United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Albany, NY, Employer
__________________________________________

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

Docket No. 10-300
Issued: December 14, 2010

Case Submitted on the Record

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

JURISDICTION
On November 13, 2009 appellant through her attorney filed a timely appeal of an
October 6, 2009 Office of Workers’ Compensation Programs’ decision denying merit review.
Because over one year has elapsed between the most recent merit decision, dated July 28, 2008
and the filing of this appeal, on November 13, 2009, the Board lacks jurisdiction to review the
merits of appellant’s case.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3 the Board will only
consider the nonmerit issue.
ISSUE
The issue is whether the Office properly denied appellant’s request for merit review
under 5 U.S.C. § 8128(a).

1

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19,
2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
This case has previously been before the Board on appeal.2 The facts and circumstances
of the case as set forth in the Board’s prior decision are adopted herein by reference. The facts
and history of the case relevant to this appeal are set forth below.
On December 7, 1995 appellant, then a 40-year-old clerk, filed an occupational disease
claim alleging that she developed tendinitis and myositis due to pushing bundles of mail onto
utility carts and into sacks. On March 23, 1996 the Office accepted her claim for bilateral
fibromyositis.
Appellant’s attending physician, Dr. Jonathan E. Cooper, a Board-certified physiatrist,
continued to support appellant’s diagnosis of fibromyalgia and limited ability to work. The
Office referred her to Dr. Patrick J. Hughes, a Board-certified neurologist, for a second opinion
evaluation on November 9, 2000. In his December 10, 2000 report, Dr. Hughes concluded that
appellant had only subjective complaints of pain and no objective evidence of disability. He
opined that she did not require modified duty or medical treatment.
The Office proposed to terminate appellant’s compensation benefits by letter dated
January 24, 2001 relying on Dr. Hughes’ report. Appellant responded on February 20, 2001 and
disagreed with the proposed termination. Due to the disagreement between Drs. Cooper and
Hughes regarding her continuing employment-related condition and disability, the Office
referred her for an impartial medical evaluation with Dr. Kevin Barron, a Board-certified
neurologist, who examined her on October 30, 2001 and reviewed the medical history.
Dr. Barron specifically noted an emergency department record dated October 28, 1998 which
stated that appellant’s fibromyalgia was diagnosed in 1985. He found that appellant had no
continuing employment-related condition or disability.
By decision dated January 23, 2002, the Office terminated appellant’s compensation and
medical benefits effective that date. Appellant requested a review of the written record. By
decision dated June 27, 2002, the Branch of Hearings and Review affirmed the Office’s
January 23, 2002 decision.
Appellant requested reconsideration on May 10, 2003 and submitted additional medical
evidence diagnosing fibromyalgia due to her employment injury. By decision dated July 28,
2003, the Office reviewed the merits of her claim but denied modification of the July 27, 2002
termination decision.
Appellant again requested reconsideration on April 14, 2004. By decision dated July 29,
2004, the Office denied modification of its prior decisions. It vacated this decision on
August 20, 2004 as it contained incorrect appeal rights, but again denied modification of the
July 23, 2002 termination decision attaching correct appeal rights.
Appellant requested reconsideration on July 26, 2005 and submitted additional medical
evidence. By decision dated October 31, 2005, the Office declined to reopen her claim for
2

Docket No. 06-1318 (issued December 18, 2006).

2

consideration of the merits. It concluded that the medical evidence submitted was not relevant as
it was not based on a complete factual background. The Board set aside this decision on
December 18, 2006 and remanded appellant’s claim for review of the merits.3
Following the December 18, 2006 decision of the Board, the Office reviewed appellant’s
claim on the merits on April 20, 2007 and declined to modify the prior decisions. It found that
the weight of the medical opinion evidence rested with Dr. Barron, the impartial medical
examiner, who found that appellant had no employment-related disability. The Office stated,
“[A]ll your physicians appear to be proceeding from an inaccurate appreciation of your overall
medical condition in assigning a causal relationship between the claimed fibromyalgia and the
accepted work injury, unlike Dr. Barron who states ‘there was an emergency department record,
St. Peter’s Hospital, October 28, 1998, by Michael Cullen, M.D.’ He stated that fibromyalgia
‘has been diagnosed as far back as 1985.’” It found that the reports of appellant’s physicians
were of diminished probative value as they attributed her condition solely to her accepted 1995
employment injury.
Appellant requested reconsideration on April 18, 2008 and stated that her condition
started a bilateral tendinitis and developed into fibromyalgia as accepted by the Office in 1996.
She submitted a statement that her fibromyalgia was diagnosed in 1995. In support of this
statement, appellant submitted a note from her nurse practitioner stating that the practice had
treated her since 1991 and that she was initially diagnosed with fibromyalgia on
December 15, 1991. She resubmitted a copy of the October 28, 1998 emergency department
record and alleged that the date of 1985 was a typographical error. Appellant requested that the
hospital correct this error.
Appellant submitted several reports from Dr. Cooper. On January 9 and 30, 2007 as well
as May 9, 2007 Dr. Cooper diagnosed myofascial pain syndrome and fibromyalgia. He stated
that she had a traumatically-induced work-related soft tissue rheumatism or myofascial pain
syndrome evolving into fibromyalgia. Dr. Cooper stated that the October 28, 1998 report
contained an error as all of appellant’s records indicated that her symptoms of fibromyalgia
began in 1995. He also completed a form report on January 30, 2007 and opined the she had
chronic persistent somatic pain involving the upper extremities beginning in 1995.
Dr. Richard Wilmot, a Board-certified internist, examined appellant on June 27,
August 27 and October 11, 2007 as well as January 7, 2008 diagnosing fibromyalgia, sleep
dysfunction and fatigue. He completed a form report on January 8, 2008. Dr. Dorota HausnerSypek, a Board-certified rheumatologist, diagnosed fibromyalgia and myofascial pain syndrome
on December 13, 2006.
By decision dated July 28, 2008, the Office denied modification of its prior decisions
finding that the weight of the medical evidence rested with Dr. Barron.
Appellant again requested reconsideration on July 15, 2009 and stated that she would
require medical treatment for the rest of her life and requested medical benefits. In a separate
letter, she argued that Dr. Barron did not have an accurate medical history at the time of his
3

Id.

3

examination as there was a typographical error regarding the onset of her condition in the 1998
report. Dr. Hausner-Sypek completed reports on June 2 and October 8, 2008 as well as April 8,
2009 finding multiple soft tissue tender points and diagnosing fibromyalgia and myofascial pain
syndrome. On July 7, September 2 and December 1, 2008 as well as March 2, 2009 Dr. Wilmot
repeated his diagnoses of fibromyalgia, sleep dysfunction and fatigue. He also noted that
appellant was experiencing stress at work.
By decision dated September 29, 2009, the Office declined to reopen appellant’s claim
for consideration of the merits. It found that the new evidence submitted was repetitious of
previous reports and did not contain relevant and pertinent new evidence. The Office further
found that appellant had not submitted an argument warranting merit review as she had not
presented a corrected copy of the 1998 report which listed her condition as beginning in 1985. It
stated, “[T]here is no way to allow for assessment of this argument to determine its pertinence.”
On October 6, 2009 the Office reissued this decision with appropriate appeal rights.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides in section 8128(a) that the Office
may review an award for or against payment of compensation at any time on its own motion or
on application by the claimant.4 Section 10.606(b) of the Code of Federal Regulations provides
that a claimant may obtain review of the merits of the claim by submitting in writing an
application for reconsideration which sets forth arguments or evidence and shows that the Office
erroneously applied or interpreted a specific point of law; or advances a relevant legal argument
not previously considered by the Office; or includes relevant and pertinent new evidence not
previously considered by the Office.5 Section 10.608 of the Office’s regulations provide that
when a request for reconsideration is timely, but does meet at least one of these three
requirements, the Office will deny the application for review without reopening the case for a
review on the merits.6
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.7
ANALYSIS
The Office terminated appellant’s compensation and medical benefits effective
January 23, 2002. Appellant disagreed with this decision and requested reconsideration on
4

5 U.S.C. §§ 8101-8193, 8128(a).

5

20 C.F.R. § 10.606.

6

Id. at § 10.608.

7

M.E., 58 ECAB 694 (2007).

4

July 15, 2009. She submitted a series of reports from her physicians, Drs. Wilmot, Cooper and
Hausner-Sypek. These reports were similar to reports previously considered by the Office and
did not offer any new medical support for appellant’s continuing employment-related condition
or disability.
Appellant argued that the report of Dr. Barron, a Board-certified neurologist and
impartial medical examiner, was based on an incorrect factual background. She argued that, as
he relied on a 1998 emergency department report, which stated that her diagnosed condition of
fibromyalgia began in 1985, a typographical error according to her, his report was not based on a
proper factual background. The Office declined to reopen appellant’s claim on the grounds that
she did not submit a corrected version of the 1998 report.
Appellant has not raised a relevant legal argument not previously considered by the
Office. In the July 28, 2008 decision, the Office had previously considered her implicit
argument, that the impartial medical examiner’s report was based on an improper factual
background. Prior to that decision appellant submitted medical records alleging that her
fibromyalgia did not develop until after her employment injury as well as a copy of the 1998
emergency room report which indicated that she developed fibromyalgia in 1985. The Board
finds that her contention is not new, as the Office previously considered this issue, and thus the
argument is not sufficient to require the Office to reopen her claim for consideration of the
merits.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for merit review,
pursuant to 5 U.S.C. § 8128(a), as she failed to comply with the requirements of section
10.606(b)8 of the Office’s regulations.

8

20 C.F.R. § 10.606(b).

5

ORDER
IT IS HEREBY ORDERED THAT October 6, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 14, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Holtsville, NY, Employer
__________________________________________

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

Docket No. 08-996
Issued: September 23, 2008

Case Submitted on the Record

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

JURISDICTION
On February 19, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 7, 2007 and January 30, 2008 merit decisions concerning
the termination of her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
September 5, 2007 on the grounds that she had no residuals of her February 2, 2005 employment
injury after that date.
FACTUAL HISTORY
The Office accepted that on February 2, 2005 appellant, then a 41-year-old tax examiner,
sustained employment-related lumbar and neck sprains and strains when she sat down in her

chair. She indicated that while sitting down she turned in the chair and it went all the way back
and jerked her back. She stopped work on February 2, 2005.
Appellant initially sought treatment from a chiropractor, Dr. James Lambert, who
diagnosed cervical and lumbosacral sprains and strains, cervicalgia and cervico-cranial
syndrome. Dr. Lambert indicated that appellant could not perform any work.1 In a November 9,
2005 report, Dr. Richard Pearl, an attending Board-certified neurosurgeon, described the
February 2, 2005 injury and stated that appellant had a right leg radiculopathy.
The findings of a May 5, 2006 magnetic resonance imaging test showed C4-5 and C5-6
disc bulges which impinged upon the thecal sac and straightening of the cervical spine probably
secondary to muscular spasm and/or strain. Dr. Samir Haddad, an attending Board-certified
neurologist, indicated that appellant visited him for the first time on February 10, 2006 and
complained of having back and neck pain since her February 2, 2005 injury. He diagnosed
cervicalgia and severe lumbar radiculopathy.
On August 22, 2006 Dr. Wayne Kerness, a Board-certified orthopedic surgeon, who
served as an Office referral physician, described appellant’s February 2, 2005 employment injury
and noted that she complained of right arm pain and had some limitation of back motion on
examination.2 He indicated that muscle strength was 5/5 in all extremities and that appellant was
able to move her neck and extremities in a normal fashion in unguarded moments. Dr. Kerness
concluded that appellant’s work-related cervical and lumbosacral sprains and strains had
resolved and that she had no residuals of her February 2, 2005 employment injury. He
determined that appellant could perform her regular job.
In a September 13, 2006 report, Dr. Haddad stated that appellant exhibited one trigger
point of tenderness on the right shoulder and one in the right C5 nerve distribution. On
October 16, 2006 he noted that appellant was totally disabled from work due to her February 2,
2005 employment injury. Dr. Haddad periodically treated appellant with trigger point injections
and generally indicated that her medical condition did not change.
The Office determined that there was a conflict in the medical evidence between
Dr. Kerness and Dr. Haddad regarding whether appellant continued to have residuals of her
February 2, 2005 injury and referred the case to Dr. Michael J. Katz, a Board-certified
orthopedic surgeon, for an impartial medical examination and opinion on this matter.
On May 8, 2007 Dr. Katz described the February 2, 2005 employment injury and
indicated that appellant complained of pain in her back when bending at the waist. He indicated
that on examination appellant had no tenderness about the cervical spine and had no
paravertebral muscle spasm. Appellant’s gait was normal and she had no muscle spasms in her

1

Appellant later sought treatment from another chiropractor, Dr. Larain Valenti, who provided similar diagnoses.

2

Appellant indicated that she sustained a low back injury in 1985 and a neck injury “years ago.”

2

lumbosacral spine. Dr. Katz noted that appellant had normal strength and sensation in the
cervical and lumbar spines. Regarding the examination, he stated:
“At no time did [appellant] complain of any painful condition. She asked for help
getting up from the examining table and prior to stating that she stated, ‘You do
not want me to fall.’ I helped the claimant up and it was clear that she was not
exerting any effort at all in order to get up on her own. The claimant makes
assertions that are quite vague with regard to her types of injury…. She makes no
specific radicular complaint at this time and in fact it appears that through the
treatments that were rendered her radicular involvement has improved…. The
diagnosis is a resolved diagnosed lumbosacral radiculopathy.
“The claimant had a causal relationship to event of February 2, 2005. The causal
relationship is by aggravation of preexisting lumbosacral problem. The
aggravation was certainly temporary and does not exist at this time. The claimant
is capable of working as a tax examiner without restrictions at this time. She is
not disabled at the current time.”
In a July 31, 2007 letter, the Office advised appellant of its proposed termination of her
compensation based on the opinion of Dr. Katz. It provided appellant 30 days to submit
additional evidence if she felt the termination was unwarranted. In an August 13, 2007 letter,
appellant, through her attorney, argued that she sustained injuries on February 2, 2005 which
were more serious than those accepted by the Office.
In a September 7, 2007 decision, the Office terminated appellant’s compensation
effective September 5, 2007 on the grounds that she had no residuals of her February 2, 2005
employment injury after that date. It determined that the weight of the medical evidence on this
matter rested with the well-rationalized opinion of Dr. Katz, the impartial medical specialist.3
In a September 12, 2007 report, Dr. Haddad stated that appellant continued to be totally
disabled due to her February 2, 2005 employment injury. He indicated that her cervical spine,
lumbar spine, right shoulder and headache problems were related to her February 2, 2005 injury.4
In a September 25, 2007 report, Dr. Pearl stated that appellant’s symptoms, including back and
right leg pain, were related to her employment injury as she did not previously report such
symptoms. He indicated that he last saw appellant on January 25, 2006.
In a January 30, 2008 decision, the Office affirmed its September 7, 2007 decision
indicating that the additional medical evidence submitted by appellant did not change the fact
that the weight of the medical evidence rested with the opinion of Dr. Katz.5

3

The Office terminated appellant’s compensation for both wage-loss and medical benefits.

4

Appellant also submitted routine treatment notes of Dr. Haddad.

5

Appellant submitted additional evidence after the Office’s January 30, 2008 decision, but the Board cannot
consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

3

LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,6 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.7 The Office
may not terminate compensation without establishing that the disability ceased or that it was no
longer related to the employment.8 The Office’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.9
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”10 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.11
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. In
order to prevail, appellant must establish by the weight of the reliable, probative and substantial
evidence that he or she had an employment-related disability which continued after termination
of compensation benefits.12
ANALYSIS
The Office accepted that on February 2, 2005 appellant sustained employment-related
lumbar and neck sprains and strains when she sat down in her chair and the back of the chair
went all the way back. It terminated her compensation effective September 5, 2007 on the
grounds that she had no residuals of her February 2, 2005 employment injury after that date. The
Office determined that the weight of the medical evidence on this matter rested with the wellrationalized opinion of Dr. Katz, a Board-certified orthopedic surgeon who served as an
impartial medical specialist.
The Office properly determined that there was a conflict in the medical opinion between
Dr. Haddad, appellant’s attending Board-certified neurologist, and Dr. Kerness, a Board-certified
6

5 U.S.C. §§ 8101-8193.

7

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

8

Id.

9

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

5 U.S.C. § 8123(a).

11

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

12

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

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neurosurgeon acting as an Office referral physician, on the issue of whether appellant continued
to have residuals of the February 2, 2005 employment injury.13 In order to resolve the conflict,
the Office properly referred appellant, pursuant to section 8123(a) of the Act, to Dr. Katz for an
impartial medical examination and an opinion on the matter.14
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Katz, the impartial medical specialist selected to resolve the
conflict in the medical opinion.15 The May 8, 2007 report of Dr. Katz establishes that appellant
had no residuals of her February 2, 2005 employment injury after September 5, 2007.
On May 8, 2007 Dr. Katz indicated that on examination appellant had no tenderness
about the cervical spine and had no paravertebral muscle spasm. Appellant’s gait was normal
and she had no muscle spasms in her lumbosacral spine. Dr. Katz noted that appellant had
normal strength and sensation in the cervical and lumbar spines. He concluded that appellant
had no residuals of her February 2, 2005 employment injury.
The Board has carefully reviewed the opinion of Dr. Katz and notes that it has reliability,
probative value and convincing quality with respect to its conclusions regarding the relevant
issue of the present case. Dr. Katz’ opinion is based on a proper factual and medical history in
that he had the benefit of an accurate and up-to-date statement of accepted facts, provided a
thorough factual and medical history and accurately summarized the relevant medical evidence.16
He provided medical rationale for his opinion by explaining that appellant had no objective signs
of employment-related lumbar and neck sprains and strains. Dr. Katz indicated that these
conditions were temporary and had since resolved. He explained appellant’s continuing
symptoms by indicating that they were due to nonwork-related conditions including preexisting
degenerative disease. Dr. Katz stated that appellant gave vague answers regarding her medical
condition and did not give maximum effort in the examination.17 For these reasons, the Office’s
termination of compensation benefits was clearly warranted on the basis of the evidence.
After the Office’s September 7, 2007 decision terminating appellant’s compensation
effective September 5, 2007, appellant submitted additional medical evidence which she felt
13

On August 22, 2006 Dr. Kerness concluded that appellant’s work-related cervical and lumbosacral sprains and
strains had resolved and that she had no residuals of her February 2, 2005 employment injury. In contrast
Dr. Haddad indicated on October 16, 2006 that appellant was totally disabled from work due to her February 2, 2005
employment injury.
14

See supra note 10 and accompanying text.

15

See supra note 11 and accompanying text.

16

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

17

Appellant argued that she sustained injuries on February 2, 2005 which were more serious than those accepted
by the Office. However, she did not submit sufficient medical evidence to establish this claim. Appellant submitted
reports of chiropractors which contained additional diagnoses but these reports do not constitute probative medical
evidence as the chiropractors did not diagnose a spinal subluxation as demonstrated by x-ray testing. See 5 U.S.C.
§ 8101(2); Jack B. Wood, 40 ECAB 95, 109 (1988). Some reports mentioned a right leg radiculopathy and
straightening of the cervical spine but there is no rationalized medical opinion in the record relating these conditions
to the February 2, 2005 injury.

5

showed that she was entitled to compensation after September 5, 2007 due to residuals of her
February 2, 2005 employment injury. Given that the Board has found that the Office properly
relied on the opinion of the impartial medical examiner, Dr. Katz, in terminating appellant’s
compensation effective September 5, 2007, the burden shifts to appellant to establish that she is
entitled to compensation after that date.
The Board has reviewed the additional evidence submitted by appellant and notes that it
is not of sufficient probative value to establish that she had residuals of her February 2, 2005
employment injury after September 5, 2007. Appellant submitted a September 12, 2007 report
in which Dr. Haddad stated that she continued to be totally disabled due to her February 2, 2005
employment injury. However, this report is of limited probative value as Dr. Haddad did not
provide any medical rationale in support of his opinion. In a September 25, 2007 report,
Dr. Pearl, an attending Board-certified neurosurgeon, stated that appellant’s symptoms were
related to her employment injury as she did not previously report such symptoms. However, this
opinion would not relate to appellant’s condition after September 5, 2007 as Dr. Pearl indicated
that he last saw appellant on January 25, 2006.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
September 5, 2007 on the grounds that she had no residuals of her February 2, 2005 employment
injury after that date.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 30, 2008 and September 7, 2007 decisions are affirmed.
Issued: September 23, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE NAVY,
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CHARLESTON NAVAL SHIPYARD,
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Charleston, SC, Employer
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___________________________________________ )
J.E., Appellant

Appearances:

Docket No. 07-674
Issued: July 5, 2007

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

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

JURISDICTION
On January 16, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 15, 2006 denying his claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether the Office properly denied appellant’s claim for a schedule award
for hearing loss.
FACTUAL HISTORY
On August 23, 2006 appellant, then a 64-year-old machinist, filed a claim for
compensation benefits alleging that he sustained permanent hearing loss while in the
performance of duty. He retired on July 2, 1993.

Appellant and the employing establishment submitted employing establishment
audiograms from October 13, 1960 to October 5, 1992.1 The audiograms revealed progressive
bilateral sensorineural hearing loss. The audiogram performed closest in time to appellant’s
July 1993 retirement was dated October 5, 1992. Testing at the frequency levels of 500, 1,000,
2,000 and 3,000 cycles per second (cps) revealed the following: right ear 5, 10, 25 and 50
decibels; left ear 5, 10, 15 and 50 decibels.
On August 23, 2006 appellant filed a claim for a schedule award.
The employing establishment submitted an undated report from Dr. Mark Hammett, a
Board-certified otolaryngologist and employing establishment physician, who reviewed
appellant’s medical records but did not perform a physical examination of appellant.
Dr. Hammett noted that appellant’s initial audiogram performed in October 1960 revealed no
significant hearing loss. He noted that subsequent audiograms revealed progressive hearing loss
across the range of normal speech and in high frequency ranges. Dr. Hammett compared an
entry audiogram dated October 13, 1960 and an exit audiogram dated October 5, 1992 which
was the last audiogram performed within nine months of appellant’s retirement in 1993. He
opined that appellant’s demonstrated bilateral hearing loss could be attributed to noise exposed
to at the employing establishment; however, he determined that appellant’s hearing loss was not
ratable in accordance with the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (5th ed. 2001) (A.M.A., Guides).
A statement of accepted facts dated September 13, 2006 noted that from September 1960
to 1964 appellant was a machinist apprentice, from 1964 to 1968 a machinist, from 1968 to 1974
a planner machinist and from 1974 to 1993, a planner estimator machinist. During these periods
of time, he was exposed to noise from grinders and pneumatic tools. Appellant advised that
since December 2002 he worked as a bridge crane installer and repairman and was exposed to
noise from pneumatic tools and hammers. He advised that he was given earplugs in 1964.
By letter dated September 19, 2006, the Office referred appellant to Dr. Robert Marwick,
a Board-certified otolaryngologist, for otologic examination and audiological evaluation. The
Office provided Dr. Marwick with a statement of accepted facts, available exposure information
and copies of all medical reports and audiograms.
Dr. Marwick performed an otologic evaluation of appellant on October 3, 2006 and
audiometric testing was conducted on the doctor’s behalf on the same date. Testing at the
frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed the following: right ear 5, 20, 50
and 70 decibels; left ear 5, 20, 50 and 60 decibels. Dr. Marwick determined that appellant
sustained moderate to profound bilateral sensorineural hearing loss related to or aggravated by
hazardous employment noise exposure. He advised that appellant sustained hearing loss of 35.6
percent on the right and 18.8 percent on the left and a binaural hearing loss of 21.6 percent.
Dr. Marwick noted that, when the October 13, 1960 baseline audiogram was compared to the
exit audiogram dated October 5, 1992, a threshold shift was noted in both ears and the pure tone
findings in 1992 exceeded the anticipated presbycusic curve of a 51 year old. He opined that
1

These audiograms appear to have been performed as part of an employing establishment hearing conservation
program.

2

based on the statement of facts the occupational noise level exposures were of sufficient intensity
and duration to have caused the decrease in question. Dr. Marwick recommended binaural
amplification.
In a decision dated October 10, 2006, the Office accepted appellant’s claim for bilateral
hearing loss due to work-related noise exposure.
On October 11, 2006 an Office medical adviser reviewed Dr. Marwick’s report and
compared the audiometric test of October 3, 2006 and an October 5, 1992 employing
establishment audiogram. The medical adviser based appellant’s schedule award on the
audiogram dated October 5, 1992 as this audiogram most approximated the hearing loss at the
time of retirement as it was performed nine months prior to his retirement. The medical adviser
noted that noise-induced hearing loss did not progress after removal from the source of the noise
and therefore the hearing loss that occurred after he was removed from the noise in 1993 was not
the result of noise-induced hearing loss causally related to his employment duties. The medical
adviser concluded that, in accordance with the fifth edition of A.M.A., Guides, appellant
sustained a zero percent bilateral sensorineural hearing loss. The medical adviser recommended
that hearing aids not be authorized.
On November 7, 2006 the Office requested that the medical adviser provide additional
rationale for his schedule award and recalculate his findings if appropriate.
On November 9, 2006 the medical adviser noted that the October 5, 1992 audiogram met
the criteria for a valid audiogram as it was seen by an audiologist and signed by a physician. He
referenced an attached summation regarding the failure of noise-induced hearing loss to progress
after the removal from the noise exposure. The attached summation noted that scientifically
noise-induced hearing loss was not considered to be progressive in nature as there are no
documented studies in the literature supporting progressive deafness due to noise and the
observed pattern of response to noise exposure was a loss followed by a partial or total
improvement upon removal from the noise.
By decision dated November 15, 2006, the Office determined that the hearing loss was
employment related but not severe enough to be considered ratable for purposes of a schedule
award. The Office also found that appellant was not entitled to hearing aids.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

3

uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.6 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.7 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.9 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.10
ANALYSIS
In the present case, the Office medical consultant did not calculate appellant’s schedule
award based on the audiogram dated October 3, 2006, which was performed on behalf of
Dr. Marwick. Rather, the Office medical consultant selected an earlier audiogram dated
October 5, 1992 taken by the employing establishment nine months prior to appellant’s
retirement.
Although the Office medical adviser may review any audiogram of record11 in
determining which one most accurately reflects appellant’s employment-related hearing loss, the
Office should not arbitrarily select one audiogram without explanation.12 The Board precedent
contemplates that the Office will give rationale for selecting one audiogram over another or, in
the alternative, it may have another evaluation made of appellant’s hearing in order to resolve the
inconsistency.13
4

Id.

5

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

6

Id.

7

Id.

8

Id.

9

Id.

10

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket
No. 01-1570 (issued August 13, 2002).
11

Federal (FECA) Procedural Manual, Part 3 -- Medical, Requirement for Medical Reports, Chapter 3.600.8(a)(2)
(September 1995).
12

See Joshua A. Holmes, 42 ECAB 231 (1990).

13

See John C. Messick, 25 ECAB 333 (1974).

4

The Office procedures also contemplate that, while noise-induced hearing loss does not
typically progress after exposure to noise ceases, an Office medical adviser or consultant will
provide a well-rationalized opinion for selecting one audiogram over another.14 In this case, the
medical adviser indicated that he selected the October 5, 1992 audiogram, taken nine months
prior to appellant’s retirement, because “NIHL [noise-induced hearing loss] does not progress
after removal from source of noise.” In an addendum, he noted that “[t]he October 5, 1992 EA
audiogram meets our criteria for a valid audiogram. See attached summation re[garding] failure
of NIHL to progress after removal from the noise exposure.” However, the doctor did not
provide any additional medical rationale other than this conclusory statement to explain why
such a shift in hearing loss would not be caused or aggravated by appellant’s employment even
after one is removed from the noise.15 Additionally, the Office medical adviser failed to address
why he selected the October 5, 1992 audiogram over the October 3, 2006 audiogram taken on
behalf of Dr. Marwick, the Office’s referral physician, in light of the fact that appellant’s
employment and noise exposure continued for an additional nine months after the October 5,
1992 audiogram. This is especially important because this additional exposure may have caused
additional hearing loss which was not accounted for in the October 5, 1992 audiogram.
Likewise, the medical adviser did not elaborate on why he did not recommend that hearing aids
be authorized, particularly in light of Dr. Marwick’s opinion that appellant have binaural
amplification.
Therefore, the medical evidence is insufficiently developed with regard to which
audiogram most accurately reflects appellant’s employment-related hearing loss.
Proceedings under the Act are not adversary in nature nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. 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
Consequently, the case must be remanded for the Office to obtain a supplemental report
from the Office medical adviser which provides a detailed reasoned medical opinion explaining
why such a shift in appellant’s hearing loss would not be caused or aggravated by appellant’s
employment even after he was removed from the noise, why he selected the October 5, 1992
audiogram as the record reveals that appellant had additional exposure to noise for

14

See id.

15

Stuart M. Cole, 46 ECAB 1011 (1995) (where medical consultant should provide a rationalized opinion as to
why such a shift in hearing loss would not be caused or aggravated by appellant’s employment even after one is
removed from the noise); Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001)
(medical reports not containing rationale on causal relationship are entitled to little probative value).
16

John W. Butler, 39 ECAB 852 (1988).

17

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.4
(October 1990).

5

approximately nine months thereafter prior to retiring in July 1993 and why he did not
recommend hearing aids. Following this and such other development as deemed necessary, the
Office shall issue a de novo decision.18
CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: July 5, 2007
Washington, DC

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

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

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

18

Robert F. Hart, 36 ECAB 186 (1984).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
EMERGENCY PREPAREDNESS &
RESPONSE, Alexandria, VA, Employer
__________________________________________

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

Docket No. 10-24
Issued: December 23, 2010

Case Submitted on the Record

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

JURISDICTION
On October 1, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated May 6, 2009 which found that his actual earnings
represented his wage-earning capacity. He also appealed a July 10, 2009 decision denying his
request for an oral hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues on appeal are: (1) whether appellant’s actual earnings as a yard foreman fairly
and reasonably represented his wage-earning capacity; and (2) whether the Office properly
denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On April 27, 2006 appellant, then a 51-year-old temporary full-time public assistance
project officer, injured his left knee while at work. The Office accepted the claim for a left knee

sprain, medial collateral ligament and temporary aggravation of left leg osteoarthritis. It
subsequently accepted contusion and acromioclavicular sprain of the left shoulder and upper
arm. Appellant worked intermittently thereafter. On July 6, 2007 he was placed on the periodic
rolls and receipt of wage-loss compensation.
Appellant was treated by Dr. James R. Gosey, Jr., a Board-certified orthopedic surgeon,
who diagnosed moderate to severe left knee arthritis. On July 31, 2006 Dr. Gosey performed a
left total knee arthroplasty and diagnosed left knee osteoarthritis. On August 25, 2006, he noted
that appellant sustained an injury by falling on his left hip and left shoulder. X-rays revealed a
joint separation of the left shoulder. Dr. Gosey returned appellant to work full time with
restrictions on October 2, 2006. On October 27, 2006 he noted appellant’s continued complaints
of left shoulder pain.
In a memorandum dated July 5, 2006, the Office noted that appellant was employed as a
temporary, full-time employee and his weekly pay rate was $385.73. In a July 12, 2006 letter,
the employing establishment’s human resource department confirmed appellant was a temporary
employee, his tour of duty was intermittent and he had worked 54 days in 2006.
On December 28, 2006 Dr. Gosey performed an open acromioclavicular joint repair of
the left shoulder and diagnosed third-degree acromioclavicular separation of the left shoulder.
On March 26, 2007 he removed the hardware from appellant’s left shoulder. On April 23, 2007
Dr. Gosey advised that he could return to work full time with restrictions; however the
employing establishment was unable to accommodate his restrictions.
On May 22, 2007 appellant was referred for vocational rehabilitation. In an August 21,
2007 plan, the rehabilitation counselor recommended a 90-day job placement effort and noted
that appellant could perform light physical work.
Appellant came under the treatment of Dr. Jeffrey Noblin, a Board-certified orthopedic
surgeon, from January 8 to February 14, 2008, for persistent left shoulder pain. He noted a
computerized tomography (CT) scan of the left shoulder performed on January 17, 2008 revealed
a coracoid fracture and recommended surgery. On February 14, 2008 Dr. Noblin performed
arthroscopy of the left shoulder with subacromial decompression followed by open excision of
bony coracoid. On February 8, 2008 vocational rehabilitation was closed as surgery made job
placement unfeasible.
Appellant submitted a July 22, 2008 work capacity evaluation from Dr. Noblin, who
advised that he could return to work full time with restrictions of sitting, walking, standing,
twisting, bending/stooping, squatting, kneeling, operating a vehicle, repetitive movements of the
wrists and elbows limited to eight hours a day, no reaching or reaching above the shoulder with
the left arm, pushing, pulling, lifting and climbing limited to eight hours a day and 10 pounds.
On August 27, 2008 appellant was again referred for vocational rehabilitation. In reports
dated October 12 and November 20, 2008 the rehabilitation counselor recommended a 90-day
job placement effort and noted that appellant could perform sedentary work with no lifting over
10 pounds, no overhead work and no heights. The rehabilitation counselor recommended
placement with a new employer.

2

In a December 3, 2008 report, Dr. Noblin diagnosed strain of the left acromioclavicular
ligament and recommended a follow-up appointment in six weeks.
In a January 23, 2009 Office telephone log, appellant advised that he accepted a position
with Easterly Fabrications, LLC as a yard foreman, working three days a week with a pay rate of
$300.00 a week. He indicated that he would not be performing any manual labor and his
employer would accommodate his work restrictions. Appellant submitted an undated letter from
Easterly Fabrication, which noted that he accepted a position as a yard foreman and his duties
included yard safety, contracts quality control and operation of heavy equipment but no manual
labor. The employer noted that the position was in compliance with his work restrictions. The
employer further noted that the position was part time, three days a week with pay of $300.00 a
week and that after a temporary 90-day period appellant would assume full-time status and
receive comparable pay and benefits. The tentative start date was February 2, 2009.
In a vocational rehabilitation status report dated March 11, 2009, the rehabilitation
specialist noted that appellant resumed work on February 9, 2009; however, a rehabilitation plan
was prepared if the current employment was not maintained. The rehabilitation plan noted the
objective of obtaining placement with a new employer in a position of a dispatcher with wages of
$320.00 a week or an estimator with average weekly wages of $560.00. These positions were
light duty and sedentary in conformance with appellant’s work restrictions.
In an April 3, 2009 vocational rehabilitation report, the rehabilitation counselor noted
speaking to appellant on January 30, 2009 and advised that he obtained a position with Easterly
Fabrications as a supervisor of employees performing marine maintenance work. Appellant
reported that the owner was a friend who accommodated his restrictions but his work was mostly
supervisory. He believed that the job would become permanent but he was not sure when that
would occur but he was currently working three days a week with a salary of $100.00 a day. On
February 19, 2009 the rehabilitation counselor noted speaking with appellant who indicated that
he was working full time and his main responsibility was overseeing other employees. On
April 14, 2009 the rehabilitation counselor informed appellant that he would be closing the
rehabilitation file because he had successfully obtained employment. Appellant reported that
everything was going well with his job and that he was glad to be off worker’s compensation.
In a rehabilitation status report dated April 22, 2009, the rehabilitation specialist noted
that appellant had returned to work and was employed for over 60 days with Easterly
Fabrications as a supervisor. The specialist indicated that appellant began his job on a part-time
basis but was now working full time and had wages of $500.00 a week.
By decision dated May 6, 2009, the Office found that appellant had been employed as a
supervisor/boat outfitting for Easterly Fabrications effective February 9, 2009 which was over 60
days and that the pay in that position of $500.00 a week was equivalent to the pay rate for the
position he held at the time of his injury; thus, no loss of wages occurred. The pay rate for the
position appellant held at the time of injury was $385.73. The Office concluded that his actual
earnings as a full-time supervisor/boat outfitting fairly and reasonably represented his wageearning capacity.

3

On June 12, 2009 appellant requested an oral hearing. He noted that he started work at
Easterly Fabrications on January 26, 2009 on a part-time basis for three days a week with wages
of $300.00. Appellant advised that the job never developed into a full-time position and he
worked from January 26 to March 15, 2009, when he stopped work due to right hip pain. He
also disputed his pay rate.
In a decision dated July 10, 2009, the Office denied appellant’s request for an oral
hearing. Appellant found that the request was not timely filed. Appellant was informed that his
case had been considered in relation to the issues involved, and that the request was further
denied for the reason that the issues in this case could be addressed by requesting reconsideration
from the office and submitting evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
Under section 8115(a) of the Federal Employees’ Compensation Act,1 wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity. Generally, wages actually earned are the best
measure of a wage-earning capacity and, in the absence of evidence showing that they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.2 The Office’s procedure manual provides that factors to be considered in
determining whether the claimant’s work fairly and reasonably represents his wage-earning
capacity include the kind of appointment, that is, whether the position is temporary, seasonal or
permanent and the tour of duty, that is, whether it is part time or full time.3 Further, a makeshift4
or odd-lot position designed for a claimant’s particular needs will not be considered suitable.5
The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Board’s decision in Albert C. Shadrick,6 has been codified by regulations at 20
C.F.R. § 10.403. Office procedures provide that a determination regarding whether actual
earnings fairly and reasonably represent wage-earning capacity should be made after an
employee has been working in a given position for more than 60 days.7 The amount of any

1

5 U.S.C. § 8115(a).

2

Hayden C. Ross, 55 ECAB 455 (2004).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (July 1997).
4

A makeshift position is one that is specifically tailored to an employees’ particular needs and generally lacks a
position description with specific duties, physical requirements and work schedule. See William D. Emory, 47
ECAB 365 (1996); James D. Champlain, 44 ECAB 438 (1993).
5

See, e.g., Michael A. Wittman, 43 ECAB 800 (1992).

6

5 ECAB 376 (1953).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (December 1993).

4

compensation paid is based on the wage-earning capacity determination and it remains
undisturbed until properly modified.8
ANALYSIS -- ISSUE 1
Appellant was full-time, temporary public assistance project officer, at the time of his
injury on April 27, 2006. The Office accepted appellant’s claim for sprain of the left knee,
medial collateral ligament, temporary aggravation of osteoarthritis of the left leg, contusion of
the left shoulder and upper arm and sprain of the left shoulder and upper arm acromioclavicular.
It authorized treatment and paid appropriate wage-loss compensation.
On July 22, 2008 Dr. Noblin advised that appellant could return to work full time with
restrictions. Based on these limitations, the Office developed a rehabilitation plan in which
appellant could perform sedentary work, no lifting over 10 pounds, no overhead work and no
heights. On January 23, 2009 appellant accepted a position with Easterly Fabrications as a yard
foreman, working three days a week with a pay rate of $300.00 a week. The Office reduced his
compensation effective May 6, 2009 based on his actual earnings as a yard foreman. The Board
finds, however, that this reduction was improper as the work appellant performed beginning
February 9, 2009 was a makeshift position not available in the open labor market.9
The actual earnings on which the Office based its wage-earning capacity determination
are unreliable as to appellant’s ability to earn wages in the open labor market under normal
employment conditions.10 While wages actually earned may be the best measure of an injured
worker’s capacity for employment such wages may not be based on sheltered employment.11
The job appellant obtained was performed for a company owned by friend of his who
accommodated his restrictions noting the job would be mostly supervisory and appears to consist
of work that was designed around his left knee sprain, osteoarthritis and shoulder injuries. The
owner noted that appellant was employed part time, with a tentative start date of February 2,
2009 for three days a week with a temporary appointment of 90 days after which time he could

8

See Sharon C. Clement, 55 ECAB 552 (2004).

9

Elbert Hicks, 49 ECAB 283 (1998).

10

See A.J., 61 ECAB ___ (Docket No. 10-619, issued June 29, 2010).

11

See Connie L. Potratz-Watson, 56 ECAB 316 (2005); see also M.H., 61 ECAB ___ (Docket No. 09-2349,
issued September 2, 2010) (where the Board found that the job appellant obtained was for a company owned by her
daughter and consisted of work designed around appellant’s ailments and involved a self-determined schedule of
miscellaneous clerical task that were changed frequently to accommodated appellant’s restrictions and demonstrated
that the job was make shift and not a position available in the open labor market).

5

assume full-time status. The employer noted that he reviewed appellant’s work restrictions and
that the position was not in violation of the limitations. The record reveals that appellant was
working a full-time permanent position when he was injured.12 There are also special
circumstances giving rise to his employability in this case. It cannot be stated that the wages
paid were not the result of a charitable motive or sympathy on the part of the friend.13 The
personal relationship between the employer and employee in this case also makes the nature of
the earnings suspect. Appellant did not sell his services in the competitive labor market; the
facts of the employment were distorted by the close relationship of this employer to the injured
employee.14
Appellant’s employer provided only a vague description of the duties of a yard foreman
noting miscellaneous tasks including sedentary duties, no manual labor, responsible for ensuring
“yard safety and quality control of existing and future contracts” and operating heavy equipment.
The Office failed to obtain a detailed description of the specific sedentary tasks to be performed
and the type of heavy equipment he was to operate and how often. Similarly, the employer did
not provide a set schedule for work and noted that the position began as temporary part-time
appointment for 90 days when appellant’s date-of-injury position was full time. The employer
represented that he reviewed the work restrictions from appellant’s physicians and assured him
that he would not be violating his restrictions. The position appears to be made to accommodate
appellant’s restrictions. Despite these accommodations, he could not perform essential functions
of the position as the record reveals he stopped work on March 15, 2009.
The Board further notes that the reports of the rehabilitation counselor do not evidence
any other contact with the employer other than the undated job offer from the owner. On
January 30, 2009 appellant advised the rehabilitation counselor that “the owner is a friend of his
who accommodates his restrictions but his work is mostly supervisory work.” This statement
gives rise to the inference of sheltered employment. As noted, wages actually earned are the best
measure of an injured worker’s capacity for employment such wages may not be based on
sheltered employment.15 On April 22, 2009 the rehabilitation specialist noted that appellant had
returned to work and was employed for over 60 days with Easterly Fabrications as a supervisor.
The rehabilitation specialist further indicated that he began his job on a part-time basis but as of
February 19, 2009 he was full time; however, there is no evidence of record from the employer
verifying this information or that he remained employed at the time the Office’s May 6, 2009
decision.
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.7(a) (October 2009) (provides that in determining whether a return to alternative
employment fairly and reasonably represents the claimant’s employee’s wage-earning capacity, the Office should
consider whether the kind of appointment and tour of duty are at least equivalent to those of the job held on date of
injury; unless they are, the claims examiner may not consider the work suitable).
13

Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation, Chapter 82 (2006), citing Modern Equip.
Co. v. Industrial Comm n, 247 Wis. 517, 20 N.W.2d 121 (1945) where the injured worker was the brother of his
employer.
14

See M.H., supra note 11.

15

Supra note 11.

6

The Office erred by accepting his actual earnings in the yard foreman position as the best
measure of his wage-earning capacity.16 The May 6, 2009 wage-earning capacity determination
will be reversed.
CONCLUSION
The Board finds that the Office improperly found that the position of yard foreman
properly represented appellant’s wage-earning capacity as of May 6, 2009.17
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated May 6, 2009 is reversed.
Issued: December 23, 2010
Washington, DC

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

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

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

16

Id. See also Afegalai L. Boone, 53 ECAB 533 (2002).

17

Due to the disposition of this case, the second issue, pertaining to the denial of appellant’s hearing request, is
rendered moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, WARREN ANNEX,
Warren, OH, Employer
__________________________________________

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Appearances:
John P. Lutseck, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1520
Issued: January 25, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 20, 2006 appellant, through his attorney, filed a timely appeal from a May 19,
2006 merit decision of a hearing representative of the Office of Workers’ Compensation
Programs affirming a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than a 10 percent impairment of his right lower
extremity.
FACTUAL HISTORY
On September 22, 2003 appellant, then a 46-year-old letter carrier, filed a claim for a
traumatic injury occurring that date when he injured his right knee while loading mail in a truck.
The Office accepted his claim for a right knee medial meniscus tear. Appellant stopped work on
September 22, 2003. On January 2, 2004 Dr. Thomas B. Jones, Jr., a Board-certified orthopedic
surgeon, performed a partial medial meniscectomy and an ablation chondroplasty of the medial

femoral condyle of the right knee. On April 30, 2004 he performed a chondroplasty of the right
medial femoral condyle. Appellant returned to limited-duty employment on July 1, 2004 and to
his regular employment on September 2, 2004.
On September 12, 2004 appellant filed a claim for a schedule award. He submitted a
report dated September 30, 2004 from Dr. John J. Vargo, an osteopath, who discussed his
continued complaints of pain in the inferior medial pole of the patella. Dr. Vargo measured
range of motion of the right knee as 0 degrees extension, 110 degrees flexion and 0 degrees
angulation valgus distal to knee. He found medial grapping of the right knee and no atrophy on
the right versus the left side. Applying the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides), Dr. Vargo found that
appellant had a 10 percent impairment of the right lower extremity due to loss of flexion and a 10
percent impairment due to 0 degrees valgus distal to the knee, which he added to find a 20
percent impairment due to loss of range of motion.1 Dr. Vargo further found a seven percent
impairment due to laxity of the medial collateral ligament.2 He determined that appellant had a
two percent right lower extremity impairment due to his partial medial meniscectomy.3
Dr. Vargo combined the impairment percentages due to loss of range of motion, collateral
ligament laxity and the partial medial meniscectomy to find a 27 percent impairment of the right
lower extremity. Dr. Jones, in a note dated November 12, 2004, concurred with the impairment
rating.
An Office medical adviser reviewed Dr. Vargo’s report on December 19, 2004 and
applied the A.M.A., Guides to his findings. He found that appellant had no impairment due to
loss of extension and a 10 percent impairment due to loss of flexion.4 The Office medical
adviser further found one inch of calf atrophy for a three percent impairment.5 He determined
that appellant had a seven percent impairment for mild medial collateral ligament laxity and a
two percent impairment due to his partial medial meniscectomy.6 The Office medical adviser
noted that Table 17-2 on page 526 of the A.M.A., Guides prohibited combining impairments due
to diagnosis-based estimates, atrophy and range of motion. He used appellant’s 10 percent
impairment due to loss of flexion as the basis for the impairment rating in order to maximize the
amount of the schedule award. The Office medical adviser noted that appellant reached
maximum medical improvement on September 22, 2004.
By decision dated January 13, 2005, the Office granted appellant a schedule award for a
10 percent impairment of the right lower extremity. The period of the award ran for 28.80 weeks
from September 30, 2004 to April 10, 2005.
1

A.M.A., Guides at 537, Table 17-10.

2

Id. at 546, Table 17-33.

3

Id.

4

Id. at 537, Table 17-10.

5

Id. at 530, Table 17-6. The Board notes, however, that appellant has no calf atrophy on the right side.
Dr. Vargo measured calf circumference on the right as 17¾ inches and on the left as 16¼ inches.
6

Id. at 546, Table 17-33.

2

On January 18, 2005 appellant, through his attorney, requested an oral hearing.7 On
April 21, 2006 counsel requested a review of the written record in lieu of an oral hearing. In a
decision dated May 19, 2006, the Office hearing representative affirmed the January 13, 2005
decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act8 and its
implementing federal regulation,9 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides (5th ed. 2001), as the uniform standard
applicable to all claimants.10 Office procedures direct the use of the fifth edition of the A.M.A.,
Guides, issued in 2001, for all decisions made after February 1, 2001.11
The A.M.A., Guides provides for three separate methods for calculating the impairment
of an individual: anatomic, functional and diagnosis based.12 The anatomic methods involves
noting changes, including muscle atrophy, nerve impairment and vascular derangement, as found
during physical examination.13 The diagnosis-based method may be used to evaluate
impairments caused by specific fractures and deformities, as well as ligamentous instability,
bursitis and various surgical procedures, including joint replacements and meniscectomies.14 In
certain situations, diagnosis-based estimates are combined with other methods of assessment.15
The functional method is used for conditions when anatomic changes are difficult to categorize
or when functional implications have been documented and includes range of motion, gait
derangement and muscle strength.16 The evaluating physician must determine which method
best describes the impairment of a specific individual based on patient history and physical
examination.17 When uncertain about which method to use, the evaluator should calculate the
7

In a progress report dated December 13, 2005, Dr. Jones diagnosed post-traumatic arthritis due to appellant’s
medial meniscus tear and noted that his condition was deteriorating.
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

20 C.F.R. § 10.404(a).

11

See FECA Bulletin No. 01-5, issued January 29, 2001.

12

A.M.A., Guides at 525.

13

Id.

14

Id.

15

Id. The A.M.A., Guides specifically excludes combining diagnosis-based estimates with range of motion and
ankylosis deficits. A.M.A., Guides 526, Table 17-2.
16

Id. at 525, Table 17-1.

17

Id. at 548, 555.

3

impairment using different alternatives and choose the method or combination of methods that
give the most clinically accurate impairment rating.18 If more than one method can be used, the
method that provides the higher impairment rating should be adopted.19
ANALYSIS
The Office accepted that appellant sustained a medial meniscus tear of the right knee due
to a September 22, 2003 employment injury.
Dr. Jones performed a partial medial
meniscectomy and chondroplasty of the medial femoral condyle of the right knee on January 2,
2004 and a second chondroplasty of the right medial femoral condyle on April 30, 2004.
On September 12, 2004 appellant filed a claim for a schedule award. In an impairment
evaluation dated September 30, 2004, Dr. Vargo noted appellant’s symptoms of pain in the
inferior medial pole of the patella. On physical examination, he measured range of motion of
110 degrees of flexion, 0 degrees extension and 0 degrees angulation valgus distal to knee.
Citing Table 17-10 on page 537 of the A.M.A., Guides, Dr. Vargo found that appellant had 10
percent impairment of the right lower extremity due to loss of flexion and a 10 percent
impairment due to 0 degrees valgus distal to the knee, for a 20 percent total impairment due to
loss of range of motion. He next asserted that he had a seven percent impairment due to medial
collateral ligament laxity and a two percent impairment due to his partial medial meniscectomy
according to Table 17-33 on page 546 of the A.M.A., Guides. Dr. Vargo combined his
impairment determinations to find a 27 percent right lower extremity impairment. The Board
notes, however, that Table 17-2 on page 526 of the A.M.A., Guides prohibits combing diagnosisbased estimates such as for a meniscectomy and collateral ligament laxity with an impairment
due to loss of range of motion. Consequently, Dr. Vargo’s calculation of the percentage of
impairment is not in accordance with the A.M.A., Guides.
On December 19, 2004 an Office medical adviser reviewed Dr. Vargo’s report. The
Office medical adviser determined that appellant had no loss of extension and that 110 degrees
of flexion constituted a 10 percent impairment.20 The Office indicated that appellant had a three
percent impairment due to one inch of calf atrophy. However, as Dr. Vargo measured calf
circumference on the right as 17¾ inches and on the left as 16¼ inches, appellant does not have
calf atrophy on the right side.21 The Office medical adviser found that he had a seven percent
impairment for mild medial collateral ligament laxity and a two percent impairment due to his
partial medial meniscectomy.22 He properly noted that the A.M.A., Guides at Table 17-2 on
page 526 provided that impairments due to diagnosis-based estimates, atrophy and range of
motion could not be combined and thus, appellant was only entitled to an award based on one of
these three evaluation methods. The Office medical adviser selected range of motion as it
18

Id. at 526.

19

Id. at 527, 555.

20

Id. at 537, Table 17-10.

21

Id. at 530, Table 17-6.

22

Id. at 546, Table 17-33.

4

provided the greatest award.23 He concluded that appellant had a 10 percent right lower
extremity impairment due to loss of flexion. The Board notes, however, that Dr. Vargo found
that appellant had a 10 percent impairment due to loss of flexion and a 10 percent impairment
due to 0 degrees of angulation valgus remote to knee. According to Table 17-10 on page 527 of
the A.M.A., Guides, 0 degrees of valgus constitutes a 10 percent lower extremity impairment.24
Adding the 10 percent impairment due to 0 degrees valgus with the 10 percent impairment due to
loss of flexion equals a 20 percent lower extremity impairment.25 The Board finds that appellant
has a 20 percent impairment of the right lower extremity.
On appeal appellant contends that he is entitled to a schedule award for a 27 percent right
lower extremity impairment. As discussed, however, Dr. Vargo’s finding of a 27 percent
impairment is based on an improper application of the A.M.A., Guides, as he combined
impairments for loss of range of motion and diagnosis-based estimates.26
CONCLUSION
The Board finds that appellant has a 20 percent impairment of the right lower extremity.

23

If more than one method to assess impairment can be used, the method that provides the higher impairment
rating should be adopted. Id. at 527, 555.
24

Table 17-10 on page 527 of the A.M.A., Guides provides that 3 to 10 degrees of valgus is normal.

25

The A.M.A., Guides provides that impairments due to loss of range of motion are added. A.M.A., Guides
at 533.
26

Id. at 526, Table 17-2.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 19, 2006 is affirmed as modified.
Issued: January 25, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 13-473
Issued: June 19, 2013

Case Submitted on the Record

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

JURISDICTION
On December 26, 2012 appellant filed a timely appeal of a December 7, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) concerning an overpayment. 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.2
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment in compensation
in the amount of $726.96 had been created because appellant received compensation after
returning to work on September 4, 2012; and (2) whether OWCP properly denied waiver of
recovery of the overpayment as it found appellant to be at fault in the creation of the
overpayment.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence in her appeal to the Board. However, the Board
may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal appellant does not contest the amount of the overpayment or that she has been
found at fault in the creation of the overpayment. She contends that OWCP erred in issuing its
decision on December 7, 2012 as she had paid the overpayment in full following the preliminary
determination of overpayment.
FACTUAL HISTORY
On May 22, 2012 appellant,3 then a 32-year-old social science employee, filed a
traumatic injury claim alleging that she sustained a left knee sprain during a training exercise.
OWCP accepted the claim for left medial meniscus tear and left anterior cruciate ligament tear
and authorized left knee arthroscopic surgery, which occurred on July 31, 2012. It also accepted
appellant’s recurrence of disability claim due to her July 31, 2012 surgery.
On September 4, 2012 appellant accepted an offer of light-duty work and returned to
work that day.
On September 6, 2012 appellant filed a claim for wage-loss compensation for the period
August 26 to September 8, 2012.
The record contains a computer printout dated September 17, 2012 indicating a payment
of wage-loss compensation for the period August 26 to September 8, 2012 in the amount of
$2,054.09.
On October 12, 2012 OWCP issued a preliminary determination that appellant had
received an overpayment of $726.96 because she returned to work on September 4, 2012 and
continued to receive compensation for temporary total disability through September 8, 2012. An
accompanying worksheet indicated that appellant was paid $2,054.09 in compensation from the
compensation check dated September 17, 2012. OWCP calculated that appellant was overpaid
by $726.96, based on her return to work. It concluded that appellant was at fault because she
knowingly provided false information when she filed a CA-7 form dated September 6, 2012
claiming wage-loss compensation for the period August 26 to September 8, 2012. OWCP
requested that she provide financial information. Appellant did not respond.
By decision dated December 7, 2012, OWCP determined that appellant received an
overpayment for the period September 4 to 8, 2012 in the amount of $726.96 for which she was
at fault. It noted that she had not responded to the preliminary determination with the requested
financial information and requested full payment within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
may not receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.4 20 C.F.R. § 10.500 provides that compensation for wage loss due to disability is
3

The record contains evidence that appellant’s married name is Byram.

4

5 U.S.C. § 8116(a).

2

available only for any periods during which an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.
ANALYSIS -- ISSUE 1
Appellant returned to work on September 4, 2012. She filed claims for wage-loss
compensation and received compensation benefits for total disability through September 8, 2012.
Any wage-loss compensation appellant received from OWCP after September 3, 2012
constitutes an overpayment of compensation.5 The record shows that OWCP paid her wage-loss
compensation until September 8, 2012. Thus, appellant received an overpayment in the amount
of $726.96. The Board will affirm the fact and amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA6 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA of would be against equity and
good conscience.”7 Waiver of an overpayment is not permitted unless the claimant is without
fault in creating the overpayment.8
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault
if he or she has done any of the following: (1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.9
ANALYSIS -- ISSUE 2
The record reveals that appellant accepted a disability payment which included the period
September 4 to 8, 2012 and that she returned to work on September 4, 2012. OWCP found that
appellant received an overpayment of compensation and that she was at fault. The finding of
fault by OWCP was made on the making of an incorrect statement based on her filing a claim for
wage-loss compensation on September 6, 2012 for the period August 26 to September 8, 2012,
which included compensation following her return to work. The Board concurs with this
finding. At the time appellant filed her claim for wage-loss compensation on September 6, 2012
she had returned to work and that she was not entitled to wage-loss compensation following her
return to work on September 4, 2012. As noted above, the record establishes that she returned to
work on September 4, 2012, filed a claim for wage-loss compensation on September 6, 2012 for
the period August 26 to September 8, 2012 and received wage-loss compensation for the period
5

See A.L., Docket No. 09-1529 (issued January 13, 2010); Franklin L. Bryan, 56 ECAB 310 (2005).

6

5 U.S.C. § 8129(b).

7

J.K., Docket No. 08-1761 (issued January 8, 2009); Joan Ross, 57 ECAB 694 (2006); Desiderio Martinez, 55
ECAB 245 (2004).
8

R.H., Docket No. 09-1981 (issued June 11, 2010); W.P., 59 ECAB 514 (2008); Joan Ross, id.

9

20 C.F.R. § 10.433.

3

requested. Since appellant filed a claim for wage-loss compensation which included days after
she had returned to work, she made a statement that she knew was materially incorrect. Thus,
OWCP properly found her to be at fault and thus denied waiver of recovery of the overpayment.
On appeal appellant argues that OWCP erred in the issuance of the overpayment decision
as she had remitted a check to OWCP following the preliminary determination of an
overpayment. The Board is limited to reviewing evidence in the record at the time of OWCP’s
decision. As this evidence was not in the record, as of December 7, 2012, the Board cannot
consider it.10
CONCLUSION
The Board finds that an overpayment of $726.96 was created and that OWCP properly
denied waiver of recovery as appellant was not without fault in creating the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 7, 2012 is affirmed.
Issued: June 19, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

Supra note 2.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE ARMY, PETERSON
AIR FORCE BASE, Colorado Springs, CO,
Employer
__________________________________________
Appearances:
John S. Evangelisti, Esq., for the appellant
Miriam D. Ozur, for the Director

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Docket No. 08-1756
Issued: September 23, 2009

Case Submitted on the Record

ORDER GRANTING PETITION FOR RECONSIDERATION
AND REAFFIRMING PRIOR DECISION
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On June 11, 2008 appellant filed an application seeking review of a May 29, 2008 merit
decision of the Office of Workers’ Compensation Programs denying her emotional condition
claim as untimely filed. The appeal was docketed as No. 08-1756. On February 11, 2009 the
Board issued a decision and order in the above-entitled matter, affirming the Office’s May 29,
2008 decision.1 The Board found that the statute of limitations on appellant’s claim of
depression began to run on December 17, 2003, the date of her last exposure to employment, As
she did not file her claim until January 24, 2007, it was outside the three-year limitation period.
On March 11, 2009 appellant, through her representative, filed a petition for
reconsideration. The Director of the Office was served with a copy of appellant’s petition. On
April 30, 2009 the Director submitted a response to appellant’s petition.
The Board has duly considered the matter and finds that appellant’s petition for
reconsideration should be granted; however, the February 11, 2009 decision is reaffirmed.

1

Docket No. 08-1756 (issued February 11, 2009).

The Board found that appellant had not filed a claim for depression resulting from
conditions of her employment as described in her Equal Employment Opportunity (EEO) claim
within three years of December 17, 2003. Therefore, it was untimely filed. Appellant’s
representative contends that his September 18, 2006 letter to the Office in appellant’s traumatic
injury claim (File No. xxxxxx084) contained “words of claim,” which tolled the statute of
limitations. The Board is not persuaded by counsel’s argument on reconsideration.
The Board has long addressed the requirements for filing a “claim” under the Federal
Employees’ Compensation Act. It is well established that the Office may not purport to
adjudicate and deny a claim before any claim has been filed. Communications from an
employee which do not amount to a claim or seek present or past due compensation may not be
treated as a claim and rejected on that basis.2 However, a claim for compensation need not be
filed on any particular form. A claim may be made by filing any paper containing words which
reasonably may be construed or accepted as a claim. Notice without words of claim cannot, by
any permissible construction, toll the running of the statutory period for filing a written claim for
disability benefits.3 Whether a particular document contains words of claim and other essential
information for a valid claim depends upon the circumstances under which the document is
presented. The Office’s procedures provide that, while certain forms constitute claims for
compensation for disability, the Office should accept as a claim, for the purpose of determining
timeliness, any written instrument from the person claiming benefits, or someone acting on the
person’s behalf from which the substance of a claim can be reasonably deduced.4
Counsel relies on his September 18, 2006 letter to the Office in File No. xxxxxx084,
which was a response to the Office’s proposed notice of termination of benefits in that claim.
The September 18, 2006 letter states, in relevant part:
“Where these psychological stressors are compounded by the accepted injury,
they are compensable as a consequential injury.
Dr. Tobey notes that
[appellant’s] ‘current pain complaints are significantly related to her ongoing
psychological stressors which are not related to the work injury of
October 19, 1999.’ Please accept chronic pain syndrome as a consequential
injury.
“Where the work injury and discrimination based on national origin and race are
inextricably inter-related discrimination must be considered as a job factor.
2

John Berestecki, 2 ECAB 36 (1948); Charlie Denman, 1 ECAB 105 (1948).

3

The Board has held that notices, such as narrative statements, forms other than CA-1 and CA-2 forms, or
memoranda, which are submitted within the applicable time period but do not contain words of claim are
insufficient forms of notice. Robert E. Kimsey, 40 ECAB 762 (1989). See also Gary W. Hudiburgh, Jr., 37 ECAB
423 (1986) (where the Board found a letter from appellant to the employing establishment, which described his
injury and medical treatment and requested administrative discharge, did not contain any words of claim under the
Act); Richard C. Cruson, 34 ECAB 1714 (1983) (where the Board found that an employing establishment form
which provided notice of injury to the employing establishment on the date of injury did not contain words of
claim).
4

See William F. Dotson, 47 ECAB 253 (1995). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Time, Chapter 2.801.4(b) (March 1993).

2

Clearly the Second Opinion and Referee opinions relate to the belief that
[appellant’s] work problems, which gave rise to her EEO Complaint, are
aggravating factors. [She] received a favorable decision from Administrative
Law Judge Meyers on May 24, 2004 (copy enclosed). Judge Meyers found that
[appellant’s] on the job injuries ‘are exacerbated by emotional distress caused by
the Agency’s illegal discrimination in 2001.... The stress and pain continued for
about 2½ years, from the non-selection to the Hearing on May 4, 2004.’ at. p. 10.
“Please accept depression due to the on the job injury and the matters raised in her
EEO Complaint. Please accept discrimination as a causal factor in [appellant’s]
pain syndrome.”
The Board finds that the contents of the September 18, 2006 letter do not constitute
words of claim for a new injury.
The Board is unable to conclude that the Office should have reasonably deduced the
substance of a claim from the contents of the September 18, 2006 letter. The representative’s
request that the Office accept depression as a consequence of appellant’s traumatic injury is, by
definition, not a claim for a new injury.5 Further, his reference to “matters raised in [appellant’s]
EEO complaint” is vague and uninformative and insufficient to state a claim. As the EEO
complaint is not included in the record, the Board can only speculate as to the allegations
contained therein. Appellant has not shown sufficient cause for the Office to proceed with
processing and adjudicating a claim, as required by Office procedures.6 Moreover, the EEO
claim was not a claim for benefits under the Act.7
Appellant’s representative cites William F. Dotson,8 as support for his contention that the
September 18, 2006 letter satisfied the filing requirement. However, the facts in Dotson are
distinguishable from the facts of this case. In Dotson, where CA-7 and CA-8 forms were signed
and completed by the claimant’s attorney prior to the expiration of the statute of limitations, the
Board found that the employee timely filed a claim. In the instant case, appellant did not submit

5

See, e.g., Charles W. Downey, 54 ECAB 421 (2003).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3 (March 1993).

7

5 U.S.C. § 8121 provides that compensation may be allowed only if an individual or someone on her behalf
makes a claim therefore. The claim shall: (1) be made in writing within the time specified by section 8122 of this
title; (2) be delivered to the office of the Secretary of Labor or to an individual whom the Secretary may designate
by regulation, or deposited in the mail properly stamped and addressed to the Secretary or her designee; (3) be on a
form approved by the Secretary; (4) contain all information required by the Secretary; (5) be sworn to by the
individual entitled to compensation or someone on her behalf; and (6) except in case of death, be accompanied by a
certificate of the physician of the employee stating the nature of the injury and the nature and probable extent of the
disability. See also 20 C.F.R. § 10.101(a), which provides in pertinent part that an employee who has a disease
which she believes to be work related, or a representative, must give notice of the condition in writing to the
employer. The Board notes that the record does not reflect that appellant or her representative submitted a copy of
the September 18, 1006 letter to the employing establishment as required.
8

Supra note 4.

3

any form to the Office within the required period establishing her intent to file a claim. The
September 18, 2006 letter of counsel is distinguishable from the Office forms in Dotson.
Counsel compares the instant case to Dale M. Newbigging,9 in which the Board found
that the Office improperly rejected the employee’s claim without considering whether certain
relevant letters contained words of claim. However, the facts of Newbigging are inapposite to
the facts at hand. In Newbigging, the employee’s father wrote to the Office regarding the
disability of his son, a former postmaster. The Office responded, advising him to complete and
submit an enclosed claim form. Upon submission of a claim for occupational disease, it was
denied as untimely filed. The Board found that the case was not in posture for decision. It noted
that the Office had limited consideration to the CA-2 form without any analysis of whether the
letters from the employee’s father could reasonably be construed as a claim. In this case, the
May 29, 2008 decision of the Office hearing representative considered the September 18, 2006
letter and determined that appellant had failed to provide actual written notice of her emotional
condition injury within three years of her last exposure.
Similarly, the facts of Marion L. Shafer,10 cited by counsel, shed little light on the instant
case. In Shafer, the employee submitted a document alleging work-related noise exposure and
correspondence which reflected intent to file a claim. Under the circumstances of that case, the
Board found that a claim was timely filed. In this case, appellant did not make specific
allegations, but rather referred generally to her EEO complaint, which is not of record.
Moreover, there is no correspondence corroborating an intent to file a separate emotional
condition claim within the statutory period.
Whether a particular document contains words of claim or other essential information for
a valid claim depends upon the circumstances under which the document is presented. In this
case, the September 18, 2006 letter was submitted in response to a pretermination notice in
appellant’s traumatic injury case. The context of the submission of the letter, including counsel’s
reference to matters raised in the EEO complaint, was a clear attempt to persuade the Office
from terminating her compensation benefits under that claim. Appellant’s representative
recognized that he was advised by the Office in an October 11, 2006 decision to file a Form
CA-2 claim form in order to address any issues contained in his client’s EEO complaint.
Therefore, he was made aware that the Office did not consider the contents of the September 18,
2006 letter sufficient to state a new occupational disease claim. Counsel did not follow the
Office’s advice in a timely manner.
Appellant argues that the August 25, 2004 EEO decision, which determined that she had
established a prima facie case of discrimination against the employing establishment, established
a compensable employment factor. However, the underlying issue is not whether the claimant
established harassment or discrimination under EEO standards. Rather, the issue is whether
appellant, under the Act, has submitted sufficient words of claim to toll of the statute of
limitations. The Board finds that she has not done so. The Board finds that appellant’s claim for
compensation is barred by the applicable time limitation provisions of the Act.
9

44 ECAB 551 (1993).

10

27 ECAB 130 (1975).

4

IT IS HEREBY ORDERED THAT the petition for reconsideration be granted. The
Board’s February 11, 2009 decision is reaffirmed for the reasons stated.
Issued: September 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5