United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
New York, NY, Employer
__________________________________________

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

Docket No. 07-1465
Issued: November 20, 2007

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 May 7, 2007 appellant filed a timely appeal from the March 7, 2007 decision of the
Office of Workers’ Compensation Programs denying modification of a schedule award for
hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant established that he has increased hearing loss causally
related to the accepted factors of his federal employment.
FACTUAL HISTORY
On May 14, 1980 appellant, then a 36-year-old retired special agent, filed a claim for
binaural hearing loss arising out of his exposure to firearm noise from 1970 to 1976 in the
performance of duty. His claim was accepted and, on January 7, 1986, the Office issued a
schedule award for 47 percent binaural hearing loss. On June 15, 1989 appellant was awarded

additional compensation for a 1 percent binaural hearing loss, bringing his compensated hearing
loss to 48 percent.
On August 23, 2004 appellant requested an increased schedule award.1
On
September 28, 2004 the Office informed him that his claim could not be evaluated without
current medical evidence.
On October 19, 2004 Dr. Dan Moskowitz, a Board-certified otolaryngologist, stated that
appellant had a history of exposure to firearms in the course of his federal duties. He reported
that appellant had complained of hearing loss over many years and had bilateral tinnitus.
Dr. Moskowitz stated that his examination revealed some cerumen impactions bilaterally and
confirmed severe bilateral sensorineural hearing loss with marked discrimination changes. He
recommended hearing aids. On November 27, 2004 Dr. Moskowitz stated that appellant’s
hearing loss and tinnitus appeared to be correlated to his exposure to firearm noise in his federal
employment. He stated that audiometric tests performed on October 19, 2004 revealed severe
profound hearing loss beyond the 48 percent for which he had previously been compensated.
Appellant denied any history of noise exposure after leaving federal employment.
The Office provided the Office medical adviser, Dr. Ira Rothfeld, a Board-certified
otolaryngologist, with Dr. Moskowitz’s reports and audiometric tests. On March 2, 2005
Dr. Rothfeld stated that he agreed that appellant’s hearing had deteriorated, but questioned the
reliability of the October 19, 2004 audiogram, which showed a difference of more than 12
decibels between the pure tone and speech recognition scores. Dr. Rothfeld concurred with an
audiologist who had reviewed appellant’s case 14 years previously, who stated that noiseinduced hearing loss will not progress in the absence of further acoustic trauma. He stated that
appellant’s increased hearing loss was likely the result of presbycusis, an aging process affecting
the auditory nerves. Dr. Rothfeld noted that Dr. Moskowitz offered no etiology for appellant’s
increased hearing loss and opined that there was no causal relationship between the factors of
appellant’s federal employment and the subsequent deterioration of his hearing. He stated that
there was therefore no need to calculate hearing loss percentage.
By decision dated March 15, 2005, the Office denied appellant’s request for an increased
schedule award based on Dr. Rothfeld’s opinion.
On March 26, 2005 appellant requested an oral hearing. On June 22, 2005 the Office
hearing representative found that the case was not in posture for a hearing and vacated the
March 15, 2005 decision. He found that the Office should have referred appellant for a second
opinion because the recent audiograms revealed increased hearing loss.
The Office referred appellant to Dr. Michael Scherl, a Board-certified otolaryngologist,
for a second opinion examination. On November 11, 2005 Dr. Scherl conducted a review of
appellant’s medical history, in which he noted that appellant’s 1981 audiometric testing provided
reliable evidence of mild sensorineural hearing loss in the low and mid frequency ranges and
severe loss in the high frequency ranges. He stated, however, that audiometric testing from 1983
and 1985, which revealed significant progression in hearing loss, might not be accurate because
1

Appellant submitted a claim for compensation, Form CA-7, on December 17, 2004.

2

there were inconsistencies between pure tone and speech reception thresholds. A 1988
audiometric test showed moderate sensorineural loss up to 2,000 cycles and severe loss above
2,000 cycles. Dr. Scherl stated that the audiometric examination performed in his office showed
severe bilateral sensorineural hearing loss, especially above 2,000 cycles. He found that
appellant’s speech discrimination and reception threshold were better than expected based on his
degree of hearing loss and his pure tone testing averages. Dr. Scherl noted that acoustic reflexes
were present in appellant’s right ear at 500, 1,000 and 2,000 cycles and in his left ear at 500 and
1,000 cycles. He stated that otoacoustic emission testing demonstrated near-normal hearing in
the left ear and some loss in the right ear.
Dr. Scherl opined that appellant had significant hearing loss, but that his tests were not
completely accurate and his cooperation was suspect. He noted that the presence of reflexes was
inconsistent with his hearing levels, as were his pure tone, speech reception threshold, and
speech discrimination scores. Dr. Scherl noted that the near-normal otoacoustic emission testing
called into question the accuracy and etiology of appellant’s high frequency hearing loss, as the
findings would be expected to be much worse for hearing loss caused by noise exposure. He
stated that appellant’s hearing loss findings were more consistent with neurological loss rather
than noise exposure loss and opined that the progression of appellant’s hearing loss was
unrelated to noise exposure during his federal employment. Dr. Scherl also opined that
appellant’s hearing thresholds were significantly better than the tests indicated.
On December 20, 2005 the Office sought clarification of his opinion. In a report dated
January 19, 2006 Dr. Scherl stated that appellant’s hearing loss progression was only partly
related to noise exposure, which did not play a major role in the continued hearing deterioration.
On April 12, 2006 the Office provided Dr. Scherl’s report to Dr. Rothfeld, the Office
medical adviser. On May 6, 2006 Dr. Rothfeld concurred with Dr. Scherl’s opinion that
appellant’s hearing loss progression was not related to acoustic trauma from appellant’s federal
employment. He stated that the currently accepted scientific studies indicated that there was no
further deterioration of the acoustic nerve or its components following cessation of exposure to
acoustic trauma. Dr. Rothfeld found that the progression of appellant’s hearing loss in the prior
30 years was related to presbycusis, with some possible psychological overlay to account for the
inconsistencies in the recent audiograms.
By decision dated June 8, 2006, the Office denied modification of appellant’s schedule
award on the basis of the medical opinions of Dr. Scherl and Dr. Rothfeld. On June 28, 2006
appellant requested an oral hearing.
By decision dated November 13, 2006, the Office hearing representative vacated the
June 8, 2006 decision and remanded the case for further development. He found that Dr. Scherl
provided an inconsistent opinion as to whether the progression of appellant’s hearing loss was
caused in any part by the accepted employment factors.
On November 29, 2006 the Office requested that Dr. Scherl clarify his medical opinion.
In a report dated December 29, 2006, Dr. Scherl stated that appellant’s significant hearing loss
since 1988 was related to multiple factors, the vast majority of which were related to genetics
and aging. He stated, however, that it was not unusual for people with severe and prolonged

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exposure to noise to experience continued deterioration years afterwards. Dr. Scherl stated that it
was conceivable that a very small amount of appellant’s hearing loss progression was related to
his prior noise exposure because dramatic noise exposure can be the cause of mild progression in
hearing loss that would not have otherwise occurred, even years later.
On January 8, 2007 the Office provided Dr. Scherl’s opinions and selections from
appellant’s medical history to a new Office medical adviser, Dr. Morley Slutsky, a Boardcertified occupational medical specialist. On February 8, 2007 Dr. Slutsky stated that the
majority of medical science did not support Dr. Scherl’s finding that a small part of appellant’s
hearing loss progression could be related to his prior noise exposure. He opined that, because
appellant’s federally-induced hearing loss would stop at the same time as his noise exposure, the
progression of appellant’s hearing loss from 1977 was not due to his federal employment.
Dr. Slutsky stated that he was unable to provide a diagnosis or functional hearing loss
measurement because he did not have any historical audiograms or an accurate current
audiogram.
On February 16, 2007 the Office provided Dr. Slutsky with appellant’s entire case file.
On February 22, 2007 Dr. Slutsky supplemented his report based on audiometric examinations
from the 1970s and 1980s. He agreed that the diagnosis of noise-induced, high frequency
employment-related hearing loss had been established. To determine appellant’s permanent
functional loss of hearing and the date of maximum medical improvement, Dr. Slutsky used an
audiogram conducted on December 31, 1979 because it had good reliability and was the closest
to appellant’s last exposure to the acoustic trauma. He noted that he could not confirm whether
the 1979 test was performed in accordance with the applicable sound and equipment, but he
would presume that they had been performed to the clinical standards of the time. According to
the 1979 audiometric test, appellant had no ratable hearing loss. Dr. Slutsky stated that later
audiometric tests revealed significant changes in appellant’s low frequency hearing, but that
these changes were not related to appellant’s federal employment.
By decision dated March 7, 2007, the Office denied appellant’s claim for increased
schedule award. The Office found that, as Dr. Scherl did not provide an exact rating for
appellant’s increased hearing loss and the Office medical adviser found that the change was
unratable, the medical evidence did not establish that any basis for an additional schedule award.
LEGAL PRECEDENT
A claimant under the Federal Employees’ Compensation Act2 may seek an increased
schedule award if the evidence establishes that he or she sustained an increased impairment at a
later date causally related to an employment injury. A claim for an increased schedule award
may be based on new exposure or on medical evidence indicating the progression of an
employment-related condition, without new exposure to employment factors, has resulted in
greater impairment than previously calculated.3 The Board has long recognized that, if a

2

5 U.S.C. § 8101 et seq.

3

Rose V. Ford, 55 ECAB 449 (2004).

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claimant’s employment-related hearing loss worsens in the future, the claimant may apply for an
additional schedule award for any increased permanent impairment.4
Once the Office starts to procure a medical opinion, it must do a complete job. The
Office has the responsibility to obtain from its referral physician an evaluation that will resolve
the issue involved in the case.5
ANALYSIS
The Board finds that this case is not in posture for a decision because the second opinion
physician did not resolve the issues related to the cause and extent of appellant’s increased
hearing loss.
Dr. Scherl, a Board-certified otolaryngologist, stated that the audiometric examination
performed in his office on November 11, 2005 showed severe bilateral sensorineural hearing
loss, especially above 2,000 cycles. He found, however, that appellant’s speech discrimination
and reception thresholds were better than expected based on his degree of hearing loss and his
pure tone testing averages, which indicated poor testing reliability. Dr. Scherl noted that several
of appellant’s previous audiometric tests also had poor reliability. He found that acoustic
reflexes were present in both ears and that otoacoustic emission testing demonstrated nearnormal hearing in the left ear and some loss in the right ear. Based on these findings, Dr. Scherl
opined that appellant had significant hearing loss, but that the amount of the loss was unclear
because of appellant’s suspect cooperation and the unreliability of the test results. Dr. Scherl
stated that the near-normal otoacoustic emission testing called into question the accuracy and
etiology of appellant’s high frequency hearing loss, because the findings would be expected to be
much worse for hearing loss caused by noise exposure. He opined that appellant’s hearing
thresholds were significantly better than the tests indicated. Dr. Scherl stated that appellant’s
hearing loss findings were more consistent with neurological loss rather than noise exposure loss
and that noise exposure did not play a major role in the continued hearing deterioration. When
asked to clarify his opinion, he stated that the vast majority of appellant’s hearing loss was due to
genetics and aging, but that it was conceivable that a very small amount of the hearing loss
progression was related to prior noise exposure. Dr. Scherl explained that dramatic noise
exposure can cause mild progression in hearing loss years afterwards.
The Board finds that Dr. Scherl’s opinion does not carry the weight of the medical
evidence in this case because it is speculative as to whether any portion of appellant’s increased
hearing loss was caused by his federal noise exposure.6 While the medical opinion of a
physician supporting causal relationship does not have to reduce the cause or etiology of a

4

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

5

Richard F. Williams, 55 ECAB 343 (2004).

6

The Board has held that if the evidence supports that an underlying condition was aggravated, precipitated,
accelerated, the resultant disability is compensable regardless of the precise quantum or portion directly related to
the federal employment. See Henry Klaus, 9 ECAB 333 (1957).

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disease or condition to an absolute certainty, neither can such opinion be speculative or
equivocal.7
The Board also finds that the Office improperly determined that Dr. Scherl’s reports
provided an accurate assessment of appellant’s hearing impairment. Dr. Scherl stated that the
reliability of several audiometric tests, including that of November 11, 2005, was poor, that
appellant’s cooperation was suspect, and that appellant probably had greater hearing thresholds
than the tests indicated. However, the Office did not refer appellant for additional audiometric
testing to address Dr. Scherl’s concerns. The Board has held that when the reliability of
audiometric tests is poor, the Office should instruct the referral physician to perform appropriate
tests to determine the reason for testing inconsistency.8 Because Dr. Scherl could not ascertain
the accuracy of appellant’s hearing impairment, his report cannot be used as the basis of a
schedule award determination.
CONCLUSION
The Board finds that this case is not in posture for a decision. The Office’s second
opinion physician has not yet resolved the issue of causation and has not determined appellant’s
current impairment level. On remand, the Office should refer appellant to a second opinion
physician for further audiometric examination and an opinion on causal relationship.9 Following
this and such further development as the Office deems necessary, an appropriate decision should
be issued.

7

Ellen L. Noble, 55 ECAB 530 (2004).

8

See Charles A. McNeely, 40 ECAB 484 (1989).

9

5 U.S.C. § 8123(d) provides in pertinent part: “If an employee refuses to submit to or obstructs an examination,
his right to compensation under this subchapter is suspended until the refusal or obstruction stops.” See also
20 C.F.R. § 10.323.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 7, 2007 is set aside and remanded for action consistent
with this decision.
Issued: November 20, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Pembroke Pines, FL, Employer
__________________________________________

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

Docket No. 16-1915
Issued: March 10, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 29, 2016 appellant filed a timely appeal from an August 24, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established a recurrence commencing January 25,
2016 causally related to his accepted March 26, 2012 employment injury.

1

The Board notes that appellant submitted additional evidence after OWCP rendered its August 24, 2016
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 27, 2012 appellant, then a 30-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that on March 26, 2012 he sustained a fracture to his right
tibia when he was attempting to apprehend “illegal aliens” and fell off a deer-proof fence. He
sought treatment with Dr. Daniel C. Valdez, a Board-certified orthopedic surgeon, and
Dr. John V. Puig, Board-certified in family and sports medicine. Following his injury appellant
worked light duty.
By decision dated August 26, 2012, OWCP accepted the claim for lateral malleolus
fracture of right ankle, right sprain of ankle deltoid ligament, right sprain of ankle other specified
sites, other enthesopathy of right ankle and tarsus, and right ankle and foot effusion of joint.3
On December 10, 2012 appellant received a schedule award for five percent permanent
impairment of the right lower extremity. The date of maximum medical improvement was noted
as August 8, 2012.
In a February 13, 2013 work capacity evaluation form (Form OWCP-5c), Dr. Puig
reported that appellant was capable of performing his usual job and released him to regular duty.
On January 25, 2016 appellant filed a recurrence claim (Form CA-2a). He did not
indicate whether his recurrence was due to need for further medical treatment or wage loss.
Appellant reported that, after the March 26, 2012 employment injury, he was on light duty
performing administrative duties for several weeks. He reported that the pain and discomfort
from the original injury never went away and he had no prior issues with his right ankle prior to
the work-related fracture. Appellant noted that he was working in a full-time capacity with no
restrictions as of his recurrence.
By letter dated February 22, 2016, OWCP informed appellant that the evidence of record
was insufficient to support his recurrence claim. Appellant was advised of the medical and
factual evidence needed and was afforded 30 days to submit the necessary evidence. He did not
respond and no further evidence was received.
By decision dated March 23, 2016, OWCP denied appellant’s recurrence claim as the
medical evidence failed to establish that his need for additional medical treatment beginning
January 25, 2016 was due to a material change/worsening of his accepted work-related
condition, without intervening cause.
On June 29, 2016 appellant requested reconsideration of OWCP’s decision.
In support of his claim, appellant submitted a June 10, 2016 diagnostic report from
Dr. Richard Anguiano, a Board-certified radiologist. Dr. Anguiano reported that a magnetic
resonance imaging (MRI) scan of the right ankle revealed subchondral cysts along the anterior
lateral aspect of the talar dome. He noted that the overlying cortex and cartilage appeared to be
3

Appellant filed a claim for a schedule award (Form CA-7) on October 24, 2012.
December 10, 2012, OWCP granted a schedule award for five percent permanent impairment.

2

By decision dated

intact. Dr. Anguiano further reported mild subchondral edema along the interior lateral talus and
the anterior aspect of the posterior facet joint, likely degenerative. He noted comparison with the
April 4, 2012 MRI scan of the right ankle.
By decision dated August 24, 2016, OWCP affirmed the March 23, 2016 decision finding
that the medical evidence failed to establish that appellant had sustained a recurrence beginning
January 25, 2016 due to a material change/worsening of his accepted work-related conditions.4
LEGAL PRECEDENT
Recurrence of medical condition means a documented need for further medical treatment
after release from treatment for the accepted condition or injury when there is no accompanying
work stoppage. Continuous treatment for the original condition or injury is not considered a
need for further medical treatment after release from treatment, nor is an examination without
treatment.5
If a claim for recurrence of medical condition is made more than 90 days after release
from medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet
her burden.6
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.7
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable, and
probative evidence that the disability for which he or she claims compensation is causally related
to the accepted injury. This burden of proof requires that a claimant furnish medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that, for each period of disability claimed, the disabling condition is causally related to

4

The Board notes that the record includes an August 3, 2016 OWCP decision which denied modification of the
March 23, 2016 denial of the claim. OWCP’s August 24, 2016 decision however related that it superseded the
August 3, 2016 decision without further explanation.
5

20 C.F.R. § 10.5(y). M.O., Docket No. 16-1242 (issued November 28, 2016).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).
7

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).

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the employment injury, and supports that conclusion with medical reasoning.8 Where no such
rationale is present, the medical evidence is of diminished probative value.9
ANALYSIS
OWCP accepted appellant’s claim for lateral malleolus fracture of right ankle, right
sprain of ankle deltoid ligament, right sprain of ankle other specified sites, other enthesopathy of
right ankle and tarsus, and right ankle and foot effusion of joint. Following his injury, appellant
returned to light-duty work.
He was released to full duty without restrictions on
February 13, 2013.
While appellant did not clearly indicate on his January 25, 2016 notice of recurrence
whether he was seeking further medical treatment or wage-loss benefits, insofar as appellant is
attributing his recurrence to a need for medical treatment, he has the burden of proof to provide
medical evidence to establish that his current right ankle injury is due to his accepted workrelated conditions and required further medical treatment.10
The only medical evidence received in support of appellant’s claim was Dr. Anguiano’s
June 10, 2016 diagnostic report documenting results of the right ankle MRI scan. Dr. Anguiano
compared the current MRI scan to the prior April 4, 2012 report, noting that the overlying cortex
and cartilage appeared to be intact. He noted subchondral cysts along the anterior lateral aspect
of the talar dome, he failed to provide any opinion that appellant’s current condition was causally
related to his accepted conditions.11 Dr. Anguiano further indicated that the mild subchondral
edema along the interior lateral talus and anterior aspect of the posterior facet joint was likely
degenerative. He did not provide adequate bridging evidence to show a spontaneous worsening
of the accepted conditions, or that he required further medical treatment.12 It remains unclear if
the subchondral edema was caused by the March 26, 2012 employment injury or a result of an
unrelated preexisting degenerative condition.13 Thus, Dr. Anguiano’s opinion is insufficiently
rationalized to establish appellant’s claim for a recurrence.14
While it is unclear from the record whether appellant stopped work as of the date of his
alleged recurrence, for each period of disability claimed, the employee must establish that he was
disabled for work as a result of the accepted employment injury. The Board will not require
OWCP to pay compensation for disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
8

Ronald A. Eldridge, 53 ECAB 218 (2001).

9

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

10

Supra note 5.

11

Cecilia M. Corley, 56 ECAB 662 (2005).

12

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

13

R.E., Docket No. 14-868 (issued September 24, 2014).

14

L.G., Docket No. 11-142 (issued August 12, 2011).

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compensation. Dr. Anguiano did not find appellant disabled beginning January 25, 2016 as a
result of his accepted work-related injury.15
As appellant has not submitted any medical evidence showing that he sustained a
recurrence of disability or a recurrence of his medical condition due to his accepted employment
injury, the Board finds that he has not met his burden of proof.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
commencing January 25, 2016 causally related to his accepted March 26, 2012 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the August 24, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

15

R.A., Docket No. 14-1327 (issued October 10, 2014).

16

L.L., Docket No. 13-2146 (issued March 12, 2014). See also William A. Archer 55 ECAB 674, 679 (2004).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.K., Appellant
and
U.S. POSTAL SERVICE, CLIFFSIDE PARK
POST OFFICE, Cliffside Park, NJ, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0266
Issued: December 6, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 17, 2020 appellant, through counsel, filed a timely appeal from a
November 5, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 5, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $11,022.12, for which he was without fault,
because he concurrently received FECA wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits for the period June 1, 2018 through
October 12, 2019, without an appropriate offset; (2) whether it properly denied waiver of recovery
of the overpayment; and (3) whether OWCP properly required recovery of the overpayment by
deducting $350.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On November 2, 2007 appellant, then a 55-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained lower lumbar back pain due to factors of his
federal employment. OWCP initially accepted the claim for aggravation of lumbosacral
spondylolysis.
Appellant completed a claim for compensation (Form CA-7) on February 22, 2008 wherein
he noted his retirement system as Federal Employees Retirement System (FERS).
On November 26, 2012 OWCP expanded acceptance of the claim to include chronic pain
syndrome, lumbar spinal stenosis, right ankle/foot derangement, and other acquired deformities of
the right ankle/foot. The record reflects that OWCP paid appellant wage-loss compensation on
the supplemental rolls as of December 13, 2007 and on the periodic rolls as of March 16, 2008.
On October 8, 2019 OWCP forwarded a FERS/SSA dual benefits calculation transmittal
form to SSA to obtain information as to whether an offset of compensation benefits was required.
On October 21, 2019 OWCP received from SSA a completed FERS/SSA dual benefits
calculation form which indicated that appellant had been in receipt of SSA age-related retirement
benefits since June 1, 2018. The form showed SSA benefit rates with and without a FERS offset.
Beginning June 1, 2018, the SSA rate with FERS was $1,907.80, and without FERS was
$1,249.50; and beginning December 1, 2018, the SSA rate with FERS was $1,961.20, and without
FERS was $1,284.40.
OWCP certified a FERS offset calculation worksheet on November 1, 2019. It calculated
the overpayment amount by determining the daily FERS offset amount and multiplying that
amount by the number of days in each period from June 1, 2018 through October 12, 2019,
resulting in a total overpayment amount of $11,022.12. This form indicated that from June 1
through November 30, 2018 appellant received an overpayment in the amount of $3,971.50, and
from December 1, 2018 through October 12, 2019, he received an overpayment in the amount of
$7,050.62.
In a November 14, 2019 letter, OWCP informed appellant that it would begin deducting
the portion of SSA age-related retirement benefits attributable to his federal service from his 28day periodic compensation benefits. It determined that appellant would receive a net payment
every 28 days of $2,029.38.

2

On June 11, 2020 OWCP issued a preliminary overpayment determination, finding that an
overpayment of compensation in the amount of $11,022.12 had been created because it had failed
to reduce appellant’s wage-loss compensation payments for the period June 1, 2018 through
October 12, 2019, to offset his SSA age-related retirement benefits that were attributable to federal
service. It determined that he was without fault in the creation of the overpayment because he
could not have reasonably known that an improper payment had occurred, due to the complexity
in benefits administration.
OWCP requested that appellant submit a completed overpayment recovery questionnaire
(Form OWCP-20) to determine a reasonable payment method and advised him that he could
request a waiver of the overpayment. It further requested that he provide supporting financial
documentation, including copies of income tax returns, bank account statements, bills, pay slips,
and any other records to support income and expenses. Additionally, OWCP provided an
overpayment action request form and further notified appellant that, within 30 days of the date of
the letter, he could request a telephone conference, a final decision based on the written evidence,
or a prerecoupment hearing.
On June 22, 2020 OWCP received appellant’s request for a prerecoupment hearing, which
was held on September 9, 2020. Appellant disagreed that an overpayment occurred and disagreed
with the amount of the overpayment. During the hearing, he noted that he only had $500.00 in his
checking account. The hearing representative advised appellant to submit supporting financial
documentation.
On July 13, 2020 OWCP received appellant’s June 27, 2020 Form OWCP-20 and on
September 22, 2020, it received a list of appellant’s monthly income and expenses. Appellant
reported total monthly income of $4,798.20 and total monthly expenses of $4,446.00.
On October 5, 2020 OWCP received a bank statement, for the period August 26 to
September 24, 2020, which showed an ending balance of $1,425.74.
By decision dated November 5, 2020, OWCP’s hearing representative finalized the
preliminary overpayment determination, finding that appellant had received an overpayment of
compensation in the amount of $11,022.12 for the period June 1, 2018 through October 12, 2019,
because he concurrently received SSA age-related retirement benefits and FECA wage-loss
compensation benefits without a proper offset. She also found that he was without fault in the
creation of the overpayment, but denied waiver of recovery of the overpayment. The hearing
representative found that appellant provided financial information that established a monthly
household income of $4,753.96 and that he listed expenses of $4,471.00, however, supporting
documentation was not provided for the listed expenses. She concluded that, without supporting
documentation, appellant’s household income versus expenses could not be determined. The
hearing representative found that appellant received net payment of $2,077.16 on the periodic rolls
every 28 days, therefore, recovery of the overpayment would be made by deducting $350.00 every
28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
3

or her federal employment. 4 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States. 5 When an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made unde r regulations prescribed
by the Secretary of Labor by decreasing later payments to which the individual is entitled. 6
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA age-related retirement benefits that are attributable to
federal service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $11,022.12, for which he was without fault, because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period June 1, 2018 through October 12, 2019, without an appropriate offset.9 The evidence
of record indicates that, while appellant was receiving wage-loss compensation benefits under
FECA, he also was receiving SSA age-related retirement benefits based upon his federal service.
A claimant cannot receive both compensation for wage-loss compensation benefits under FECA
and SSA age-related retirement benefits attributable to federal service for the same period. 10 The
information provided by SSA established that appellant received SSA age -related retirement
benefits that were attributable to federal service during the period June 1, 2018 thorough
October 12, 2019. Consequently, the fact of overpayment has been established.
To determine the amount of the overpayment, the portion of SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. SSA provided its rate with FERS and without FERS for specific periods from
June 1, 2018 through October 12, 2019. OWCP provided its calculations for each relevant period
based on the SSA worksheet and determined that appellant received an overpayment of
compensation in the amount of $11,022.12. The Board, thus, finds that appellant received
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
8

FECA Bulletin No. 97-09 (February 3, 1997).

9

P.B., Docket No. 20-0862 (issued November 25, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020);
A.F., Docket No. 19-0054 (issued June 12, 2019).
10

20 C.F.R. § 10.421(d); see R.R., supra note 7; T.B., supra note 7; L.J., supra note 7.

4

prohibited dual benefits for the period June 1, 2018 thorough October 12, 2019, totaling
$11,022.12.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment, unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 11
Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience. 12
Section 10.436 of OWCP’s implementing regulations provides that recovery of an
overpayment would defeat the purpose of FECA if such recovery would cause hardship because
the beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living expenses
and, also, if the beneficiary’s assets do not exceed a specified amount as determined by OWCP
from data provided by the Bureau of Labor Statistics. 13 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00. 14
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt;
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 15
OWCP’s regulations at Section 10.438 provide that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. The
information is also used to determine the repayment schedule, if necessary. 16 Failure to submit
the requested information within 30 days of the request shall result in a denial of waiver of

11

5 U.S.C. § 8129(a)-(b).

12

20 C.F.R. § 10.436.

13

Id.; OWCP’s procedures provide that the assets must not exceed a resource base of $6,200.00 for an individual
or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional dependent. Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter 6.400.4(a)(3)
(September 2020).
14

Id.

15

20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

16

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

5

recovery, and no further request for waiver shall be considered until the requested information is
furnished.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 18 Appellant,
however, had the responsibility to provide the appropriate financial information to OWCP. 19
In its preliminary overpayment determination dated June 11, 2020, OWCP explained the
importance of providing the completed overpayment questionnaire and financial information,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. It advised appellant that it would deny waiver if he failed
to furnish the requested financial information within 30 days. Appellant submitted a Form OWCP20 and a list of income and expenses; however, he did not provide documentation to support his
financial information.20 As a result, OWCP did not have all of the necessary financial information
to determine if recovery of the overpayment would defeat the purpose of FECA or if recovery
would be against equity and good conscience.21
The Board, thus, finds that OWCP properly denied waiver of recovery of the
overpayment. 22
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.23
Section 10.441(a) of OWCP’s regulations24 provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
17

Id. at § 10.438(b).

18

Id. at § 10.436.

19

Id. at § 10.438; see B.G., Docket No. 20-0541 (issued April 28, 2021); N.J., Docket No. 19-1170 (issued
January 10, 2020).
20

R.M., Docket No. 19-1570 (issued June 1, 2020).

21

G.G., Docket No. 19-0684 (issued December 23, 2019).

22

20 C.F.R. § 10.438; see L.D., Docket No. 19-0606 (issued November 21, 2019).

23

Id. at § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

24

Id. at § 10.441(a).

6

soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”25
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$350.00 from appellant’s continuing compensation payments every 28 days. 26
OWCP provided appellant a Form OWCP-20 along with its June 11, 2020 preliminary
overpayment determination. Appellant did not fully complete the overpayment recovery
questionnaire or provide the necessary documentation to support his income and expenses prior to
the final November 5, 2020 overpayment decision. The overpaid individual is responsible for
providing information about income, expenses, and assets as specified by OWCP. 27 When an
individual fails to provide the requested financial information, OWCP should follow minimum
collection guidelines designed to collect the debt promptly and in full. 28 The Federal (FECA)
Procedure Manual provides that in such instances, OWCP should set the rate of repayment at 25
percent of the 28-day net compensation amount, until the balance of the overpayment is paid in
full.29 While appellant did not submit the financial information requested, the record reflects that
his continuing 28-day net compensation amounts to $2,077.16. Therefore, deducting $350.00
every 28 days from his continuing compensation is in accordance with the 25 percent repayment
rate.30
As appellant did not submit the financial documentation to OWCP as requested, the Board
finds that there is no evidence of record to establish that OWCP erred in requiring recovery of the
$11,022.12 overpayment by deducting $350.00 every 28 days from appellant’s continuing
compensation payments. 31 Therefore, it properly required recovery of the overpayment by
deducting $350.00 every 28 days from appellant’s continuing compensation benefits.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $11,022.12, for which he was without fault, because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
25

J.K., Docket No. 20-1190 (issued January 8, 2021); see C.M., Docket No. 19-1451 (issued March 4, 2020).

26

L.D., Docket No. 19-1423 (issued March 2, 2020).

27

20 C.F.R. § 10.438; see also A.F., supra note 9.

28

See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002).

29

Federal (FECA) Procedure Manual, supra note 13 at 6.500.8(c)(1) (September 2020).

30

E.M., Docket No. 19-0857 (issued December 31, 2019).

31

M.D., Docket No. 19-1500 (issued February 24, 2020).

7

the period June 1, 2018 thorough October 12, 2019, without an appropriate offset; and that OWCP
properly denied waiver of recovery of the overpayment. The Board also finds that OWCP properly
required recovery of the overpayment by deducting $35 0.00 from appellant’s continuing
compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF THE ARMY, TANK
AUTOMOTIVE & ARMAMENTS COMMAND,
ANNISTON ARMY DEPOT, Anniston, AL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 21-0781
Issued: February 24, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 26, 2021 appellant filed a timely appeal from an April 8, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than four
percent binaural hearing loss for which he previously received schedule award compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On September 5, 2019 appellant, then a 63-year-old crane operator, filed an occupational
disease claim (Form CA-2) alleging that he sustained hearing loss and ringing in both ears, as
along with pressure in his left ear, due to factors of his federal employment, including constant
noise exposure. He indicated that he first became aware of his condition on January 6, 2011 and
first realized that it was caused or aggravated by his federal employment on May 11, 2017. In a
July 15, 2019 supplemental statement, appellant indicated that he experienced an aggravation of
previous hearing loss due to noise at work. OWCP assigned the claim OWCP File No. xxxxxx392.
Appellant had filed a prior occupational disease claim (Form CA-2) on August 28, 2015
under OWCP File No. xxxxxx524 for binaural hearing loss due to factors of his federal
employment, including exposure to noise from disassembling army tanks. 3 On March 29, 2017
OWCP accepted the claim for bilateral sensorineural hearing loss.
By decision dated April 26, 2017, OWCP granted appellant a schedule award for three
percent binaural hearing loss. The award ran for six weeks from March 9 through April 19, 2017.
In a development letter dated September 13, 2019, OWCP advised appellant of the
deficiencies of his claim. It advised him as to the type of additional factual and medical evidence
required and provided a questionnaire for his completion. By separate development letter of even
date, OWCP requested that the employing establishment provide additional information regarding
appellant’s exposure to noise due to factors of his federal employment, including comme nts from
a knowledgeable supervisor regarding the accuracy of his statements. It afforded both parties 30
days to respond.
OWCP received additional evidence. On September 4, 2019 Dr. Fred A. McLeod, a
Board-certified otolaryngologist, diagnosed dizziness, active cochlear Meniere’s disease of the
right ear and Eustachian tube dysfunction. An audiogram dated September 10, 2019 performed
by Paul V. Stephens, an audiologist, revealed sensorineural hearing loss consistent with noise
exposure and 7.8 percent binaural hearing loss. Similarly, on September 26, 2019, Lori G.
McCollum, an audiologist, opined that appellant’s high frequency hearing loss included a notch in
the high frequencies suggestive of noise-induced loss.
In a statement dated September 27, 2019, appellant reported working as a crane operator
and was exposed to different pneumatic tools including grinders, drills, chipping hammers, impact
wrenches, and cranking and texting of engines on heavy machinery. He noted that his crane was
2

Order Remanding Case, Docket No. 20-1222 (issued February 23, 2021).

3

On July 22, 2016 appellant appealed a June 28, 2016 decision denying his claim for an occupational disease. By
decision dated January 9, 2017, the Board set aside the June 28, 2016 decision and remanded the case for further
medical development. The Board instructed OWCP to refer appellant to a second opinion physician for an opinion
on whether appellant’s work-related noise exposure caused or aggravated his hearing loss. See R.J., Docket No. 161525 (issued January 9, 2017).

2

three feet above where the combat vehicles were built and moved in and out of the shop. Appellant
noted working nine hours a day for five to six days a week in this environment. He believed that
the decibel level in the building to be 85 or higher and indicated that he was provided with hearing
protection.
On October 17, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Dennis G. Pappas, Jr., an otolaryngologist, for a second
opinion evaluation. In a report dated November 20, 2019, Dr. Pappas reviewed appellant’s
medical record and the SOAF, performed a physical examination, and completed OWCP’s
evaluation questionnaire. He indicated that there was no significant variation from the SOAF.
Dr. Pappas diagnosed bilateral sensorineural hearing loss, bilateral tinnitus and left chronic serous
otitis media, opining that they were due to noise exposure related to appellant’s federal
employment. He further indicated that appellant’s hearing loss progressed since the 2017 study.
Dr. Pappas reviewed an audiogram conducted by an audiologist on that same date, which
demonstrated losses of 5, 10, 25 and 35 decibels (dBs) on the right and 20, 25, 30, and 40 dBs on
the left at 500, 1,000, 2,000, and 3,000 Hertz (Hz), respectively. Utilizing the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides),4 he calculated that appellant sustained a right monaural loss of zero percent and left
monaural loss of 5.625 percent and a binaural hearing loss of .9 percent or 1 percent. Dr. Pappas
provided a three percent impairment for tinnitus, which was difficult to mask and interfered with
appellant’s sleep and activities of daily living. He, therefore, found a total of 3.9 or 4 percent
binaural hearing loss. Dr. Pappas recommended that appellant continue to wear hearing aids and
continue noise protection.
On January 23, 2020 OWCP accepted the claim for bilateral sensorineural hearing loss and
bilateral tinnitus.
On January 30, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
On January 31, 2020 OWCP referred the medical record and SOAF to Dr. Jeffrey Israel, a
Board-certified otolaryngologist serving as an OWCP district medical adviser (DMA), to
determine the extent of appellant’s hearing loss and permanent impairment due to his employmentrelated noise exposure. On March 14, 2020 Dr. Israel reviewed Dr. Pappas’ examination report
and agreed that appellant’s sensorineural hearing loss was due, at least in part, to noise-induced
work-related acoustic trauma. He applied the audiometric data to OWCP’s standard for evaluating
hearing loss under the A.M.A., Guides and determined that appellant sustained a right monaural
loss of zero percent, a left monaural loss of 5.625 percent, and a binaural hearing loss of .9 or 1
percent. Dr. Israel averaged appellant’s right ear hearing levels of 5, 10, 25, and 35 dBs at 500,
1,000, 2,000, and 3,000 Hz, respectively, by adding the hearing loss at those four levels then
dividing the sum by four, which equaled 18.75. After subtracting the 25 dB fence and multiplying
by 1.5 (as explained above), he found zero percent monaural hearing loss for the right ear.
Dr. Israel then averaged appellant’s left ear hearing levels of 20, 25, 30 and 40 dBs at 500, 1,000,
2,000, and 3,000 Hz, respectively, by adding the hearing loss at those four levels then dividing the
4

A.M.A., Guides (6 th ed. 2009).

3

sum by four, which equaled 28.75. After subtracting out a 25 dB fence, he multiplied the
remaining 3.75 balance by 1.5 to calculate a 5.625 percent left ear monaural hearing loss. Dr. Israel
then calculated .9 percent binaural hearing loss by multiplying the right ear loss of zero percent by
five, adding the 5.625 percent left ear loss, and dividing this sum by six. He recommended yearly
audiograms, use of noise protection, and authorization for bilateral hearing aids. Dr. Israel
concurred with Dr. Pappas’ recommendation for three percent tinnitus award noting its impact on
appellant’s activities of daily living. He added 3 percent to the .9 percent binaural loss, appellant
would receive a total award of 3.9 percent. Dr. Israel noted that appellant had reached maximum
medical improvement on November 20, 2019, the date of the latest audiogram in the records and
the one used by the Dr. Pappas to determine the current hearing impairment.
Dr. Israel noted providing an impairment rating on March 30, 2017 under OWCP File No.
xxxxxx524; however, there was no reference to the prior evaluation in the current records. At that
time he calculated a 2.6 percent binaural hearing impairment award. Dr. Israel indicated that as
there was past binaural hearing impairment award of 2.6 percent rendered it must be considered as
part of the new impairment calculation. He noted that 3.9 percent rating minus the prior 2.6 percent
rating equaled the revised award of 1.3 percent.
By decision dated March 19, 2020, OWCP granted appellant an additional one percent
permanent impairment for binaural hearing loss, for a total four percent binaural hearing loss. The
award ran for two weeks from November 20 through December 3, 2019 and was based on the
November 20, 2019 report of Dr. Pappas and the March 14, 2020 DMA report.
On May 13, 2020 appellant appealed to the Board.
By order dated February 23, 2021, the Board set aside OWCP’s March 19, 2020 decision
and remanded the case with instructions to administratively combine OWCP File Nos. xxxxxx392
and xxxxxx524.5 On remand, OWCP administratively combined the files with OWCP File No.
xxxxxx524 serving as the master file.
In a development letter dated March 4, 2021, OWCP requested that appellant submit a
narrative medical report from his physician, which contained a detailed description of findings and
diagnoses, explaining how his employment duties caused or aggravated his medical condition
entitling him to additional permanent impairment due to bilateral hearing loss.
By decision dated April 8, 2021, OWCP denied appellant’s claim for an additional
schedule award. It noted that he did not respond to an OWCP development letter requesting
updated medical evidence to support an increase in permanent impairment for binaural hearing
loss.

5

Id.

4

LEGAL PRECEDENT
The schedule award provisions of FECA 6 and its implementing regulations 7 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, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A., Guides as
the uniform standard applicable to all claimants. 8 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards. 9
A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim. 10 With respect to a schedule award, it is the claimant’s
burden of proof to establish permanent impairment of a scheduled member or function of the body
as a result of his or her employment injury. 11
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.12 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are averaged. Then, the fence of 25 dBs is deducted because, as the A.M.A., Guides
point out, losses below 25 dBs result in no impairment in the ability to hear everyday speech under
everyday conditions. The remaining amount is multiplied by a factor of 1.5 to arrive at the
percentage of monaural hearing loss. The binaural loss of hearing 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 binaural hearing
loss.13 The Board has concurred in OWCP’s adoption of this standard for evaluating hearing loss.14
Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a disease, but rather a
symptom that may be the result of disease or injury. 15 If tinnitus interferes with activities of daily

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
10

D.H., Docket No. 20-0198 (issued July 9, 2020); John W. Montoya, 54 ECAB 306 (2003).

11

R.R., Docket No. 19-0750 (issued November 15, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L.
Meehan, 53 ECAB 229 (2001).
12

A.M.A., Guides 250.

13

Id.

14

G.T., Docket No. 19-1705 (issued April 16, 2020); E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52
ECAB 462 (2001).
15

See A.M.A., Guides 249.

5

living, including sleep, reading, and other tasks requiring concentration, up to five percent may be
added to a measurable binaural hearing impairment. 16
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than four
percent binaural hearing loss, for which he previously received schedule award compensation.
OWCP referred appellant to Dr. Pappas for a second opinion examination to evaluate his
hearing loss. In his November 20, 2019 report, Dr. Pappas discussed appellant’s work history and
opined that the industrial noise exposure was the primary factor causing his condition. He
diagnosed bilateral high frequency sensorineural hearing loss and bilateral tinnitus caused by the
noise exposure in his workplace.
On March 14, 2020 the DMA reviewed Dr. Pappas’ report and indicated that testing at the
frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed dB losses of 5, 10, 25, and 35 for the
right ear and dB losses of 20, 25, 30, and 40 for the left ear, respectively. Following the rating
protocols, the DMA properly calculated a total binaural hearing loss of four percent.
The Board finds that the DMA accurately summarized the relevant medical evidence,
provided detailed findings on examination, and reached conclusions, which comported with his
findings, and with the appropriate provisions of the A.M.A., Guides.17 The DMA’s report
therefore carries the weight of the medical evidence and establishes that appellant has 3.9 percent
binaural hearing loss which, in accordance with OWCP’s policy, is rounded up to 4 percent. 18
The Board therefore finds that appellant has not met his burden of proof to establish that
he has more than four percent binaural hearing loss, for which he previously received schedule
award compensation.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than four
percent binaural hearing loss for which he previously received schedule award compensation.

16

Id.

17

See J.M., Docket No. 18-1387 (issued February 1, 2019).

18

See F.T., Docket No. 16-1236 (issued March 12, 2018). The policy of OWCP is to round the calculated
percentage of impairment to the nearest whole number. Results should be rounded down for figures less than 0.5 and
up for 0.5 and over; Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4b.
(January 2010). See also R.M., Docket No. 18-0752 (issued December 6, 2019); V.M., Docket No. 18-1800 (issued
April 23, 2019); J.H., Docket No. 08-24329; Robert E. Cullison, 55 ECAB 570 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the April 8, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Little Rock, AR, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 16-1573
Issued: September 5, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 28, 2016 appellant filed a timely appeal from a July 21, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 The Board docketed the appeal as
16-1573.
The Board has duly reviewed the record and finds that the case is not in posture for
decision. By decision dated February 14, 2012 under appellant’s claim in File No. xxxxxx908,
1

The July 21, 2016 decision denied appellant’s claim for an aggravation of bilateral carpal tunnel syndrome, a
cervical sprain, displacement of a cervical intervertebral disc, and trigger finger. OWCP accepted these conditions
under four prior claims: File No. xxxxxx747, accepted for a sprain of the left radial collateral ligament affecting the
elbow and forearm, left hand joint derangement, right radial styloid tenosynovitis, and right wrist and carpus
enesopathy; File No. xxxxxx271, accepted for right arm de Quervain’s tenosynovitis; File No. xxxxxx908, accepted
for bilateral carpal tunnel syndrome, cervical strain, and a temporary aggravation of C5-6 and C6-7 disc herniations;
File No. xxxxxx474, accepted for trigger finger deformity of the right long finger. Under File No. xxxxxx908, on
December 5, 2011, the employing establishment offered appellant a position as a modified administrative support
assistant, performing the same clerical duties but with 50 percent fewer individual tasks than her date-of-injury job.
Her restrictions allowed two hours of intermittent repetitive upper extremity motion, and two hours of fine
manipulation. Appellant performed the position through February 2012 and continuing. On February 14, 2012
under File No. xxxxxx908, OWCP issued a loss of wage-earning capacity determination, based on appellant’s actual
earnings in the modified administrative support assistant position.

accepted for bilateral carpal tunnel syndrome, cervical strain, and a temporary aggravation of
C5-6 and C6-7 disc herniations, OWCP found that the modified administrative support assistant
position appellant had accepted on December 5, 2011 fairly and reasonably represented her
wage-earning capacity in accordance with 5 U.S.C. § 8115.
Appellant filed a notice of occupational disease (Form CA-2) on September 25, 2013
alleging that her duties on or before August 26, 2013 caused bilateral carpal tunnel syndrome,
cervical strain, and a temporary aggravation of C5-6 and C6-7 disc herniations, conditions
previously accepted by OWCP.2 She contended that these conditions totally disabled her for
work as of August 26, 2013. Appellant submitted an attending physician’s report holding her off
work as of August 26, 2013. She also claimed wage-loss compensation for total disability
commencing August 26, 2013. By decision dated July 21, 2016, OWCP denied the occupational
disease claim, finding the medical evidence of record was insufficient to establish causal
relationship. Additionally, it denied appellant’s claims for wage loss from August 26, 2013
onward. OWCP did not acknowledge that it had issued a February 14, 2012 loss of wageearning capacity determination under File No. xxxxxx908.
Once a loss of wage-earning capacity determination is made, it remains in place until it is
modified.3 A modification of such determination is not warranted unless there is a material
change in the nature and extent of the injury-related condition, the employee has been retrained
or otherwise vocationally rehabilitated, or the original determination was, in fact, erroneous.4
The burden of proof is on the party attempting to show a modification of the loss of wageearning capacity determination.5
Appellant’s submission of an occupational disease claim on September 25, 2013, with an
accompanying claim for wage loss, indicates that she believed the accepted conditions had
materially worsened such that she could no longer work. The claim should therefore be regarded
as a request for modification of the February 14, 2012 loss of wage-earning capacity
determination. The Board has held that, when a loss of wage-earning capacity determination has
been issued and appellant submits evidence with respect to disability for work, OWCP must
evaluate the evidence to determine if modification of the loss of wage-earning capacity
determination is warranted.6 OWCP procedures specifically provide that if a formal wageearning capacity decision has been issued, and the claimant subsequently alleges a worsening of
the accepted condition or conditions, such claim should be processed in accordance with
procedures for modifying a formal wage-earning capacity decision.7 In this case, in its July 21,

2

See supra note 1.

3

See G.L., Docket No. 15-1487 (issued October 13, 2015); P.Y., Docket No. 09-2293 (issued September 1, 2010).

4

Sue A. Sedgwick, 45 ECAB 211 (1993).

5

Id.

6

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Criteria for Modification, Chapter 2.1501.3.a.2 (February 2013).

2

2016 decision, OWCP adjudicated the occupational disease claim without any reference to the
loss of wage-earning capacity determination.
The Board finds that OWCP should have determined whether appellant had established
that the loss of wage-earning capacity determination should be modified based on a worsening of
the accepted conditions.8 The Board will therefore remand the case to OWCP for proper
adjudication, including combining appellant’s accepted upper extremity claims as appropriate, to
be followed by issuance of a de novo decision to preserve appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2016 is set aside and the case remanded to OWCP for
further action consistent with this order of the Board.
Issued: September 5, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8

Id.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Barre, VT, Employer
__________________________________________

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

Docket No. 19-0767
Issued: August 23, 2019

Case Submitted on the Record

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

JURISDICTION
On February 25, 2019 appellant filed a timely appeal from a September 13, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On January 16, 2018 appellant, then a 43-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained rotator cuff tendinitis in her left shoulder as
a result of reaching for mail while in the performance of duty. She noted that she first became
1

5 U.S.C. § 8101 et seq.

aware of her condition on June 1, 2017 and first realized that her condition was caused or
aggravated by factors of her federal employment on January 2, 2018. Appellant did not stop work.
In a development letter dated February 1, 2018, OWCP informed appellant that the
evidence submitted was insufficient to establish her claim. It advised her of the type of medical
and factual evidence needed, including a narrative report from her physician diagnosing a
condition causally related to the identified employment duties and explaining how and why those
activities would cause the diagnosed condition. OWCP afforded appellant 30 days to respond.
On February 22, 2018 appellant submitted a February 21, 2018 statement wherein she
indicated that she spent approximately four to five hours per day reaching and pulling mail to the
left and that these motions were the cause of her rotator cuff tendinitis.
OWCP also received a progress note dated February 8, 2018 from Dr. Clea James, a Boardcertified family practitioner who reported that appellant presented with mild tenderness in her left
upper trapezius/supraspinatus region and diagnosed tendinitis of the left rotator cuff. Dr. James
opined that appellant’s injury was likely a repetitive work-related injury.
By decision dated March 16, 2018, OWCP denied appellant’s claim, finding that the
evidence submitted was insufficient to establish causal relationship between her diagnosed left
shoulder condition and the accepted factors of her federal employment.
In a report dated May 8, 2018, Dr. Robert Quinn, a Board-certified family practitioner,
indicated that appellant was under his care for a work-related shoulder injury. He opined that her
injury was consistent with rotator cuff tendinitis and that the injury was caused by carrying and
sorting mail at work.
On July 19, 2018 appellant requested reconsideration of OWCP’s March 16, 2018
decision.
By decision dated September 13, 2018, OWCP denied modification of its previous
decision, again finding that the submitted evidence failed to establish causal relationship between
appellant’s accepted work factors and the diagnosed left rotator cuff tendinitis.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

2

Id.

3
S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

2

to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.7 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on the issue of whether there
is causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical background
of the claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted factors of her federal employment.
In her progress note dated February 8, 2018, Dr. James diagnosed left rotator cuff tendinitis
and concluded that appellant’s condition was “likely” a repetitive work-related injury. The Board
has held that medical opinions which are speculative or equivocal in nature are of diminished
probative value.9 The physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty and must be supported by medical rationale, explaining the nature of the

4

S.C., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr.,
40 ECAB 312 (1988).
5
S.C., supra note 3; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6

C.D., Docket No. 17-2011 (issued November 6, 2018); Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

7

M.B., Docket No. 17-1999 (issued November 13, 2018).

8

M.L., Docket No. 18-1605 (issued February 26, 2019).

9

See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably related,
most likely related, or could be related are speculative and diminish the probative value of the medical opinion);
Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or equivocal are
of diminished probative value).

3

relationship between the diagnosed condition and appellant’s specific employment factor(s).10
While Dr. James did opine that appellant’s condition was “likely” related to her work, she did not
offer any medical rationale sufficient to explain how and why she believes appellant’s work
activities could have resulted in or contributed to the diagnosed condition. For the foregoing
reasons, her progress note is of diminished probative value and is insufficient to establish
appellant’s claim.
In support of her request for reconsideration, appellant submitted Dr. Quinn’s physician’s
note dated May 8, 2018. This note only provided a conclusory statement that appellant’s injury
was “consistent with rotator cuff tendinitis that is attributable to her work at the post office.” The
Board has held that a mere conclusion without the necessary rationale explaining how and why
the physician believes that appellant’s work activities could result in the diagnosed condition is
insufficient to meet appellant’s burden of proof.11 Without explaining how, physiologically, the
employment incident caused or contributed to the diagnosed conditions, a conclusory statement
on causal relationship is insufficiently rationalized and of limited probative value.12 As
Dr. Quinn’s note did not contain any medical rationale explaining how appellant’s accepted work
factors caused or contributed to her diagnosed condition, it is insufficient to meet appellant’s
burden of proof on the issue of causal relationship.13
As there is no rationalized medical evidence of record explaining how appellant’s accepted
employment factors caused or aggravated her left rotator cuff tendinitis, she has not met her burden
of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted factors of her federal employment.

10

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

E.D., Docket No. 16-1854 (issued March 3, 2017).

12

S.N., Docket No. 18-1627 (issued May 15, 2019).

13

J.M., Docket No. 19-0359 (issued June 3, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the September 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 23, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 16-0458
Issued: April 7, 2016

Case Submitted on the Record

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

JURISDICTION
On January 11, 2016 appellant filed a timely appeal from a December 10, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than three percent permanent impairment of her
left upper extremity, for which she received a schedule award.
FACTUAL HISTORY
On April 16, 2015 appellant, then a 54-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on April 16, 2015 she sustained a left wrist injury due to a fall

1

5 U.S.C. § 8101 et seq.

at work. OWCP accepted that appellant sustained a left closed fracture at the lower end of the
radius with the ulna.2
Appellant was treated conservatively for her left wrist fracture and she underwent a
functional capacity evaluation on October 9, 2015.
In an October 22, 2015 report, Dr. Benjamin Graves, an attending Board-certified
orthopedic surgeon, reported the findings of his physical examination of appellant. He indicated
that appellant was able to flex and extend her wrists with near symmetric range of motion.
Appellant’s left hand showed no gross deformity or lesions and light sensation was present in her
left upper extremity. Dr. Graves indicated that the September 17, 2015 left wrist x-rays showed
a healed fracture with no obvious bony abnormality and he diagnosed “other closed extraarticular fracture of distal end of left radius with routine healing.” He noted that, under the North
Carolina Commission Rating Guide, appellant had five percent permanent impairment of her left
hand.
On November 18, 2015 appellant filed a claim for compensation (Form CA-7) claiming a
schedule award due to her accepted employment injury.
On November 30, 2015 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, indicated that he had reviewed the medical evidence of
record, including the October 22, 2015 examination findings of Dr. Graves. He found that, under
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009) (A.M.A., Guides), appellant had three percent permanent impairment
of her left upper extremity. Dr. Harris indicated that appellant reached maximum medical
improvement on October 22, 2015 and noted, “For purposes of calculating [s]chedule [a]ward
utilizing [the sixth edition of the A.M.A., Guides], the claimant has three percent upper extremity
impairment for residual problems status post fracture left distal radius [Class of Diagnosis 1C]
(Table 15-3/Page 396).”
By decision dated December 10, 2015, OWCP granted appellant a schedule award for
three percent permanent impairment of her left upper extremity. It was based on the
November 30, 2015 impairment rating of Dr. Harris, the OWCP medical adviser who reviewed
the medical findings of record, including the October 22, 2015 examination findings of
Dr. Graves. The award ran for 9.36 weeks from October 22 to December 26, 2015.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
2

Appellant stopped work after her April 16, 2015 injury and received disability compensation on the daily rolls
beginning June 5, 2015.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

2

specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.6
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the wrist, the relevant portion of the arm for the present
case, reference is made to Table 15-3 (Wrist Regional Grid) beginning on page 395. After the
Class of Diagnosis (CDX) is determined from the Wrist Regional Grid (including identification
of a default grade value), the net adjustment formula is applied using the grade modifier for
Functional History (GMFH), grade modifier for Physical Examination (GMPE), and grade
modifier for Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE
- CDX) + (GMCS - CDX).7 Under Chapter 2.3, evaluators are directed to provide reasons for
their impairment rating choices, including choices of diagnoses from regional grids and
calculations of modifier scores.8
ANALYSIS
OWCP accepted that on April 16, 2015 appellant sustained a left closed fracture at the
lower end of the radius with the ulna. On November 18, 2015 appellant filed a claim for
compensation (Form CA-7) claiming a schedule award due to her accepted employment injury.
By decision dated December 10, 2015, OWCP granted her a schedule award for three percent
permanent impairment of her left upper extremity. The award was based on the November 30,
2015 impairment rating of Dr. Harris, a Board-certified orthopedic surgeon serving as an OWCP
medical adviser. Dr. Harris reviewed the medical findings of record, including the October 22,
2015 examination findings of Dr. Graves, an attending Board-certified orthopedic surgeon.9
On November 30, 2015 Dr. Harris indicated that he had reviewed the medical evidence of
record, including the October 22, 2015 examination findings of Dr. Graves. He found that, under
the sixth edition of the A.M.A., Guides, appellant had three percent permanent impairment of her
left upper extremity. Dr. Harris noted, “For purposes of calculating [s]chedule [a]ward utilizing
5

Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6 (January 2010); and Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (January 2010).
6

Federal (FECA) Procedure Manual, Part 2 id. at Chapter 2.808.5a (February 2013).

7

See A.M.A., Guides 401-11 (6th ed. 2009). Table 15-3 also provides that, if motion loss is present for a claimant
who has certain wrist conditions denoted by an asterisk on the table, impairment may alternatively be assessed using
section 15.7 (range of motion impairment). Such a range of motion impairment stands alone and is not combined
with a diagnosis-based impairment. Id. at 397, 475-78.
8

Id. at 23-28.

9

The Board notes that Dr. Graves provided an impairment rating but that it was not calculated under the relevant
standards of the sixth edition of the A.M.A., Guides. See supra note 6.

3

[the sixth edition of the A.M.A., Guides], the claimant has three percent upper extremity
impairment for residual problems status post fracture left distal radius [Class of Diagnosis 1C]
(Table 15-3/Page 396).”
The Board notes that Dr. Harris chose a diagnoses-based impairment (wrist fracture) for
appellant’s left upper extremity and assigned her condition the default value of three percent
impairment under Table 15-3 of the sixth edition of the A.M.A., Guides.10 However, Dr. Harris
did not perform a complete impairment rating evaluation in that he did not derive any grade
modifiers (including those for functional history, physical examination, and clinical studies) or
apply the net adjustment formula for appellant’s left upper extremity condition.11
While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence.12 Accordingly, once OWCP undertakes
to develop the medical evidence, it has the responsibility to do so in the proper manner.13
Therefore, the case shall be remanded to OWCP to address the above-mentioned aspects of the
OWCP medical adviser’s rating of appellant’s left upper extremity impairment. After carrying
out such development, OWCP shall issue a de novo decision regarding appellant’s left upper
extremity impairment.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
has more than three percent permanent impairment of her left upper extremity, for which she
received a schedule award. The case is remanded to OWCP for further development.

10

A.M.A., Guides 396, Table 15-3.

11

See supra notes 7 and 8.

12

Russell F. Polhemus, 32 ECAB 1066 (1981).

13

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

4

ORDER
IT IS HEREBY ORDERED THAT the December 10, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: April 7, 2016
Washington, DC

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

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

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

5