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

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

Docket No. 20-0740
Issued: October 6, 2020

Case Submitted on the Record

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

JURISDICTION
On February 18, 2020 appellant filed a timely appeal from a January 28, 2020 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 a medical condition
causally related to the accepted January 16, 2018 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 12, 2018 appellant, then a 50-year-old postal clerk, filed a traumatic injury
claim (Form CA-1) alleging that on January 16, 2018 he injured his right hip and buttock when
sorting and lifting parcels while in the performance of duty. He stopped work on February 6, 2018.
In a February 8, 2018 medical note, Dr. Billy Ford, a Board-certified anesthesiologist,
diagnosed lumbar radiculopathy and a lumbar herniated intervertebral disc. He recommended that
appellant return to limited-duty work.
In a February 9, 2018 personal statement, appellant explained that on or about January 16,
2018 he began to experience pain in his right hip and buttock while sorting parcels. He did not
think much of it at first, but the pain became more severe after 24 hours. Appellant visited Dr. Ford
who scheduled a magnetic resonance imaging (MRI) scan and prescribed pain medication until he
was diagnosed with lumbar radiculopathy on February 8, 2018. He stated that his injury was
related to strenuous activity, repetitive motions, and heavy lifting and that he informed Dr. Ford
that his duties at work consisted of bending and lifting approximately 700 to 800 parcels per day,
with some weighing up to 70 pounds. Dr. Ford scheduled appellant to receive a steroid injection
on February 20, 2018.
In a February 12, 2018 medical note, Robert Lopresto, a physician assistant, noted that
appellant arrived to the emergency department with complaints of pain in his right hip and buttock.
On evaluation he diagnosed right hip and buttock pain and provided him with home care treatment
instructions.
In a statement of even date, appellant explained that on the night of February 11, 2018 he
went to the hospital due to severe pain he experienced in his hip and buttocks. He was told to visit
orthopedics for further evaluation.
Dr. Philip Rafiy, a Board-certified orthopedic surgeon, in a February 12, 2018 medical
report, provided that appellant presented with right hip and buttock pain due to lifting boxes over
the prior month. On review of the February 2, 2018 MRI scan, he diagnosed right trochanteric
bursitis, right ischial gluteal bursitis, lumbar mechanical pain and ruled out radiculopathy. In an
attached medical note, Dr. Rafiy recommended work restrictions for appellant.
Dr. Rafiy noted in a February 21, 2018 medical report that appellant advised that he injured
his back on January 16, 2018 while lifting and sorting boxes at work on a constant basis. He
performed a steroid injection to treat appellant’s right trochanteric bursitis, right ischial gluteal
bursitis, and lumbar mechanical pain.
In a February 26, 2018 medical note, Dr. Rafiy estimated that appellant would be totally
disabled from work from February 26 to March 28, 2018 due to his lumbar mechanical pain and
right ischial gluteal bursitis.
Appellant also submitted multiple medical reports dated from February 8, 2016 to
November 1, 2017 concerning a separate injury to his right ankle and foot.

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In a development letter dated March 16, 2018, OWCP informed appellant that his claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work and that
continuation of pay was not controverted by the employing establishment, and thus, limited
expenses had therefore been authorized. However, a formal decision was now required. OWCP
advised him of the type of factual and medical evidence required to establish his traumatic injury
claim and furnished a questionnaire for his completion to provide further details regarding the
circumstances of the claimed January 16, 2018 employment incident. It also requested a narrative
medical report from appellant’s physician which provided the physician’s rationalized medical
explanation as to how the alleged employment incident caused his diagnosed condition. OWCP
afforded him 30 days to respond.
In response to OWCP’s development questionnaire, appellant submitted a March 23, 2018
statement in which he explained that he injured his back sometime between 9:00 am and 10:00 am
while lifting a box. He believed his injury was a strain and attempted to work through it, but when
the pain did not go away he made a doctor’s appointment. Appellant also clarified that he sustained
a traumatic injury and asserted that continuously lifting boxes for seven to eight hours caused his
condition. He noted that he did not have any other previous injuries or hobbies that contributed to
his pain.
In a March 28, 2018 medical report and an attached note of even date, appellant informed
Dr. Rafiy that his injection provided moderate relief of his symptoms, but he was still experiencing
residual pain. Dr. Rafiy diagnosed right trochanteric bursitis, right ischial gluteal bursitis, and
lumbar mechanical pain, and advised appellant to continue physical therapy. He opined that, as a
result of his injury, appellant was unable to perform his normal work duties.
In an April 3, 2018 doctor’s progress report, Dr. Rafiy diagnosed right hip trochanteric
bursitis, right hip gluteal tendinitis and low back pain. He checked a box marked “Yes” to indicate
his opinion that the employment incident was a competent cause of injury and noted that appellant
was 25 percent impaired temporarily.
Appellant also submitted physical therapy notes with an illegible signature dated from
March 20 to April 11, 2018 detailing his treatment for his diagnosed conditions.
By decision dated April 17, 2018, OWCP denied appellant traumatic injury claim, finding
that the medical evidence of record was insufficient to establish that his diagnosed medical
conditions were causally related to the accepted January 16, 2018 employment incident.
OWCP continued to receive evidence. Appellant submitted additional physical therapy
notes dated from March 5 to April 23, 2018.
On April 27, 2018 appellant requested a review of the written record before an OWCP
hearing representative.
In an April 25, 2018 medical report, Dr. Rafiy explained that appellant’s injuries were
consistent with mechanical repetitive motion causally related to his job duties as a postal worker.
In a letter of even date, he noted appellant’s history of injury and opined, with a reasonable degree
of medical certainty, that appellant’s diagnosed conditions were caused by the January 16, 2018
employment incident.
3

By decision dated August 29, 2018, OWCP’s hearing representative affirmed OWCP’s
April 17, 2018 decision.
On September 18, 2018 appellant submitted a letter dated September 11, 2018,2 in which
he requested reconsideration of OWCP’s August 29, 2018 decision. He attached an unsigned note
explaining trochanteric bursitis is typically caused by repeated blunt trauma to the hips or an acute
trauma that may occur due to improperly lifting or carrying a heavy load.
In a September 6, 2018 letter, Dr. Rafiy reviewed appellant’s history of injury related to
the January 16, 2018 employment incident and diagnosed lumbar mechanical pain, lumbar
discogenic pain, right hip trochanteric bursitis and right ischial pain. He opined that appellant’s
injuries were sustained during the course of his employment on January 16, 2018 and opined that
his diagnoses were consistent with injuries that are causally related to the incident as reported by
appellant.
By decision dated September 17, 2019, OWCP denied modification of its August 29, 2018
decision.
OWCP continued to receive evidence. In an October 9, 2019 letter, Dr. Rafiy explained
that appellant’s diagnosis of right hip bursitis was consistent with the mechanism of action of
contracted muscles while lifting a heavy object. He opined that appellant’s injury was caused by
the January 16, 2018 employment incident.
On October 31, 2019 appellant requested reconsideration of OWCP’s September 17, 2019
decision.
By decision dated January 28, 2020, OWCP denied modification of its September 17, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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

Appellant resubmitted his request for reconsideration on June 19, 2019.

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

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to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.9 The opinion of the physician
must be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.10
ANALYSIS
The Board finds that the case is not in posture for decision.
In a series of reports, Dr. Rafiy provided a medical history, physical examination findings,
and a review of diagnostic testing.
Dr. Rafiy described appellant’s employment duties and noted that on January 16, 2018 he
began to feel pain in his right hip and buttock after sorting and lifting boxes on a constant basis.
He described appellant’s physical examination findings, which revealed that he was experiencing
residual pain since the January 16, 2018 employment incident. Dr. Rafiy reviewed diagnostic
testing, explaining that a February 2, 2018 MRI scan revealed right trochanteric bursitis and right
ischial gluteal bursitis and ruled out radiculopathy. He opined that appellant’s injuries to his right
hip are consistent with the mechanical repetitive motions of appellant’s employment duties as a
postal worker. In his October 9, 2019 letter, Dr. Rafiy again explained that appellant’s diagnosis
of right hip bursitis was consistent with the mechanism of action of contracted muscles while
lifting heavy objects. The Board has long held that it is unnecessary that the evidence of record in
a case be so conclusive as to suggest causal connection beyond all possible doubt. Rather, the
4
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

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

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

8

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

K.V., Docket No. 18-0723 (issued November 9, 2018).

10

I.J., 59 ECAB 408 (2008).

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evidence required is only that necessary to convince the adjudicator that the conclusion drawn is
rational, sound, and logical.11 Accordingly, Dr. Rafiy’s medical opinion is well-rationalized and
logical and is therefore sufficient to require further development of appellant’s claim.12
While Dr. Rafiy did not fully explain the mechanism of the injury, he provided an opinion
based on examination findings and an accurate factual and medical background, that lifting heavy
boxes on a constant basis precipitated appellant’s right trochanteric bursitis and right ischial gluteal
bursitis.13 He demonstrated an understanding of appellant’s employment duties and discussed how
these factors caused or aggravated his condition. Dr. Rafiy provided a medical history and based
his findings on diagnostic testing and physical examination.14
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of establishing entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.15
Although Dr. Rafiy’s reports are insufficient to meet appellant’s burden of proof to
establish his claim, they are sufficient to require OWCP to further develop the medical evidence
and the case record.
On remand OWCP shall prepare a statement of accepted facts (SOAF) and then refer
appellant, along with an updated SOAF and the case record, to an appropriate second-opinion
physician to obtain a fully-rationalized opinion as to whether his conditions are causally related to
the January 16, 2018 employment incident, directly or through aggravation, precipitation, or
acceleration.16 The chosen physician shall provide a rationalized opinion as to whether the
diagnosed conditions are causally related to the accepted factors of appellant’s federal
employment. If the physician opines that the diagnosed conditions are not causally related, he or
she must explain with rationale how or why the opinion differs from that of Dr. Rafiy’s. Following
this and any other further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

11

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.
12

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
13

S.T., Docket No. 18-1119 (issued March 6, 2019).

14

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

15

R.M., Docket No. 20-0342 (issued July30, 2020).

16

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

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ORDER
IT IS HEREBY ORDERED THAT the January 28, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 6, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.E., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, MOUNT
RAINIER NATIONAL PARK, Ashford, WA,
Employer
__________________________________________

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

Docket No. 14-1500
Issued: November 6, 2014

Case Submitted on the Record

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

JURISDICTION
On June 17, 2014 appellant, through counsel, filed a timely appeal of the March 31, 2014
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her request
for reconsideration without conducting a merit review. Because more than 180 days has elapsed
since issuance of the most recent merit decision dated October 7, 2013 to the filing of this appeal
on June 17, 2014, the Board lacks jurisdiction to review the merits of the claim pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 24, 2004 appellant, then a 39-year-old laborer, injured her back while lifting a
garbage can lid. OWCP accepted the claim for lumbar strain. Appellant did not stop work but
returned to a full-time light-duty position.
Appellant underwent an electromyogram (EMG) on December 4, 2008 which revealed no
lumbar radiculopathy or peripheral neuropathy. She came under the treatment of Dr. W. Brandt
Bede, a Board-certified orthopedic surgeon, from February 18, 2009 to October 20, 2011, for
back pain which developed after the June 24, 2004 work injury. In reports dated February 18,
2009 to October 20, 2011, Dr. Bede noted that appellant continued to experience increased low
back pain with radiation into the right buttock, thigh and leg. He noted limited range of motion
of the spine, intact motor and sensory findings and symmetrical reflexes. Dr. Bede diagnosed
degenerative disc disease, lumbosacral strain, facet arthropathy at L4-5 and L5-S1 without
evidence of disc herniation. He opined that appellant was disabled from work.
On November 7, 2011 appellant filed a CA-7, claim for compensation for total disability,
beginning September 11, 2004.
Appellant submitted reports from Dr. Bede dated November 9, 2011 to February 3, 2012.
Dr. Bede treated her for increased back pain with radiation into the groin and right thigh. He
noted findings of normal gait, intact motor and sensory findings and intact reflexes. Dr. Bede
diagnosed degenerative disc disease of the lumbar spine and plantar fasciitis of the bilateral feet.
He recommended anti-inflammatory medication and weight loss.
In a letter dated November 21, 2011, OWCP requested that appellant submit medical
evidence establishing that she was totally disabled due to the accepted condition for the period
claimed.
Appellant submitted a magnetic resonance imaging (MRI) scan of the lumbar spine dated
December 7, 2011. It revealed mild lumbar disc and facet degeneration without central canal or
neural foraminal stenosis and mild levoconvex lumbar scoliosis.
In a decision dated March 7, 2012, OWCP denied appellant’s claim for compensation for
total disability for the period beginning September 11, 2004. It found that the medical evidence
of record failed to support total disability commencing that date.
Appellant requested an oral hearing which was held on June 29, 2012. She submitted
reports from Dr. Bede dated May 10 to July 27, 2012 who treated her for a work-related low
back injury. Dr. Bede noted a history of appellant’s low back injury on June 24, 2004. He stated
that she was treated with anti-inflammatory medications and physical therapy without success.
Dr. Bede opined that more likely than not appellant had lumbosacral strain and facet strain
directly related to the work injury of June 24, 2004. He opined that she could not return to her
previous job or other work due to her industrial injury.
In a decision dated September 20, 2012, an OWCP hearing representative affirmed the
March 7, 2012 decision.

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On July 9, 2013 appellant through her attorney requested reconsideration. She submitted
reports from Dr. Bede dated September 13, 2012 to June 5, 2013. Dr. Bede treated appellant for
persistent low back pain. He noted limited range of motion of the spine, normal gait and intact
motor and sensory examination. Dr. Bede diagnosed degenerative disc disease of the lumbar
spine and opined that the L1-L2 and L3-L4 disc protrusions were related to appellant’s work
injury and other degenerative changes were aggravated by the industrial injury. In reports dated
July 18 and August 29, 2013, he noted her complaints of low back pain. Dr. Bede noted no
change in the physical examination and diagnosed degenerative disc disease of the lumbar spine.
In a decision dated October 7, 2013, OWCP denied modification of the decision dated
September 20, 2012.
On January 15, 2014 appellant through her attorney requested reconsideration. She
asserted that OWCP erred in concluding that she did not submit sufficient medical evidence to
support her claim for compensation. Appellant referenced a December 4, 2013 report from a
Dr. Douglas Seiler; however, this report is not of record. She submitted an MRI scan of the
lumbar spine dated December 7, 2011 performed by Dr. Seiler, previously of record. Also
submitted were reports dated October 25 and December 4, 2013 and January 30, 2014 from
Dr. Bede who treated appellant in follow-up for lower back pain. He noted her complaints of
aching pain in her lower back which increased with standing and sitting. Dr. Bede noted
findings of full range of motion of the lumbar spine, normal gait, intact sensory and motor
examination and symmetrical reflexes. He diagnosed degenerative disc disease of the lumbar
spine. Dr. Bede opined that more likely than not the disc protrusions on the MRI scan of
December 7, 2011 were related to the industrial injury and that the industrial injury aggravated
the preexisting degenerative disc disease.
In a March 31, 2014 decision, OWCP denied appellant’s request for reconsideration on
the grounds that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or

2

5 U.S.C. § 8128(a).

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“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4
ANALYSIS
OWCP denied appellant’s claim for wage-loss compensation for the period beginning
September 11, 2004. It found that the evidence of record failed to support total disability.
Thereafter, OWCP denied appellant’s reconsideration request, without a merit review. As noted,
the Board does not have jurisdiction over the October 7, 2013 merit decision.
The issue on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In her
request for reconsideration, appellant did not establish that OWCP erroneously applied or
interpreted a specific point of law. Appellant, through her attorney, asserted that she submitted
sufficient medical evidence to support her claim for compensation and referenced a report from
Dr. Douglas Seiler dated December 4, 2013. As noted, the record on appeal does not contain this
report. Appellant’s assertions do not show a legal error by OWCP or a new and relevant legal
argument. The underlying issue in this case is whether appellant submitted medical evidence
establishing that she was totally disabled due to the accepted condition for the period
commencing September 11, 2004. That is a medical issue which must be addressed by relevant
new medical evidence.5 Appellant did not submit any new and relevant medical evidence in
support of her claim.
Appellant submitted an MRI scan of the lumbar spine dated December 7, 2011 performed
by Dr. Seiler. However, this report is duplicative of evidence previously submitted and was
considered by OWCP in its March 7, 2012 decision. Evidence that repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.6 Therefore, this report is insufficient to require OWCP to reopen the claim for
a merit review.
Appellant submitted reports from Dr. Bede dated October 25 and December 4, 2013 and
January 30, 2014. Dr. Bede noted an essentially normal physical examination and diagnosed
degenerative disc disease of the lumbar spine. He opined that more likely than not the disc
protrusions on the MRI scan of December 7, 2011 were related to the industrial injury and the
injury aggravated the preexisting degenerative disc disease. However, these reports are similar
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b).

5

See Bobbie F. Cowart, 55 ECAB 746 (2004).

6

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984).

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to Dr. Bede’s previous reports dated July 27, 2012 and July 18 and August 29, 2013 which were
previously submitted and considered by OWCP in its decision dated September 20, 2012 and
October 7, 2013 and found insufficient. Evidence that repeats or duplicates evidence already in
the case record has no evidentiary value and does not constitute a basis for reopening a case.7
Therefore, these reports are insufficient to require OWCP to reopen the claim for a merit review.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). She did not establish that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
Appellant did not submit any evidence or argument in support of her reconsideration
request that warrants reopening of her claim for a merit review under 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2014
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
7

Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Saint Louis, MO, Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1224
Issued: June 23, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 20, 2016 appellant, through counsel, filed a timely appeal from a November 23,
2015 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.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of compensation in
the amount of $61,659.25 for the period September 1, 2009 through November 15, 2014;
(2) whether OWCP abused its discretion in denying waiver of recovery of the overpayment; and
1

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

5 U.S.C. § 8101 et seq.

(3) whether it properly reduced appellant’s continuing compensation payments by $500.00 every
28 days to recover the overpayment.
FACTUAL HISTORY
On February 1, 2002 appellant, then a 58-year-old rural letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that she twisted her left knee when entering her postal
vehicle. OWCP accepted the claim for left knee lateral meniscus tear and left pelvic
dysfunction. Appellant received medical and wage-loss compensation intermittently until she
stopped work completely on June 5, 2010 and was placed on the periodic rolls.
Appellant submitted her annual EN1032 form, dated September 20, 2014, on which she
advised OWCP that she was receiving a regular retirement check (“not disability”) from the
Social Security Administration (SSA).
On September 26, 2014 OWCP requested clarification from appellant as to whether and
when she began receiving retirement benefits. It also requested that the SSA verify the benefits
she had received. In a November 7, 2014 Federal Employees Retirement System (FERS)/SSA
Dual Benefits Calculations worksheet, SSA provided appellant’s SSA rate with FERS and SSA
rate without FERS from September 2009 through December 2013.
In a November 17, 2014 memorandum, OWCP advised appellant of a potential
overpayment because she was receiving a prohibited dual benefit. It noted that she was receiving
wage-loss compensation for her federal position, and that a portion of her SSA retirement
benefits were attributable to her federal employment. OWCP noted that a FERS offset should
have been deducted from her FECA compensation beginning September 1, 2009 and continuing
through November 15, 2014.
In a second letter dated November 19, 2014, OWCP informed appellant that her current
monthly benefit amount was $3,475.00, but that SSA had determined that she was only entitled
to $2,532.45 as $942.55 of her monthly social security payment was attributable to her federal
employment. It noted the difference of $942.55 must be offset against her compensation
benefits. Accordingly, the offset of appellant’s compensation payments would begin with her
benefit payment dated November 16, 2014 and her new net compensation amount would be
$1,982.65, every 28 days.
OWCP provided a worksheet wherein it calculated the FERS offset by subtracting her
SSA rate without FERS from the SSA rate with FERS. The monthly FERS offset amount was
multiplied by 12 and divided by 13 to calculate FERS offset for the 28-day compensation cycle.
OWCP calculated the overpayment by adding the FERS offset by the number of days actually
overpaid to arrive at $61,659.25.
By notice dated December 19, 2014, OWCP made a preliminary determination of an
overpayment of compensation in the amount of $61,659.25 for the period September 1, 2009
through November 15, 2014 as appellant was paid dual benefits under FECA and SSA without
an appropriate offset. It found that she was without fault in the creation of the overpayment.
Appellant was informed of her options if she wished to challenge the fact of overpayment or to
request waiver of recovery of the overpayment. If she wished a waiver of the overpayment,

2

appellant was advised to submit financial information and a completed overpayment recovery
questionnaire (OWCP-20) within 30 days.
On December 31, 2014 appellant, through counsel, requested a prerecoupment hearing
before an OWCP hearing representative.
At the September 9, 2015 hearing, counsel argued that OWCP had not met its burden of
proof to establish fact of overpayment because there was no evidence that appellant was under
FERS. He explained that appellant was employed as a career employee by the employing
establishment in 1980, prior to the establishment of FERS.3 As such, this would put appellant
under Civil Service Retirement System (CSRS) which would not require an offset for FECA
benefits. Counsel explained that OWCP had failed to develop the evidence and was under an
obligation to request this information from the Office of Personnel Management (OPM). As
such, OWCP could not make a proper overpayment determination. Moreover, counsel argued
that as appellant was without fault in the creation of the overpayment of compensation,
repayment should be waived as it would create a substantial hardship and that she had
detrimentally relied on the benefits received. The record was held open for 30 days.
Following the hearing, appellant submitted a 2007 and 2011 United States Postal Service
(USPS) Personal Statement of Benefits. The benefits statement offered a personalized summary
of appellant’s total compensation for both direct pay and benefits. On both the 2007 and 2011
statements, appellant’s retirement plan was classified as 5 CSRS/Offset. Both of the statements
noted the annual amounts that had been paid to social security Old-age, Survivors and Disability
Insurance (OASDI) by appellant and matched by the employing establishment. In an
accompanying statement, appellant argued that she was not under FERS and therefore was not
required to have her benefits offset. She explained that the USPS Personal Statement of Benefits
established that her retirement plan was 5 CSRS/Offset. Appellant explained that she was under
CSRS but had also been paying into social security OASDI for all of these years.
Appellant submitted an OWCP-20 form and numerous other financial documents,
arguing that the overpayment of compensation should be waived as repayment would cause her
financial hardship.
By decision dated November 23, 2015, an OWCP hearing representative finalized the
overpayment of compensation in the amount of $61,659.25 for the period September 1, 2009
through November 15, 2014 as appellant was paid dual benefits under FECA and SSA without
an appropriate offset. It noted that SSA was the agency which determined whether benefits are
attributable to federal service, that OWCP did not have access to appellant’s payroll records, and
that there was no reason for the district office to question the offset information provided by
SSA. The hearing representative also found that the 2007 and 2011 benefits statements provided
by appellant, classifying her retirement plan as CSRS, failed to establish that she was not
covered under FERS, and appellant had failed to submit any other information from SSA to
establish the offset information they provided was incorrect.

3

The record reflects that a USPS health benefits form notes appellant’s conversion to a rural carrier (career
appointment) on May 12, 1984.

3

The hearing representative found that appellant was not at fault in the creation of the
overpayment because there was no evidence that she knew or should have known that she was
not entitled to the payment received. She determined, however, that the overpayment was not
subject to waiver based on the financial information and documentation provided. The hearing
representative noted that appellant had a monthly household income of $6,714.63, monthly
household expenses of $4,205.31, and household assets of $270,000.00. She further determined
that appellant’s household income exceeded her current monthly household expenses by
$2,675.00, which exceeded the resource base for an individual with a spouse and exceeded her
documented ordinary and necessary monthly expenses by more than $50.00. OWCP’s hearing
representative determined that she could repay the overpayment by deducting $500.00 from
continuing compensation every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.4 Section 8129(a) of FECA provides, in pertinent part: “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”5
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service.6 OWCP
procedures provide that, while SSA benefits are payable concurrently with FECA benefits, the
following restrictions apply: in disability cases, FECA benefits will be reduced by SSA benefits
paid on the basis of age and attributable to the employee’s federal service.7
ANALYSIS
The Board finds that the case is not in posture for decision regarding whether OWCP
properly determined that appellant received a $61,659.25 overpayment of compensation.8 With
respect to the fact and amount of the claimed overpayment, OWCP based its overpayment
determination on appellant having reportedly received SSA age-related benefits for her federal
service, under the FERS retirement plan. Relying on information provided by the SSA, OWCP
found that she had been receiving a dual benefit dating back to September 2009. The Board

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

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

7

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

J.J., Docket No. 14-785 (issued September 3, 2014).

4

finds that appellant has established that she was under the CSRS/Offset benefit plan, not the
FERS retirement plan.9
The record establishes that appellant’s federal civilian service began in 1980 and at that
time would have been covered under the CSRS plan.10 The employing establishment’s Personal
Benefits statement of record, however, noted appellant’s retirement plan as “5 CSRS/OFF.”
Appellant has also testified that she was never under the FERS retirement plan. The evidence of
record does not substantiate that appellant was under the FERS retirement plan.
OWCP determined that appellant received an overpayment of compensation from
September 1, 2009 through November 15, 2014 because she received compensation from OWCP
and SSA benefits without an appropriate offset. The offset provision of section 8116(d)(2)
applies to age-related SSA benefits that are attributable to federal service.
The Board also finds that the record does substantiate, based upon appellant’s own
statement as well as the employing establishment Personal Benefits statements, that she paid into
social security OASDI.
Appellant received age-based SSA benefits after retirement as a result of her
contributions to SSA under the CSRS-Offset system. As she received SSA benefits based in part
of her federal service concurrently with disability compensation from OWCP without an
appropriate offset, she received an overpayment of compensation.11
The Board finds, however, that the case is not in posture for decision regarding the
amount or period of the overpayment. SSA provided OWCP with information regarding
appellant’s rate of SSA benefits beginning September 2009 both with and without FERS. As
discussed, however, she was not covered by FERS, but was instead under the CSRS-Offset
retirement plan. It is not clear from the record whether the offset rates under the CSRS-Offset
retirement plan are the same as the rates in FERS plan. On remand, OWCP should obtain
additional information from SSA and OPM regarding appellant’s retirement system and her SSA
rate with and without any offset required based on her federal civilian service.12
The Board finds that the case is not in posture for decision.13 Accordingly, the Board will
remand the case for OWCP to recalculate the amount of the overpayment.14

9

A.P., Docket No. 12-122 (issued May 7, 2012).

10

Under CSRS, federal employees were generally exempt from paying social security taxes; social security
OASDI. 5 U.S.C. §§ 8331-8351.
11

Supra note 6.

12

J.M., Docket No. 12-0954 (issued November 26, 2012).

13

F.F., Docket No. 16-0063 (issued June 24, 2016).

14

Supra note 12.

5

CONCLUSION
The Board finds that OWCP has established fact of overpayment of compensation for
which appellant was without fault, but that the case is not in posture for decision regarding the
amount of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 23, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision of the Board.
Issued: June 23, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Oakland, CA, Employer
__________________________________________

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

Docket No. 18-1145
Issued: January 4, 2019

Case Submitted on the Record

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

JURISDICTION
On May 15, 2018 appellant filed a timely appeal from an April 25, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
the last merit decision, dated June 7, 2017, to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 29, 2016 appellant, then a 50-year-old transportation security
officer/screener, filed a traumatic injury claim (Form CA-1) alleging that on December 28, 2016,
he pulled a bag off a conveyor belt at work and twisted his left hand. He stopped work on the date
of injury and did not return.
In a report dated February 22, 2017, Dr. Sachin Kapoor, an attending osteopathic physician
Board-certified in internal and occupational medicine, diagnosed a nondisplaced spiral-type
fracture of the fourth metacarpal. He prescribed physical therapy. In a report dated February 28,
2017, Dr. Kapoor noted that the fracture was healing well.
Appellant filed claims for compensation (CA-7 forms) for intermittent work absences from
January 8 to March 4, 2017, and March 15 to April 15, 2017.
In a letter dated March 11, 2017, the employing establishment controverted the claim,
contending that appellant had filed the claim as he had been provided with a notice of proposed
removal on November 28, 2016 due to excessive absences. Appellant had been removed from the
employing establishment effective January 6, 2017.
On March 31, 2017 OWCP accepted that the December 28, 2016 employment incident
caused a left wrist sprain and a 4th metacarpal shaft fracture of the left hand.
In a report dated March 22, 2017, Dr. Kapoor found that the accepted fracture had resolved
and returned appellant to full-duty work.
By decision dated June 7, 2017, OWCP denied appellant’s claim for wage-loss
compensation from January 8 to April 15, 2017 as the medical evidence of record was insufficient
to establish that the accepted left 4th metacarpal fracture totally disabled him from work for that
period.
On April 17, 2018 appellant requested reconsideration. In support thereof, he submitted
an April 13, 2018 statement asserting that he was entitled to wage-loss compensation for his
attendance at medical appointments and physical therapy treatment sessions through April 2017.
By decision dated April 25, 2018, OWCP denied reconsideration under 5 U.S.C. § 8128(a),
finding that appellant did not submit new and relevant evidence or legal argument sufficient to
warrant reopening the merits of his claim. It found that appellant’s April 13, 2018 statement was
not relevant to the medical issue of whether he was disabled from work for any portion of the
claimed period.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
2

5 U.S.C. § 8128(a).

2

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review of
an OWCP decision denying or terminating a benefit, a claimant’s application for review must be
received within one year of the date of that decision.4 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.5
In support of a request for reconsideration, claimant is not required to submit all evidence
which may be necessary to discharge his or her burden of proof.6 He or she needs only to submit
relevant, pertinent evidence not previously considered by OWCP.7 When reviewing an OWCP
decision denying a merit review, the function of the Board is to determine whether OWCP properly
applied the standards set forth at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim.
The Board finds that appellant did not show that OWCP erroneously applied or interpreted
a specific point of law. Moreover, appellant did not advance a relevant legal argument. On
reconsideration, he provided his April 13, 2017 statement, contending that he was entitled to wageloss compensation for attendance at medical appointments and physical therapy sessions.9
However, appellant was removed from employment effective January 6, 2017, which was prior to
the dates claimed on his Form CA-7 for intermittent disability. Therefore, he would not have
incurred any wage loss for attending medical appointments and physical therapy sessions during
the period claimed.10 As appellant’s legal argument has no reasonable color of validity, he did not
allege that OWCP erroneously applied or interpreted a specific point of law or advance a relevant

3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

Helen E. Tschantz, 39 ECAB 1382 (1988).

7

See Mark H. Dever, 53 ECAB 710 (2002).

8

Annette Louise, 54 ECAB 783 (2003).

9

See D.E., Docket No. 16-1604 (issued Feb. 1, 2017) (appellant would be entitled to compensation for any time
missed from work due to medical examination or treatment for an employment-related condition).
10
The Board notes that while appellant has asserted that OWCP has denied his claim for mileage reimbursement,
that issue is not presently before the Board as there is no adverse decision of record denying such a claim.

3

legal argument, and he is not entitled to a review of the merits of his claim based on the first and
second requirements under 20 C.F.R. § 10.606(b)(3).11
A claimant may be entitled to a merit review by submitting relevant and pertinent new
evidence or argument, but the Board finds that appellant did not submit any such evidence or
argument in this case.12
As appellant’s application for review did not meet any of the three requirements
enumerated under 20 C.F.R. § 10.606(b)(3), the Board finds that OWCP properly denied the
request for reconsideration without reopening the case for a review on the merits.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

11

See C.F., Docket No. 17-1611 (issued December 13, 2017).

12

Supra note 3.

13

R.C., Docket No. 17-0595 (issued September 7, 2017); M.E., 58 ECAB 694 (2007) (when an application for
reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will
deny the application for reconsideration without reopening the case for a review on the merits).

4

ORDER
IT IS HEREBY ORDERED THAT the April 25, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 4, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, GREENE POST
OFFICE, Greene, NY, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0644
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On March 19, 2021 appellant, through counsel, filed a timely appeal from an October 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 OWCP received additional evidence following the October 5, 2020 decision. 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include additional conditions as a consequence of the accepted
December 12, 2014 employment injury.
FACTUAL HISTORY
This case has been previously before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 5, 2015 appellant, then a 51-year-old rural carrier, filed a notice of recurrence
(Form CA-2a) claiming disability under OWCP File No. xxxxxx938.5 She alleged that she
reinjured her left shoulder moving mail from her vehicle to her supervisor’s vehicle on
December 12, 2014 while in the performance of duty. Appellant stopped work on that date.
OWCP converted the recurrence claim to a new traumatic injury claim (Form CA-1) and assigned
OWCP File No. xxxxxx312. On January 14, 2016 OWCP accepted the claim for partial rotator
cuff tear of the left shoulder and paid appellant retroactive wage-loss compensation on the
supplemental rolls as of February 1, 2015 and on the periodic rolls as of July 24, 2016.
In a May 5, 2016 report, Dr. Thomas Van Gorder, a Board-certified orthopedic surgeon,
diagnosed status post shoulder repair for rotator cuff tear of the left shoulder and a partial cuff tear
of the right shoulder. He noted her initial injury to her left shoulder in June 2013, and her
subsequent injury to her left shoulder in December 2014. He related that appellant had developed
discomfort in the right shoulder, noting that she did not have specific trauma to the right shoulder,
and opined that her right shoulder condition resulted from favoring her left shoulder. Dr. Van
Gorder noted that a right shoulder magnetic resonance imaging (MRI) scan in June 2015 revealed
a partial cuff tear and tendinitis, and that appellant was unable to obtain treatment for the right
shoulder. He also noted that the right shoulder had excellent strength and a little subacromial
crepitus.
In a July 28, 2016 report, Dr. Van Gorder diagnosed status post rotator cuff tear of the left
shoulder and a partial tear with tendinitis of the right shoulder. Regarding the right shoulder, he
explained that appellant developed impingement pain, tendinitis, and discomfort of the right
shoulder, which he opined “is definitely related to her left shoulder injury.” Dr. Van Gorder
concluded that her right shoulder condition was caused by overuse secondary to favoring her left
shoulder, which had been injured at work.
In an August 3, 2016 report, Dr. Van Gorder repeated his opinion from his July 28, 2016
report regarding the status and casual relationship of the right shoulder condition.

4

Docket No. 18-1514 (issued July 18, 2019).

5

In OWCP File No. xxxxxx938, OWCP accepted appellant’s July 22, 2013 occupational disease claim (Form
CA-2) for complete tear of the left rotator cuff.

2

In a letter dated August 29, 2016, counsel requested that the acceptance of appellant’s
claim be expanded to include the additional conditions of impingement, tendinitis, and a partial
rotator cuff tear of the right shoulder. He alleged that the conditions were a consequence of overuse
of the right shoulder due to her accepted left shoulder conditions. Counsel argued that
Dr. Van Gorder provided an unequivocal opinion and the requisite medical rationale to establish
that appellant’s right shoulder condition was related to overuse to compensate for the work-related
injury to her left shoulder.
In a development letter dated November 18, 2016, OWCP advised appellant of the
evidence needed to establish her claim for consequential injury to her right shoulder. It afforded
appellant 30 days to submit additional evidence.
OWCP thereafter received a June 12, 2015 MRI scan of the right shoulder interpreted by
Dr. Imanual Somers-Dehaney, a Board-certified diagnostic radiologist, which revealed a partial
tear of the supraspinatus partial articular surface tendon with avulsion of approximately 50 percent,
impingement on the myotendinous junction of the supraspinatus tendon with fluid along both
articular and bursal substance of subacromial subdeltoid bursa, bursitis, and biceps tendon
tenosynovitis.
On December 16, 2016 OWCP requested that a district medical adviser (DMA) provide an
opinion as to whether the accepted employment injury to appellant’s left shoulder was competent
to produce the injury to the right shoulder. It requested that the DMA review and specifically
comment on the opinion provided by Dr. Van Gorder in his July 28 and August 3, 2016 reports
regarding the conditions of right shoulder impingement, right shoulder tendinitis, and right partial
rotator cuff tear.
In a December 29, 2016 report, Dr. David J. Slutsky, a Board-certified orthopedic hand
surgeon serving as a DMA, noted appellant’s history of injury and medical treatment. Regarding
the right shoulder conditions, the DMA concluded that the acceptance of appellant’s claim should
not be expanded to include the consequential conditions of right shoulder impingement, right
shoulder tendinitis, and right partial rotator cuff tear. He advised that it was impossible to
determine with any certainty whether the left shoulder condition had caused the right shoulder
condition, unless an MRI scan of the right shoulder was performed prior to the work-related injury
of the left shoulder on December 12, 2014. The DMA explained that an asymptomatic partial right
rotator cuff tear of the right shoulder could not be ruled out and that an MRI scan of the right
shoulder prior to the December 12, 2014 left shoulder injury was “the only way to determine if
this lesion was preexisting or whether it developed following the accepted work -related injury.”
He referred to Dr. Van Gorder’s December 18, 2014 notes that appellant was pain free with normal
shoulder ROM following the left rotator cuff repair and explained that overuse of the right shoulder
was “not medically probable in view of the normal functioning of her left shoulder. ” The DMA
also reviewed Dr. Van Gorder’s medical reports dated July 28 and August 3, 2016 and noted that
appellant stopped work in December 2014 and remained off work since that time, and that there
was no mention of appellant’s right shoulder pain until May 5, 2016, almost two years later. He
further noted that appellant had a right shoulder MRI scan on June 12, 2015, more than one year
following the left rotator cuff repair, and explained that if she “had remained working in some
capacity, especially at a job that required overhead lifting, it would be reasonable to assign the
patient’s development of right shoulder pain and partial rotator cuff tear to overuse, but this is not
the case.” The DMA noted that, if additional medical records were provided that documented the
3

onset of appellant’s right shoulder pain while she was still employed by the employing
establishment or at any other job following the left rotator cuff repair, then the issue of causation
could be revisited.
By decision dated March 8, 2017, OWCP denied expansion of the acceptance of
appellant’s claim, finding that the medical evidence of record was insufficient to establish that the
conditions of right shoulder impingement, right shoulder tendinitis, and right partial rotator cuff
tear were consequential to the accepted left shoulder employment injury.
By letter dated June 20, 2017, OWCP referred appellant for a second opinion examination
with Dr. Kevin Scott, a Board-certified orthopedic surgeon, to assess appellant’s current condition.
An August 31, 2017 MRI scan of the right shoulder interpreted by Dr. Andrew
Goldschmidt, a Board-certified diagnostic radiologist, revealed the absence of a full-thickness
rotator cuff tear. In a July 13, 2017 report, Dr. Scott noted appellant’s history of injury and
treatment, examined appellant, and provided physical examination findings. He found full range
of motion (ROM) of both shoulders and diagnosed left shoulder rotator cuff tear. Dr. Scott
explained that there were no other injuries due to the December 12, 2014 employment injury. He
noted appellant’s preexisting left shoulder rotator cuff tear from her 2013 injury. Dr. Scott
reviewed the June 12, 2015 MRI scan of the right shoulder, which revealed partial tearing of the
supraspinatus tendon, subacromial bursitis, and biceps tendon tenosynovitis. He concluded that
the accepted conditions had resolved.
On March 6, 2018 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP had reached a false conclusion based upon the report of the DMA, Dr. Slutsky, that
the DMA’s report should not have been relied upon, and that appellant should have been referred
for a second opinion evaluation regarding the right shoulder.
OWCP received additional medical evidence.
In a March 20, 2018 report, Dr. Michael B. Lax, Board-certified in occupational medicine,
examined appellant and provided his findings. He diagnosed bilateral rotator cuff tears. Dr. Lax
opined that, within a reasonable degree of medical certainty, appellant’s work as a rural postal
delivery worker with many years of exposure to heavy lifting (40-pound buckets of mail) in small
spaces (her delivery car), repetitive movements (upwards of 500 stops for mail), and also a few
specific events, including lifting heavy buckets of mail in December 2014 and turning in her car
to grab a package, contributed significantly to the development of both bilateral chronic shoulder
pain and rotator cuff tears.
On April 30, 2018 OWCP requested clarification from Dr. Scott, regarding whether
appellant developed a right shoulder condition as a consequence of her accepted work-related left
shoulder condition.
In a May 3, 2018 addendum, Dr. Scott noted the definition of a consequential condition,
referred to his prior report and examination, and opined, “I do not find a consequential injury for
the left or right shoulder.”
By decision dated May 29, 2018, OWCP denied modification of the March 8, 2017
decision.
4

On August 2, 2018 appellant, through counsel, filed a timely appeal from the May 29, 2018
OWCP merit decision. By decision dated July 18, 2019, the Board affirmed the May 29, 2018
decision.6
OWCP continued to receive medical evidence regarding appellant’s left shoulder
condition.
On July 17, 2020 appellant, through counsel, requested reconsideration and submitted a
March 7, 2018 report from Dr. Lax. Counsel argued that a conflict existed between Dr. Lax and
the DMA, Dr. Slutsky, as to whether appellant suffered a consequential injury.
In a March 7, 2018 letter, Dr. Lax noted that he saw appellant on August 8, 2017,
referenced his physical findings from August 8, 2017, and advised that appellant suffered from a
right shoulder condition characterized by a rotator cuff tear and impingement. He related that
appellant gave a history that her right shoulder became symptomatic in 2014, shortly after she had
returned to work following a left shoulder rotator cuff repair and subsequent surgical repair related
to OWCP File No. xxxxxx938. Dr. Lax explained that appellant had just recuperated from surgery
and was protecting her left shoulder and utilizing her right arm to compensate. He opined that the
“same work duties, which caused the left shoulder injury then contributed to the injury in the right
shoulder. Consequently, it is my opinion that [appellant’s] right shoulder impingement and rotator
cuff tear was caused or aggravated by her attempting to compensate for the left shoulder injury.”
Dr. Lax noted that he had reviewed the DMA’s December 29, 2016 report and disagreed that
normal ROM and reduced pain in the left shoulder precluded the likelihood that appellant was
compensating for the left shoulder by using her right shoulder. He opined that “it was only natural
for her to protect the left shoulder from reinjury by using the right arm more.” Dr. Lax noted that
Dr. Van Gorder obtained an MRI scan of her right shoulder in June 2015, which supported that
the symptoms were present. He explained that an MRI scan was not usually pursued until the
symptoms became chronic.
By decision dated October 5, 2020, OWCP denied modification of the July 18, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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, 7 that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

6

Supra note 4.

7

K.R., Docket No. 20-0995 (issued January 29, 2021); A.W., Docket No. 19-0327 (issued July 19, 2019); S.B.,
Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

employment injury.8 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease. 9
The general rule respecting consequential injuries is that, when the primary injury is shown
to have arisen out of and in the course of employment, every natural consequence that flows from
the injury is deemed to arise out of the employment, unless it is the result of an independent
intervening cause, which is attributable to the employee’s own intentional conduct. 10 The
subsequent injury is compensable if it is the direct and natural result of a compensable primary
injury. With respect to consequential injuries, the Board has held that, where an injury is sustained
as a consequence of an impairment residual to an employment injury, the new or second injury,
even though nonemployment related, is deemed, because of the chain of causation, to arise out of
and in the course of employment and is compensable. 11
A claimant bears the burden of proof to establish a claim for a consequential injury.12 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the accepted employment injury. 13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that acceptance
of her claim should be expanded to include additional conditions as a consequence of the
December 12, 2014 employment injury.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s May 29, 2018 merit decision because the
Board considered that evidence in its July 18, 2019 decision. Findings made in prior Board
decisions are res judicata absent further review by OWCP under section 8128 of FECA. 14

8

J.B., Docket No. 20-1566 (issued August 31, 2021); see J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
9

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).
10

See L.M., Docket No. 18-1514 (issued July 18, 2019); K.D., Docket No. 17-1894 (issued August 6, 2018); A.M.,
Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487 (2004); Arthur Larson & Lex K.
Larson, The Law of Workers’ Compensation § 10-1.
11

See K.D, id.; see also S.S., 59 ECAB 315 (2008).

12

See C.H., Docket No. 20-0228 (issued October 7, 2020); P.P., Docket No. 19-1359 (issued April 30, 2020).

13

See T.S., Docket No. 20-0968 (issued August 17, 2021); K.W., Docket No. 18-0991 (issued December 11, 2018);
P.M., Docket No. 18-0287 (issued October 11, 2018).
14

See M.F., Docket No. 21-0390 (issued August 23,2021); P.B., Docket No. 20-0124 (issued March 10, 2021);
J.S., Docket No. 19-0022 (issued November 4, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

6

In a March 7, 2018 letter, Dr. Lax referred to appellant’s right shoulder MRI scan from
June 2015, which revealed a partial cuff tear and tendinitis. He explained that it was his “opinion
that [appellant’s] right shoulder impingement and rotator cuff tear was caused or aggravated by
her attempting to compensate for the left shoulder injury.” However, the record reflects that, while
appellant had returned to work following her left shoulder injury in OWCP File xxxxxx938, she
did not return to work following the accepted December 12, 2014 employment injury. Therefore,
it is unclear how Dr. Lax formulated his opinion that appellant compensated for her left shoulder,
following the accepted December 12, 2014 employment injury. The Board has held that a medical
opinion that lacks medical rationale is of limited probative value. 15 Moreover, in this letter,
Dr. Lax opined that the “same work duties, which caused the left shoulder injury then contributed
to the injury in the right shoulder.” He did not further explain in this report what activities
appellant engaged in that caused her right shoulder conditions. His opinion was, therefore, not
based on a complete factual background.16 The Board also finds that as Dr. Lax attempted to relate
appellant’s diagnosed right shoulder conditions to performance of her employment duties, and
conversely attempted to opine that her right shoulder condition was a consequence of her
December 12, 2014 left shoulder injury, his opinion was internally consistent. The Board has held
that medical reports are of limited probative value if they are internally inconsistent.17
In his March 20, 2018 report, Dr. Lax opined that, within a reasonable degree of medical
certainty, appellant’s work as a rural postal delivery worker with many years of exposure to heavy
lifting (40-pound buckets of mail) in small spaces (her delivery car), repetitive movements
(upwards of 500 stops for mail), and also a few specific events, including lifting heavy buckets of
mail in December 2014 and turning in her car to grab a package, contributed significantly to the
development of both bilateral chronic shoulder pain and rotator cuff tears.
As Dr. Lax did not provide the necessary medical rationale to establish that appellant’s
right shoulder conditions were a consequence of the accepted left shoulder injury of December 12,
2014, his reports were insufficient to overcome the weight accorded to Dr Scott or to create a
conflict in the medical opinion evidence. The Board thus finds that appellant has not met her
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(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 that the
acceptance of her claim should be expanded to include the additional conditions as a consequence
of the accepted December 12, 2014 employment injury.

15

J.P., Docket No. 19-0129 (issued April 26, 2019).

16

Y.H., Docket No. 19-0835 (issued October 4, 2019); see F.C., Docket No. 19-0594 (issued August 13, 2019).

17

S.H., Docket No. 19-0631 (issued September 5, 2019); L.L., Docket No. 18-0861 (issued April 5, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the October 5, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate 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.P., daughter of L.P., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF INDIAN AFFAIRS, Oracle, AZ, Employer
__________________________________________

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

Docket No. 14-136
Issued: August 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 24, 2013 appellant filed a timely appeal from August 6 and September 9,
2013 merit decisions 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 the case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $12,979.54 for the period January 14, 2012 through May 4, 2013 because she reached
23 years of age on January 13, 2012; and (2) whether OWCP properly determined whether
appellant was at fault in creating the overpayment.
On appeal appellant asserts that she is disabled and not responsible regarding the
overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 24, 1992 appellant’s father, the employee, was electrocuted in the course of
his federal employment. On March 22, 1993 his widow, appellant’s mother, elected to receive
FECA benefits. OWCP awarded augmented benefits on April 8, 1993 for the widow and her
minor child, appellant, who was born on January 13, 1989.2
In correspondence dated September 25, 2007, OWCP informed the widow that appellant
could continue to receive compensation after her eighteenth birthday, but only if she was
unmarried and either incapable of self-support or was a full-time student. The widow continued
to receive the augmented benefits for her and appellant until September 30, 2007 when appellant
began receiving a 15 percent share by separate check. The widow received a 45 percent share.
At that time appellant was 18 years of age and a full-time college student. The record supports
that she continued to attend college through January 2011.
On October 2, 2012 OWCP sent a Form CA-12, Claim for Continuance of
Compensation, to appellant. On October 15, 2012 it received the completed form, signed by
appellant on October 10, 2012. Appellant indicated that she was not capable of self-support
because she was disabled.
By letter dated May 8, 2013, OWCP informed appellant that her benefits had expired
because she turned 23 years of age on January 13, 2012.
On June 18, 2013 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $12,979.54 for the period January 14, 2012 to
May 4, 2013 because she continued to receive dependent benefits after her 23rd birthday that had
occurred on January 31, 2012. Appellant was found without fault. The June 18, 2013
preliminary determination stated that she was not at fault because she could not have been aware
or reasonably have been expected to know that OWCP had paid compensation incorrectly.
OWCP advised appellant of the steps to be taken if she disagreed with the preliminary
determination and provided her an overpayment action request form and overpayment
questionnaire.
The overpayment action request was completed by appellant’s mother, the widow, on
July 14, 2013. The widow stated that appellant, her daughter, was totally disabled and lived on
full disability. She inquired whether statements from appellant’s physicians were needed. The
widow concluded that there was no possible way appellant could repay the overpayment and
requested a decision on the record. No further information was submitted by appellant or her
mother.
On August 6, 2013 OWCP finalized the overpayment finding and stated that it had
determined that the preliminary finding that appellant was at fault was correct. It noted that the
2

The widow remarried on June 15, 1995. The marriage was annulled on October 4, 1995. By decision dated
December 22, 1997, the Board affirmed a July 27, 1995 OWCP decision that found that OWCP did not have to pay
the widow attorney’s fees as the record contained no application for legal services; that she should seek
reimbursement for her medical expenses with her insurance carrier; and that her survivor’s benefits could resume as
of the date of the June 1995 marriage, which had been annulled. Docket No. 96-372 (issued December 22, 1997).
She again remarried on May 23, 2008.

2

overpayment questionnaire had not been provided and that appellant herself had not responded to
the preliminary determination. Appellant was instructed to forward a check in the amount of
$12,979.54 to OWCP. On September 9, 2013 OWCP issued a second overpayment decision in
which it indicated that appellant was without fault and that the overpayment would not be
waived.3
LEGAL PRECEDENT
Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”4
Section 8133 of FECA provides that compensation in case of death from an injury
sustained in the performance of duty is payable to a child until the child has reached 18 years of
age, but shall continue if he or she is a student as defined by section 8101(17) at the time he or
she reaches 18 years of age for so long as he or she continues to be such student or until he or she
marries.5 The term student is defined in section 8101(17) as an individual under 23 years of age
who has not completed four years of education beyond high school and who is regularly
pursuing a full-time course of study.6
OWCP procedures provide that, when claims are made by or for children over 18 who are
physically or mentally incapable of self-support, the claims examiner must investigate the extent
and expected duration of the illness involved.7
ANALYSIS
The Board finds this case is not in posture for decision regarding whether an
overpayment of compensation was created. The record supports that appellant, who was born on
January 13, 1989, received survivor benefits from the death of her father on August 24, 1992,
through May 4, 2013. She turned 23 years of age on January 13, 2012, and OWCP found that an
overpayment of compensation was created for the period January 14, 2012 through May 4, 2013.
On October 2, 2012 OWCP forwarded a Form CA-12, Claim for Continuance of
Compensation, to appellant. Appellant returned the claim form on October 15, 2012 and
indicated that she was not capable of self-support because she was disabled.

3

The September 9, 2013 decision did not indicate that the August 6, 2013 decision was vacated or amended.

4

5 U.S.C. § 8129.

5

Id. at § 8133; see Grady Lewis (Vanessa Lewis), 55 ECAB 306 (2004).

6

Id. at § 8101(17).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Death Claims, Chapter 2.700.8.c. (July 2000).

3

As noted above, when claims are made by or for children over 18 years of age who are
physically or mentally incapable of self-support, the claims examiner must investigate the extent
and expected duration of the illness involved.8 There is no evidence that OWCP followed these
procedures in this case, such as informing appellant of the type evidence needed to support her
disability claim. Rather, it determined that an overpayment of compensation had been created.
The Board will set aside the August 6, 2013 decision and remand the case to OWCP to
follow its procedures regarding appellant’s claim for continued survivor benefit compensation
due to disability. Following this and such further development as deemed necessary, OWCP
should render a de novo overpayment decision.
Based on the Board’s finding regarding issue 1, issue 2 is rendered moot.
CONCLUSION
The Board finds this case is not in posture for decision regarding whether an
overpayment of compensation was created.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 9 and August 6, 2013 are set aside and the case is
remanded to OWCP for proceedings consistent with this opinion of the Board.9
Issued: August 13, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

Id.

9

Richard J. Daschbach, Chief Judge, who participated in the preparation of the opinion, was no longer a member
of the Board after May 16, 2014.

4


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

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

Docket No. 10-297
Issued: August 17, 2010

Case Submitted on the Record

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

JURISDICTION
On November 13, 2009 appellant filed a timely appeal of a September 25, 2009 merit
decision the Office of Workers’ Compensation Programs, which denied his request for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
hearing loss in the performance of duty.
FACTUAL HISTORY
On March 17, 2009 appellant, then a 69-year-old high voltage electrician, filed a claim
for compensation alleging that he developed hearing loss due to his federal employment. He
became aware of his hearing loss and realized that it was causally related to his employment in
February 10, 2005. Appellant did not stop work.

By letter dated April 10, 2009, the Office advised appellant of the type of evidence
needed to establish his claim. It also requested that the employing establishment address the
sources of his noise exposure, decibel and frequency level, period of exposure and hearing
protection provided.
Appellant submitted a statement and noted that from August 1958 to March 1989 he
worked for Copperweld Steel Company as a chipper grinder, final inspector and motor inspector
(maintenance electrician) and was exposed to hazardous noise from chipping hammers, overhead
cranes, sirens, steel bars, rolling of skids, electric air furnaces, transformers, motors, air
compressors, for one to seven hours per day and was provided with hearing protection. He noted
that, from May 1991 to April 1992, he worked for Edderer Cranes as an electrician and was
exposed to hazardous noise from large fabricating machines and riveting machines for two to six
hours per day. Appellant noted that, from April 1989 to June 1991, he worked as an electrician
at the employing establishment and was exposed to hazardous noise from machine shop lathes,
milling machines, forging hammers, electric arc furnaces, air compressors and various machines
noises at pier side on ships, for two to six hours per day and was provided with hearing
protection. He noted that since May 1992 he worked as a high voltage electrician and was
exposed to hazardous noise from overhead cranes, sirens, air compressors, electric arc furnaces,
forge hammers, generators and quitting time whistles for 15 minutes to 4 hours per day and was
provided with hearing protection.
The Office received employing establishment medical records and audiograms from
March 10, 1989 to January 29, 2009. In an employing establishment certificate of medical
examination dated March 10, 1989, the examining physician’s assistant noted counseling
appellant on the employer’s hearing conservation program and advised that he had prior civilian
employment with the steel mill. On March 14, 1989 an employing establishment audiologist
indicated that appellant’s entry audiogram of March 10, 1989 revealed high-frequency hearing
loss that might be noise related. Similarly, on February 28, 2005, an audiologist diagnosed mild
to severe progressive sensorineural hearing loss and noted that he worked in the steel mills for
30 years before the employing establishment and reported being exposed to noise. The
audiologist indicated that appellant’s preemployment audiogram in 1989 revealed moderate to
severe high-frequency sensorineural hearing loss. The employing establishment provided noise
exposure data, dated on April 24, 2009, which noted that, for the period of April 1989 to
March 1992, he had eight-hour time weighted average noise exposure which was greater than
84 decibels for at least 30 days per year. Also submitted were records from an employing
establishment hearing loss surveillance program from January 14, 1994 to January 31, 2006.
By letter dated July 9, 2009, the Office referred appellant to Dr. Gregory K. Chan, a
Board-certified otolaryngologist, for otologic examination and audiological evaluation. It
provided Dr. Chan with a statement of accepted facts, available exposure information and copies
of all medical reports and audiograms.
Dr. Chan performed an otologic evaluation of appellant on August 3, 2009 and
audiometric testing was conducted on the physician’s behalf on the same date. Testing at the
frequency levels of 500, 1,000, 2,000 and 3,000 revealed the following: right ear 25, 25, 55 and
80 decibels; left ear 25, 30, 50 and 65 decibels. In a report dated August 3, 2009, Dr. Chan
diagnosed bilateral high-frequency sensorineural hearing loss and noted that it was more

2

probable than not that appellant did not have any hearing loss as a result of working at the
employing establishment as an electrician. He noted that physical examination of the canals and
eardrums revealed normal tympanic membranes bilaterally. Dr. Chan noted that, based on an
audiogram done on March 10, 1989, the reference audiogram for the year appellant was hired, he
already had high-frequency sensorineural hearing loss. He advised that appellant worked for
nearly 20 years and the hearing loss had not significantly progressed. Dr. Chan opined that the
worsening hearing levels since the 1989 audiogram could be attributed to age-related hearing
loss on a more probable than not basis. Appellant reported using hearing protection when it was
posted and feasible and should not have had any hearing loss as a result of noise exposure due to
his employment at the employing establishment. Dr. Chan opined that appellant’s industrial
noise exposure at the employing establishment was not sufficient enough to cause his hearing
loss compared to his baseline level of hearing in 1989; therefore, he did not have hearing loss as
a result of his employment.
By a decision dated September 25, 2009, the Office denied appellant’s claim on the
grounds that the medical evidence did not support that his hearing loss was causally related to
workplace noise exposure.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. 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.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
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 claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a 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

1

Gary J. Watling, 52 ECAB 357 (2001).

3

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.2
ANALYSIS
In the instant case, it is not disputed that appellant was exposed to noise from 1989 to the
present in the course of his federal employment. However, the medical evidence is insufficient
to support that he has hearing loss causally related to his workplace noise exposure. Appellant
did not submit any medical report from a physician addressing how specific work duties or noise
exposure at work may have caused or aggravated his hearing loss. Submitted were employing
establishment audiograms March 10, 1989 to January 29, 2009. Employing establishment
records from March 10 and 14, 1989, indicated that appellant had high-frequency hearing loss
when he began his federal employment. There are no employing establishment medical records
from a physician supporting that he has a hearing loss attributable to his federal employment.
On July 9, 2009 the Office referred appellant to Dr. Chan. In report dated August 3,
2009, Dr. Chan determined that appellant’s sensorineural hearing loss was not due to his
employment. He diagnosed mild sensorineural hearing loss of the left ear at 3,000 hertz (Hz)
and mild sensorineural hearing loss of the right ear at 3,000 Hz through 6,000 Hz. Dr. Chan
diagnosed bilateral high-frequency sensorineural hearing loss and noted that more probable than
not basis appellant did not have any hearing loss as a result of working at the employing
establishment as an electrician. He based his opinion on an audiogram done on March 10, 1989,
the reference audiogram for the year appellant was hired, which revealed that he already had
high-frequency sensorineural hearing loss. Dr. Chan advised that appellant worked for nearly
20 years and the hearing loss had not significantly progressed. He opined that the worsening
hearing levels since the 1989 audiogram were more probably than not attributed to his
age-related hearing loss. Dr. Chan noted that appellant reported using hearing protection when it
was available and should not have had any hearing loss as a result of noise exposure due to his
employment at the employing establishment. He opined that appellant’s industrial noise
exposure at the employing establishment was not sufficient enough to cause his hearing loss
compared to his baseline level of hearing in 1989. Based on this, Dr. Chan concluded that
appellant did not have hearing loss as a result of his employment.
The Board finds that the medical evidence does not support that appellant has any hearing
loss causally related to workplace noise exposure. Dr. Chan provided a thorough examination
and a reasoned medical report explaining how the hearing loss was not due to the employment.
The Board finds that his report represents the weight of the evidence. Appellant has not
submitted any medical opinion supporting that any hearing loss is employment related. Thus, he
did not meet his burden of proof to establish that his claimed hearing loss is causally related to
employment factors.
On appeal, appellant asserts that his hearing loss increased since beginning work at the
employing establishment. As noted above, he has not submitted any medical opinion supporting
that any hearing loss is employment related and Dr. Chan’s report indicated that the hearing loss
2

Solomon Polen, 51 ECAB 341 (2000).

4

is not employment related. Neither the fact that a claimant’s condition became apparent during a
period of employment nor the belief that the condition was caused, precipitated or aggravated by
the employment is sufficient to establish causal relationship.3
CONCLUSION
The Board finds that appellant has not established that his hearing loss was caused or
aggravated by his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 25, 2009 is affirmed.
Issued: August 17, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007).

5