision dated September 17, 2008, the Board affirmed an OWCP decision dated July 2, 2007,
finding that the medical evidence was insufficient to establish that diabetes and peripheral
neuropathy were causally related to chemical exposure.3
In a decision dated August 27, 2012, the Board remanded the case for further
development. The Board found that an October 15, 2010 report from Dr. A. Lee Guinn, a Boardcertified internist, was sufficient to require additional development of the evidence. The history
of the case as provided in the Board’s prior decisions is incorporated herein by reference.
On return of the case record, OWCP prepared a statement of accepted facts (SOAF) dated
September 28, 2012. The SOAF noted that appellant worked in the United States from 1966 to
1973 overhauling military helicopters, from 1973 to 1980 as a quality inspector, inspecting the
work on helicopters performed by mechanics, and from 1980 to 1988 as a quality assurance
specialist. With respect to exposure in federal employment, the SOAF indicated that from late
1960s to early 1970s some of the helicopters appellant overhauled had been in Viet Nam and
contained small amounts of a rodenticide. Also noted was a white powder seen in a single
helicopter. The SOAF found that there was no documentation that any of the helicopters
contained AO, but appellant could have contact with fuels, greases and oils.
The case was referred to Dr. Imawati Wong, a Board-certified oncologist, and Dr. Raye
Bellinger, a Board-certified internist, for evaluation. In a report dated October 5, 2012,
Dr. Wong indicated that he had reviewed medical records and the SOAF. He opined that the
diagnosed conditions of colon and basal skin cancer were not causally related to any exposure in
the employee’s federal employment. Dr. Wong stated that exposure to fuels, greases and oils
were not considered high risk factors for colorectal or skin cancer.
In a report dated October 5, 2012, Dr. Bellinger provided a history and indicated that he
reviewed medical records. He noted that the employee’s diagnoses included: diabetes,
peripheral neuropathy, colon and skin cancer, hyperlipidemia, hypertension, impaired vision,
stroke and tinea pedis. Dr. Bellinger opined that, based on his review of the evidence, there was
no evidence of causal relationship between a diagnosed condition and the employee’s federal
employment.
By decision dated October 25, 2012, OWCP denied the claim for compensation. It found
the weight of the medical evidence was represented by Drs. Wong and Bellinger.

2

Docket No. 91-1047 (issued March 31, 1992).

3

Docket No. 07-1911 (issued September 17, 2008).

2

LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.6
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.7 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.8
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.9
FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.10 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.11

4

5 U.S.C. §§ 8101-8193.

5

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See Robert G. Morris, 48 ECAB 238 (1996).

8

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Id.

10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321 (1999).

3

ANALYSIS
As noted above, the case has been before the Board on prior appeals and clearly the case
presents difficult medical issues. Before addressing the medical evidence, a preliminary factual
issue must be considered. The question of whether the employee was exposed to AO while
working on helicopters in his federal employment was an issue that OWCP had not addressed in
detail until the September 28, 2012 SOAF. OWCP found that there was no documentation that
AO was present in the exterior or interior of the helicopters that were maintained by the
employee. Appellant disagrees with this finding, arguing that the employing establishment did
not disclose the actual AO exposure.
The Board is limited to review of the evidence of record.12 In this regard the employing
establishment, in letters dated February 16, 2005 and May 21, 2007, stated that there was an
investigation that revealed no record of any AO contamination in the helicopters at the
employee’s work site. The record contains an April 7, 1989 document that reports a
conversation with a Mr. Martinez, a packaging specialist with the employing establishment.
According to Mr. Martinez, before any shop personnel worked on helicopters they would have
been cleaned and decontaminated. In a memorandum dated July 31, 1990, an employing
establishment safety and occupational health director stated that the employing establishment
also attempted to clean the aircraft prior to returning to the United States.
Appellant has argued that OWCP did not properly determine the reliability of any
statement by Mr. Martinez as to AO exposure. The evidence, as discussed above, was not
limited to the April 7, 1989 document. Moreover, the record does not contain probative evidence
documenting exposure to AO by the employee in his federal employment. The employee
referred to a 1989 film regarding helicopters in Viet Nam and the use of AO, but this does not
establish specific exposure in the helicopters overhauled by the employee. Witness statements
from coworkers as to medical problems they encountered also do not establish AO exposure.
Based on the evidence of record, the Board finds that OWCP properly concluded that
there was no documentation of AO exposure by the employee in this case. This finding does not
itself, however, establish that the weight of the medical evidence is represented by the second
opinion physicians, Drs. Wong and Bellinger.
As the Board noted in its prior decision, Dr. Guinn indicated in his October 15, 2010
report that appellant had been exposed to a number of chemicals, including jet fuels and other
chemical compounds. He provided an unequivocal opinion that the employee had developed
many comorbid medical conditions as a result of exposure to these chemicals. The Board found
this report was sufficient to further develop the medical evidence. In a report dated August 8,
2011, Dr. Guinn reiterated that the employee was exposed to chemicals other than AO, including
those found in solvents and fuels. He again opined that the exposure caused multiple medical
conditions.
Drs. Wong and Bellinger disagreed, finding that the chemical exposure in federal
employment did not contribute to a diagnosed condition for the employee. Section 8123(a)
12

20 C.F.R. § 501.2(c).

4

indicates that, when there is a disagreement between an attending physician and an OWCP
second opinion physician, the case should be referred to an impartial referee physician to resolve
the conflict. The case will be remanded for resolution of the conflict between Dr. Guinn and
Drs. Wong and Bellinger.
Given the complexity of the factual and medical issues, it is particularly important that an
accurate and complete SOAF be prepared. In this regard the Board notes that OWCP made no
findings as to exposure to asbestos. The employee alleged exposure to asbestos, and the July 31,
1990 statement from the safety officer stated that asbestos would almost certainly be found in the
helicopters. In addition, OWCP should clarify and expand its findings as to solvents and fuels.
The record indicated that employees used solvents in overhauling helicopters, and the SOAF
should provide as specific detail as possible regarding the chemicals contained in solvents and
fuels at the employing establishment work site. The statement of accepted facts shall also list all
chemicals and solvents which were used to prepare the subject helicopters for return to the
United States.
The case will be remanded to OWCP for preparation of a SOAF and selection of an
impartial referee physician in accord with established procedures. The referee should be asked
to provide a rationalized medical opinion on causal relationship between a diagnosed condition
and exposure to solvents and fuels in federal employment. After such further development as is
deemed necessary, OWCP should issue an appropriate decision.
CONCLUSION
The Board finds the case must be remanded for further development of the medical
evidence.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 25, 2012 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: June 5, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.S., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, Cass Lake, MN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1751
Issued: November 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 11, 2014 appellant filed a timely appeal from a May 19, 2014 merit decision
of the Office of Workers’ Compensation Programs denying his 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 met his burden of proof to establish that he sustained left
arm and shoulder injuries on March 11, 2014 while in the performance of duty.
FACTUAL HISTORY
On March 11, 2014 appellant, then a 64-year-old forestry aid, filed a traumatic injury
claim alleging that he sustained left arm, shoulder and rib injuries that day when he slipped and

1

5 U.S.C. § 8101 et seq.

fell on ice on a sidewalk while carrying a box in the performance of duty. He stopped work on
the date of injury.
An unsigned medical report dated March 11, 2013 contained the printed name of
Katherine Friese, a certified nurse practitioner. The report noted appellant’s chief complaint of
left shoulder and elbow pain. It provided a history of the March 11, 2014 incident and
appellant’s family and social background. It listed findings on physical and x-ray examination
and diagnoses of left upper arm and shoulder contusions. It recommended restricted work duty
for appellant through March 18, 2014.
Unsigned x-ray reports dated March 11, 2014 contained the printed name of Dr. Chad J.
St. Germain, a Board-certified radiologist. X-rays of the left elbow, humerus and shoulder
revealed subtle irregularity involving the lateral supracondylar region of the distal left humerus
that may reflect a nondisplaced fracture. Follow-up radiographs in 10 to 14 days were
recommended. The x-rays also revealed mild degenerative changes involving the left shoulder
with no evidence of acute fracture or dislocation. A magnetic resonance imaging scan was
recommended if there was concern for internal derangement.
On April 15, 2014 appellant accepted the employing establishment’s April 9, 2014 job
offer of a light-duty position. He returned to work on March 17, 2014.
By letter dated April 16, 2014, OWCP advised that, when appellant’s claim was received,
it appeared to be a minor injury that resulted in minimal or no lost time from work. Because the
employing establishment did not controvert continuation of pay or challenge the case, payment
of a limited amount of medical expenses was administratively approved. OWCP reopened the
claim for adjudication because appellant had not returned to work in a full-time capacity.
Thereafter, OWCP notified appellant of the deficiencies of his claim and afforded him 30
days to submit additional medical evidence. It also requested that the employing establishment
submit medical evidence, if appellant had been treated at its medical facility.
In an April 10, 2014 report, Jeffrey Large, a physical therapist, advised that appellant had
a left shoulder rotator cuff tear and addressed his treatment.
In an April 17, 2014 report, Dr. John A. Hamilton, a Board-certified orthopedic surgeon,
advised that appellant could return to work on that day. He could work as tolerated.
By decision dated May 19, 2014, OWCP accepted that the March 11, 2014 incident
occurred as alleged. It denied appellant’s claim, however, finding that the medical evidence
failed to establish that his left arm or shoulder conditions were causally related to the accepted
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
2

5 U.S.C. §§ 8101-8193.

2

evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
OWCP accepted that on March 11, 2014 appellant fell on ice while in the performance of
duty. It found that the medical evidence failed to establish that he sustained left arm and
shoulder injuries as a result of the accepted incident. The Board finds that appellant failed to
provide sufficient medical evidence to establish that he sustained left arm and shoulder injuries
causally related to the accepted March 11, 2014 employment incident.
Dr. Hamilton’s April 17, 2014 report released appellant to return to work on that day.
However, he did not provide a firm diagnosis of a particular medical condition,10 provide any
history of injury,11 or offer a specific opinion as to whether the accepted March 11, 2014

3

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

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

10

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
11

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).

3

employment incident caused or aggravated appellant’s condition.12 Consequently, the Board
finds that the report is of limited probative value and does not establish appellant’s traumatic
injury claim.
The reports from Ms. Friese, a certified nurse practitioner, and Mr. Large, a physical
therapist, are insufficient to establish appellant’s claim. As neither a nurse practitioner nor a
physical therapist is a “physician” as defined under FECA, their opinions are of no probative
value.13
The unsigned reports which contained the printed name of Dr. St. Germain are
insufficient to establish appellant’s claim. A report that is unsigned or bears an illegible
signature lacks proper identification and cannot be considered probative medical evidence.14
Therefore, the Board finds that there is insufficient medical evidence to establish that
appellant sustained left arm and shoulder injuries causally related to the accepted March 11,
2014 employment incident.
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 has not met his burden of proof to establish that he
sustained left arm and shoulder injuries on March 11, 2014 while in the performance of duty.

12

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
13

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); A.C.,
Docket No. 08-1453 (issued November 18, 2008) (records from a physical therapist do not constitute competent
medical opinion in support of causal relation, as physical therapists are not physicians as defined under FECA);
L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA); Roy L. Humphrey, 57
ECAB 238 (2005).
14

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the May 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 25, 2014
Washington, DC

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

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

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

5