United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
B.E., Appellant
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Decatur, GA, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 09-2340
Issued: August 23, 2010

Case submitted on the record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On September 23, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated September 4, 2009 which denied her claim for a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of
disability beginning February 6, 2004 causally related to her October 5, 1997 employment injury.
FACTUAL HISTORY
On October 14, 1997 appellant then a 49-year-old medical technician filed a traumatic
injury claim alleging that she sustained an injury on October 5, 1997. She alleged that she had
recurring ganglion cysts aggravated by stress and tension caused by typing and drawing blood.
The employing establishment indicated that appellant did not stop work. The claim was treated
as an uncontroverted claim with no time lost.
The Office received notes dated October 9, 1997 from a nurse practitioner, who advised
that appellant was having pain in the ulnar aspect of the right wrist with pain into the lower arm,

and some pain in the fifth finger, which bothered her for three months. The nurse practitioner
noted that appellant had the same symptoms in the late 1980’s. She related that appellant
believed her condition was aggravated by her work. The nurse practitioner diagnosed pain in the
right wrist and lower arm.
An October 14, 1997 note from Dr. Jacquelyn A. Fletcher, a resident specializing in
physiatry, noted no evidence of carpal tunnel syndrome. In an October 14, 1997 report,
Dr. Lester S. Duplechan, a Board-certified physiatrist, noted that appellant reported right dorsal
wrist pain and paresthesias along the dorsal aspect of the forearm and arm with excessive typing
and wrist extension. He diagnosed pain in the right dorsal wrist, ganglion cyst, mild tendinitis
and right upper bilateral carpal tunnel syndrome.
In an October 16, 1997 progress report, Bridget M. Brown, an occupational therapist,
noted that appellant was referred to occupational therapy with a diagnosis of left dorsal wrist
ganglion cyst and extensor digitorum and tendinitis. She advised that appellant would benefit
from stretching exercises and provided with information to that effect. Ms. Brown noted that
appellant would follow through with her stretching exercises and she would assess the need for a
splint if pain persists. On April 1, 2008 she noted that appellant came in requesting a splint.
However, Ms. Brown advised that, due to the length of time since her last evaluation, a new
consultation was needed.
The Office received an August 3, 1998 report, from Dr. Lamar L. Fleming, a Boardcertified orthopedic surgeon, who related that appellant reported pain and numbness in her feet
and toes and that she had been diagnosed with fibromyalgia. Dr. Fleming diagnosed bilateral
bunions, the right worse than the left. He also noted that appellant had a nondermatomal
distribution of pain and subjective complaints.
The case remained dormant until appellant submitted a January 23, 2007 statement that
sought to reopen her claim. Appellant indicated that she experienced pain radiating up her arm
and shoulder that had worsened. She stated that her primary care physician had referred her to a
neurologist.
On September 26, 2007 appellant filed a notice of recurrence of a medical condition,
relating the pain and numbness in her neck, hand and arm to the October 5, 1997 work injury.
She also listed other dates of injury, which included April 17, 1998, February 10, July 7 and
October 8, 2004. Appellant did not stop work.
By letter dated March 7, 2008, the Office informed appellant of the evidence needed to
support her claim and requested that she submit such evidence within 30 days. In a separate
letter, it informed her that no compensation was previously paid under the 1997 claim.
On March 24, 2008 the Office received a February 20, 2004 notice of recurrence filed by
appellant for disability beginning February 6, 2004. Appellant described pain to her arms, legs
and back. She alleged that repetitive motion, excessive computer use and drawing blood caused
her condition. Appellant noted that she was unable to bend or walk for long periods. On
March 24, 2008 the Office received an undated statement from appellant indicating that, on
April 17, 1998, she returned to the health clinic for wrist and hand pain related to her job duties
which included phlebotomy, data entry and drawing blood.

2

In an April 11, 2008 decision, the Office denied appellant’s claim for a recurrence of
disability on February 6, 2004. It noted that the 1997 claim was originally received as a simple
uncontroverted claim with no lost time from work. The Office noted that the merits of the claim
were never formally considered and that the 1997 record did not provide sufficient medical
documentation to establish a permanent condition.
Appellant filed an appeal with the Board.1 On January 13, 2009 the Board issued an
order remanding the case as the record was incomplete. The case was remanded for
reconstruction and proper assemblage of the case record and an appropriate merit decision issued
on appellant’s claim in order to preserve her right to appeal to the Board.
By decision dated March 20, 2009, the Office denied appellant’s claim for a recurrence of
disability on February 6, 2004 as the evidence did not establish that it was due to an accepted
work injury. It noted that the case was originally treated as a simple uncontroverted claim with
no lost time from work and the medical evidence was insufficient to show that she had a
permanent condition. The Office found that the additional evidence received was insufficient to
establish the alleged condition.
On April 2, 2009 appellant requested a hearing, which was scheduled for July 23, 2009.
In a July 23, 2009 memorandum to the file, the Office hearing representative noted that appellant
arrived for the hearing but discovered that the employing establishment representative was
present. Appellant refused to proceed and left. The hearing representative conducted a review of
the written record.
By decision dated September 4, 2009, the hearing representative affirmed the March 20,
2009 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 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.4
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) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
1

Docket No. 08-1607 (issued January 13, 2009).

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

3

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 the claimant. The medical
evidence required to establish causal relationship, generally, is 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 nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.5
ANALYSIS
The record reflects that, on October 5, 1997, the Office received a claim as a simple
uncontroverted case with no time loss from work. Appellant filed a notice of recurrence of
disability on February 20, 2004 and September 6, 2007 alleging a recurrence of her medical
condition commencing February 6, 2004. By letter dated March 7, 2008, the Office advised her
of the evidence needed to establish her claim. It denied appellant’s claim for a recurrence
without establishing whether she established an injury in the performance of duty in 1997.
The Board notes that the issue is not whether she sustained a recurrence of disability but
rather whether she sustained an injury in the performance of duty. The Office never formally
adjudicated the claim and no particular condition was ever accepted. While appellant filed a
traumatic injury claim, it appears that she is alleging her condition arose over a period of time, as
opposed to a single workday or shift.6 The Board will treat this as a claim as one for an
occupational disease.7
Appellant alleged that her bilateral wrist, hand, neck and shoulder conditions were caused
by the duties of her position as a medical technician, which included typing and drawing blood.
The Board notes that there is no evidence refuting that the claimed employment factor, typing
and drawing blood at work, occurred. Consequently, appellant has established that she typed and
drew blood at work. The medical evidence is insufficient to establish that her neck or upper
extremity conditions were caused or aggravated by typing and drawing blood at work or by other
factors of her federal employment.

5

Id.

6

The Office’s regulations define a traumatic injury as a condition of the body caused by a specific event or
incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by
external force, including stress or strain, which is identifiable as to time and place of occurrence and member or
function of the body affected. 20 C.F.R. § 10.5(ee). An occupational disease or illness is a condition produced by
the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
7

See Federal FECA Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.4(b)
(January 2003) (regarding Office’s obligation to obtain the appropriate claim form when an incorrect form is
submitted).

4

In an October 14, 1997 report, Dr. Duplechan noted that appellant reported right dorsal
wrist pain and paresthesias along the dorsal aspect of the forearm and arm with excessive typing
and wrist extension. He diagnosed pain in the right dorsal wrist, ganglion cyst, mild tendinitis
and right upper bilateral carpal tunnel syndrome. While Dr. Duplechan noted that appellant
related that she had pain with excessive typing and wrist extension, the Board notes that he did
not offer any opinion addressing whether factors of appellant’s employment had caused or
aggravated her diagnosed condition.8 Consequently, the Board finds that this evidence is
insufficient to establish appellant’s claim.
In an October 14, 1997 note, Dr. Fletcher found no evidence of carpal tunnel syndrome.
This report does not support that appellant has an employment-related condition and is
insufficient to establish her claim. The August 3, 1998 report from Dr. Fleming noted that
appellant had complaints of pain and numbness in her feet and toes and had been diagnosed with
fibromyalgia. Dr. Fleming diagnosed bilateral bunions and nondermatomal pain but did not
address whether the claimed conditions were employment related. This diminishes the probative
value of the report.
Appellant provided reports from an occupational therapist but an occupational therapist is
not a “physician” within the meaning of the Act.9 The record also contains nurse’s notes. Health
care providers such as nurses, acupuncturists, physicians’ assistants and physical therapists are
not physicians under the Act. Their opinions on causal relationship do not constitute probative
medical evidence and have no weight or probative value.10
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.11
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship. Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.12
As there is no probative, rationalized medical evidence addressing and explaining why
appellant’s hand, neck and shoulder conditions were caused and/or aggravated by factors of her
employment, appellant has not met her burden of proof in establishing that she sustained a
medical condition in the performance of duty causally related to factors of her employment.13

8

Linda I. Sprague, 48 ECAB 386 (1997) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship).
9

See 5 U.S.C. § 8101(2); Jerre R. Rinehart, 45 ECAB 518 (1994).

10

Jane A. White, 34 ECAB 515, 518 (1983).

11

See Joe T. Williams, 44 ECAB 518, 521 (1993).

12

Id.

13

The Board notes that, subsequent to the Office’s September 4, 2009 decision, appellant submitted additional
evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c);
James C. Campbell, 5 ECAB 35 (1952).

5

On appeal, appellant generally expressed disagreement with the Office’s decision also
that the employing establishment failed to disclose information. As noted, the Board previously
remanded the case for reconstruction of the record and the record on appeal supports that the
Office followed the Board’s instructions. Appellant indicated that she gave the hearing
representative permission to contact her physician, but it is appellant’s burden of proof to submit
medical evidence to the record to establish her claim.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 4, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: August 23, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W.,
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. SECRET SERVICE, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-1027
Issued: November 18, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On April 13, 2020 appellant filed a timely appeal from a November 1, 2019 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 diagnosed medical
condition causally related to the accepted July 24, 2018 employment incident.
FACTUAL HISTORY
On March 26, 2019 appellant, then a 41-year-old telecommunications specialist, filed a
traumatic injury claim (Form CA-1) alleging that on July 24, 2018 he experienced stiffness in his
1

5 U.S.C. § 8101 et seq.

neck when the government-owned vehicle in which he was riding was rear-ended by another
vehicle while in the performance of duty. He stopped work on July 25, 2018 and returned to work
on July 30, 2018.
In a September 30, 2019 development letter, OWCP informed appellant that it had received
no evidence in support of his claim. It advised him of the deficiencies of his claim and instructed
him as to the factual and medical evidence necessary to establish his claim. OWCP provided
appellant a questionnaire for completion and requested that he provide a narrative medical report
from his physician, which contained a detailed description of findings and diagnoses, explaining
how the reported incident caused or aggravated his medical condition. It afforded him 30 days to
respond. No evidence was received.
By decision dated November 1, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had failed to submit medical evidence containing a diagnosis in connection with
his injury. It concluded, therefore, that the requirements had not been met to establish an injury
as defined under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,3 that an injury was sustained in the performance of duty, as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6

2

Id.

3

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6
K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q).

2

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted July 24, 2018 employment incident.
In its September 30, 2019 development letter, OWCP noted that it had not received any
medical evidence which established a diagnosed medical condition resulting from the July 24,
2018 employment incident. It provided appellant 30 days to submit the requested medical
evidence. It is appellant’s burden of proof to obtain and submit medical documentation containing
a firm diagnosis causally related to the accepted employment incident. As appellant has not
submitted rationalized medical evidence establishing a diagnosed medical condition causally
related to the accepted July 24, 2018 employment incident, he has not met his burden of proof to
establish his claim.7
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted July 24, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board
7

See M.O., Docket No. 19-1398 (issued August 13, 2020); J.T., Docket No. 18-1755 (issued April 4, 2019).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, TWINLAKE POST
OFFICE, Federal Way, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Howard L. Graham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0480
Issued: August 29, 2016

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 January 15, 2016 appellant, through counsel, filed a timely appeal of a December 15,
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 to consider the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s medical
benefits and wage-loss compensation for her accepted injury, effective February 20, 2015.
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.

On appeal counsel contends that the statement of accepted facts (SOAF) was deficient,
that OWCP usurped the function of its medical adviser, and that the second opinion physician
submitted an unrationalized report. He also contends that OWCP did not address any of his
arguments in its very brief decision.
FACTUAL HISTORY
On March 21, 2012 appellant, then a 46-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on March 14, 2012, after collecting and preparing incoming mail, she
felt pain in her neck and upper back, accompanied by numbness in her left arm and hand. On
June 7, 2012 OWCP accepted appellant’s claim for temporary aggravation of cervical
radiculopathy with disc protrusion. Appellant received intermittent wage-loss compensation
benefits on the supplemental rolls from June 2, 2012 through January 23, 2015.
In a November 5, 2014 report, Dr. Christopher R. Howe, appellant’s treating Boardcertified orthopedic surgeon, noted that appellant had an employment-related injury dating back
to March 2012. He listed an impression of cervical spondylosis with possible radiculopathy and
possible proximal muscle weakness from myasthenia gravis. Dr. Howe noted that appellant
remained symptomatic. He related that he had placed her on a very low dose of Prednisone for
one week and referred her for a repeat steroid injection as these treatments had been helpful.
On November 19, 2014 OWCP referred appellant to Dr. Louis Kretschmer, a Boardcertified orthopedic surgeon, for a second opinion, to determine appellant’s current medical
status. In a December 10, 2014 report, Dr. Kretschmer reviewed appellant’s medical history, and
related findings from her magnetic resonance imaging (MRI) and computerized tomography
(CT) scans. He listed appellant’s diagnoses as: (1) administratively accepted temporary
aggravation preexisting cervical spine degenerative disease, multiple levels; (2) myasthenia
gravis; (3) diabetes; and (4) osteoarthritis of the knees, an unrelated condition. Dr. Kretschmer
opined that none of the diagnosed conditions were medically connected to the March 14, 2012
employment injury, but that it appeared that aggravation of the degenerative disease of the
cervical spine was administratively accepted. He explained that appellant’s continuing
conditions of global axial neck pain and marked weakness of both upper extremities were due to
preexisting degenerative disease of the cervical spine and myasthenia gravis. Dr. Kretschmer
noted they were not related to her employment injury of March 14, 2012, and thus the temporary
aggravation would have ceased. He related that appellant’s cervical condition was fixed and
stable. Dr. Kretschmer also noted that appellant had axial pain, but no radicular component.
Therefore, he was not aware of any injections or operative intervention that would meet
appellant’s expectations for relief of her axial neck pain. Dr. Kretschmer concluded that no work
restrictions were necessary for appellant’s accepted condition, and that no further treatment was
recommended for the accepted employment condition, but that continued treatment for unrelated
myasthenia gravis would be appropriate.
In a December 22, 2014 report, Dr. Howe listed his clinical impression as cervical
spondylosis with primary axial neck pain. He noted that a new MRI scan of the cervical spine
acquired on December 19, 2014 revealed facet arthropathy more on the right than the left at C4C5, with moderate central stenosis at C5-C6 and mild-to-moderate bilateral forminal narrowing.
Dr. Howe noted that he was concerned that surgery may not provide the relief that she was

2

seeking. He concluded that, if appellant did not proceed with surgery, she was rapidly
approaching maximum medical improvement (MMI).
On January 13, 2015 OWCP proposed terminating appellant’s wage-loss compensation
and medical benefits as the weight of the medical evidence established that appellant no longer
had any residuals or continuing disability from work stemming from her accepted injury.
In a January 26, 2015 report, Dr. Howe noted that appellant had been having significant
neck pain since March 2012. He noted that appellant’s most recent MRI scan of December 19,
2014 was quite similar to the one obtained on February 15, 2012, prior to her work injury.
Dr. Howe listed a clinical impression of cervical spondylosis with minimal radicular symptoms.
He believed that appellant could return to work, but with restrictions. Dr. Howe noted that it
would be difficult for appellant to perform overhead activities or repetitive lifting of greater than
15 pounds and noted that appellant’s limitations may be due to her preexisting condition as well
as her myasthenia gravis. He found that appellant was at MMI, and noted that he did not
recommend surgery.
By letter dated February 9, 2015, appellant, through counsel, noted her objection to the
proposed termination. Counsel initially contended that Dr. Kretschmer was an inappropriate
physician as he was an orthopedist and that because cervical radiculopathy is a nerve condition
and not a bone condition, appellant should have her claim reviewed by a neurologist or certified
pain specialist. He then argued that the most recent MRI scan reviewed by Dr. Kretschmer
showed continued annular bulges at C5-6 and C6-7, which was the same condition that was the
basis for the approval of the claim in 2012. Counsel also contended that the second opinion
physician provided no rationale to explain why the same condition that was the basis of the claim
still existed, but was not work related. He noted that Dr. Kretschmer did not have the
December 22, 2014 report which summarized the December 19, 2014 MRI scan of appellant,
and explained that the December 19, 2014 MRI scan continued to reveal facet arthropathy worse
on the right than the left at C4-5, and moderate central stenosis at C5-C6. Counsel also
contended that OWCP asked a leading question when they asked Dr. Kretschmer whether the
temporary aggravation of the cervical condition ceased. He questioned the weight given
Dr. Kretschmer’s report, arguing that this report lacked rationale and contained contradictions.
Finally, counsel contended that the SOAF failed to list appellant’s work limitations. He argued
that, if OWCP determined that Dr. Kretschmer’s report was rationalized, then the case should be
referred for an impartial medical examination to resolve the conflict between Dr. Howe and
Dr. Kretschmer with regard to whether appellant had continuing residuals due to the accepted
condition.
By decision dated February 18, 2015, OWCP terminated appellant’s medical and wageloss compensation benefits effective February 20, 2015 as the weight of the medical evidence
established that appellant no longer had any continuing disability or residuals related to the
accepted employment-related condition.
On March 11, 2015 appellant requested an oral hearing before an OWCP hearing
representative. At the hearing held on October 5, 2015 she testified and described the
circumstances of her March 14, 2012 employment injury. Appellant noted that she worked part
time following the injury, but that the last day she worked was October 17, 2014.

3

Counsel submitted a letter setting forth his previous arguments presented, both at the
hearing and in his prior letter, including his arguments that the SOAF did not address appellant’s
physical limitations, that the second opinion physician did not review the subsequent medical
evidence, that OWCP usurped the role of the medical adviser when it rejected Dr. Howe’s
reports, and that the second opinion was not rationalized.
By decision dated December 15, 2015, OWCP’s hearing representative affirmed the
February 18, 2015 decision. He found that appellant’s treating physician, Dr. Howe, had
reported on January 28, 2015 that appellant’s December 19, 2014 MRI scan showed similar
findings to the February 15, 2012 MRI scan, which was obtained prior to appellant’s accepted
employment injury. The hearing representative concluded that Dr. Kretschmer’s medical
opinion was well rationalized and established that appellant no longer had residuals of the
accepted condition.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
the disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.5
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as the report of the second opinion physician,
Dr. Kretschmer, was sufficient to meet OWCP’s burden of proof.
OWCP based its decision to terminate appellant’s benefits on a December 10, 2014 report
by Dr. Kretschmer, the second opinion physician, who conducted a physical examination and
reviewed appellant’s medical history. Dr. Kretschmer concluded that any temporary aggravation
of appellant’s cervical condition had ceased. He noted that appellant’s cervical condition was
fixed and stable, and that no further treatment was recommended for this condition.
The Board finds that Dr. Kretschmer’s second opinion report does not conflict with the
opinion of appellant’s treating physician, Dr. Howe. Dr. Howe noted that appellant had been
having significant neck pain since March 2012, and continued to note, in his January 26, 2015
report, a clinical impression of cervical spondylosis with minimal radicular symptoms. In his
3

Barry Neutuch, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995); see also M.B., Docket No. 12728 (issued September 26, 2012).
4

Mary A. Lowe, 52 ECAB 223, 224 (2001).

5

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

4

January 26, 2015 report, however, he also explained that a comparison of appellant’s
February 15, 2012 MRI scan, which was taken prior to her employment injury, showed
substantially similar findings to her most recent MRI scan of December 19, 2014. Dr. Howe also
noted that appellant’s physical limitations may be due to her preexisting condition, as well as her
myasthenia gravis.
Dr. Kretschmer opined that the accepted temporary aggravation of appellant’s cervical
condition had ceased. He noted that her conditions of continuing global axial neck pain and
marked weakness of both upper extremities were due to the preexisting degenerative disc disease
of the cervical spine and myasthenia gravis. Dr. Kretschmer noted that they were not related to
her employment injury of March 14, 2012, so the accepted condition temporary aggravation
would have ceased. In assessing medical evidence, the weight of medical evidence is determined
by its reliability, its probative value, and its convincing quality. The factors that comprise the
evaluation of medical opinion evidence include the opportunity for and thoroughness of physical
examination, the accuracy or completeness of the physician’s knowledge of the facts and medical
history, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.6 As Dr. Kretschmer explained his review of the medical evidence and the
findings of his physical examination, his opinion provides sufficient detail to constitute a
rationalized medical opinion as to why the temporary aggravation of appellant’s cervical
radiculopathy with disc protrusion had resolved. Therefore, his opinion is sufficient to meet
OWCP’s burden of proof to terminate appellant’s benefits.
On appeal counsel contends that the SOAF was deficient in that it did not contain
appellant’s physical limitations. His argument is without merit. The SOAF is a concise
summary of the relevant facts that will allow a physician to resolve a particular medical issue.7
The essential elements of a SOAF include the date of injury, claimant’s date of birth, job held on
date of injury, name of the employing establishment, employment history, mechanism of injury,
and condition claimed or accepted.8 However, not all information contained in a case files bears
on the issues to be resolved in connection with the SOAF. Some information is irrelevant, while
other material is inappropriate, prejudicial, or better discussed elsewhere. Evidence to be
excluded from the SOAF includes medical opinions, unless used in detailing the medical history
of a claim. The SOAF should also not be used to outline factual issues to be resolved, or to
discuss legal issues.9 Accordingly, appellant’s physical limitations, as set forth by the medical
evidence, were properly excluded from the SOAF.
Counsel also challenges the weight given to the opinion of the second opinion physician,
Dr. Kretschmer.
He contends that OWCP asked a leading question when it asked
Dr. Kretschmer to determine whether the temporary aggravation of the cervical condition had
6

Nicolette R. Kelstrom, 54 ECAB 570 (2003); Anna M. Delaney, 53 ECAB 384 (2002); see also G.I., Docket No.
14-1857 (issued September 9, 2015).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.1
(September 2009).
8

Id. at Chapter 2.809.5.

9

Id. at Chapter 2.809.7.

5

ceased. This question does not suggest or imply an answer and, in fact, would provide greater
support for appellant’s position if Dr. Kretschmer determined that appellant continued to suffer
from an aggravation of her preexisting condition.10
Counsel contended that Dr. Kretschmer was an orthopedist and not a certified pain
specialist or a neurologist, and thus was an inappropriate physician to conduct the second
opinion. The Board notes that the medical evidence submitted by appellant to support her claim
was presented by Dr. Howe, who is also a Board-certified orthopedic surgeon, and that referral to
Dr. Kretschmer was appropriate.
Counsel contended that Dr. Kretschmer did not review medical evidence submitted after
his report, including the January 26, 2015 report by Dr. Howe which reviewed a
December 19, 2014 MRI scan. He also contends that the December 19, 2014 MRI scan showed
the same condition for which the claim was accepted. Counsel’s arguments are without merit.
Appellant’s claim was accepted for a temporary aggravation of the preexisting cervical
radiculopathy and disc protrusion. Dr. Howe reviewed the December 19, 2014 MRI scan in his
January 26, 2015 report. However, he noted that this MRI scan was quite similar to the findings
seen on the preinjury MRI scan of February 15, 2012. Therefore, the evidence indicates that the
MRI scan showed the preexisting condition and not any temporary aggravation.
Counsel also contends that OWCP usurped the role of the medical adviser when it
rejected Dr. Howe’s reports. However, OWCP has a duty to evaluate the medical evidence to
determine whether appellant continued to experience disability or residuals from her
employment-related condition, so this argument is also without merit.11
The evidence of record substantiates that OWCP met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s medical
benefits and wage-loss compensation for her accepted injury effective February 20, 2015.

10

See T.B., Docket No. 15-0001 (issued July 1, 2015).

11

See J.R., Docket No. 13-2028 (issued September 24, 2014).

6

ORDER
IT IS HEREBY ORDERED THAT the December 15, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 29, 2016
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spring, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0342
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On January 4, 2021 appellant filed a timely appeal from a November 10, 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective April 26, 2020, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); (2) whether it properly
determined that appellant received an overpayment of compensation in the amount of $3,193.12
for the period April 26 through May 23, 2020, for which she was without fault, because she
continued to receive wage-loss compensation following the termination of her compensation

1

5 U.S.C. § 8101 et seq.

pursuant to 5 U.S.C. § 8106(c)(2); and (3) whether OWCP properly denied waiver of recovery of
the overpayment.
FACTUAL HISTORY
On June 4, 2008 appellant then a 38-year-old window clerk, filed a traumatic injury claim
(Form CA-1) alleging that on May 23, 2008 she bruised her right leg, head, neck, and tailbone
when she tripped on a stool and fell while in the performance of duty. OWCP accepted her claim
for contusions of multiple sites, not elsewhere classified and subsequently expanded the
acceptance of her claim to include sprain of the back, thoracic region, contusion of buttock,
displacement of lumbar intervertebral disc without myelopathy, intervertebral disc disorder with
myelopathy, cervical region, and displacement of cervical intervertebral disc without myelopathy.
Appellant stopped work on May 24, 2008 and worked intermittently thereafter until stopping work
completely on May 3, 2017. OWCP paid appellant wage-loss compensation on the supplemental
rolls and then on the periodic rolls.
OWCP referred appellant, along with the case record and a statement of accepted facts
(SOAF), for a second opinion examination to determine her disability status. In an August 3, 2017
report, Dr. Albert Sanders, a Board-certified orthopedic surgeon, opined that appellant continued
to have residuals of the work-related injury of May 23, 2008. He noted that appellant was status
post cervical fusion at C5-6 and lumbar fusion at L5-S1, but continued to have chronic pain in the
neck and low back. Dr. Sanders advised that appellant exhausted all treatment modalities and her
prognosis was poor. He opined that appellant reached maximum medical improvement (MMI) on
September 17, 2015. Dr. Sanders indicated that appellant underwent a functional capacity
evaluation (FCE) on August 11, 2017 that found that she was capable of performing sedentary
duty, but not the usual duties of a window clerk. He reviewed the job description for a modified
passport scheduler that did not require lifting/pulling/pushing over 10 pounds and occasional
standing and walking and opined that appellant could perform these duties without restrictions. In
a work capacity evaluation (Form OWCP-5c) dated August 11, 2017, Dr. Sanders noted diagnoses
and indicated that appellant reached MMI and could return to work without restrictions.
By letter dated October 25, 2017, the employing establishment offered appellant a position
as a modified clerk. The duties included: sitting to perform customer complaint cases for two
hours a day; sitting to process parcel returns on a laptop for two hours a day; processing passports
while sitting for two hours a day; and assisting customers at the window while standing for two
hours a day. The physical requirements included: lifting, pushing, and pulling no more than 10
pounds; standing and walking for no more than two hours each; reaching above the shoulder for
no more than two hours a day; and no twisting.
On November 3, 2017 the employing establishment indicated that appellant did not show
up for work and did not respond to the job offer. On February 21, 2018 the employing
establishment confirmed that the job remained available.
By notice dated February 23, 2018, OWCP advised appellant that it had determined that
she had refused or failed to report to the offered position as a modified clerk. It informed her that
it had reviewed the offered position and found it was suitable and in accordance with the medical
restrictions provided by Dr. Sanders’ August 3, 2017 report. Pursuant to 5 U.S.C. § 8106(c)(2),

2

OWCP afforded appellant 30 days to accept the position or to provide adequate reasons for refusal.
It informed her that an employee who refuses an offer of suitable work without cause is not entitled
to wage-loss or schedule award compensation.
In a letter dated March 8, 2018, appellant rejected the job offer, asserting that the job
exceeded her restrictions and that she was in severe incapacitating pain.
Appellant submitted a March 9, 2018 report from Dr. Kenneth Lee, a Board-certified
orthopedist, who noted a history of injury and diagnosed cervicalgia, low back pain, postlaminectomy syndrome, radiculopathy in the lumbar and cervical region, obesity, intervertebral
disc displacement of the lumbar region, and spinal stenosis of the lumbar region with neurogenic
claudication. Dr. Lee reviewed a post-lumbar computerized tomography myelogram (CTM) from
October 10, 2017, which revealed most prominently L3-4 four-millimeter disc bulge with
moderate central canal stenosis with effacement about traversing nerve roots producing severe
central canal and lateral recess stenosis. He indicated that appellant remained symptomatic with
low back pain and bilateral lower extremity pain and recommended surgical intervention lumbar
decompression and discectomy at L3-4. Dr. Lee further indicated that appellant could not return
to work even in a sedentary capacity due to severe central canal stenosis associated with
radiculopathy affecting her lower extremities.
On March 22, 2018 OWCP reviewed the evidence of record and determined that the
modified clerk position was not suitable. It determined that Dr. Lee’s March 9, 2018 report
revealed that appellant’s condition may have materially worsened and she may require surgery
and, therefore, could not work.
OWCP requested an addendum report from Dr. Sanders addressing Dr. Lee’s report and
providing an opinion on whether the proposed treatment was due to the accepted conditions. On
April 2, 2018 Dr. Sanders noted that he could not comment as he had not received a copy of the
cervical CTM or Dr. Lee’s report and his evaluation was performed eight months ago and
appellant’s current condition was not clear.
On May 4, 2018 OWCP referred appellant to Dr. Sanders for a supplemental second
opinion. In a May 24, 2018 report, Dr. Sanders opined that appellant continued to have residuals
of the work-related injury. He found that the most recent CTM of the lumbar spine dated
October 9, 2017 revealed prominent spinal stenosis at L3-4, and opined that these residuals were
due to the work-related injury. Dr. Sanders disagreed with Dr. Lee’s opinion that appellant should
remain off work and indicated that the prior FCE showed that appellant was capable of performing
sedentary work with restrictions. In a Form OWCP-5c dated June 1, 2018, he noted that appellant
could return to sedentary work with permanent restrictions of walking, standing, and reaching
above shoulders no more than two hours a day, pushing, pulling, and lifting up to 10 pounds for
no more than two hours, and no twisting, bending, squatting, kneeling, climbing or stooping.
On December 31, 2018 OWCP determined that there was a conflict of medical opinion
between Dr. Lee, appellant’s treating physician who opined that appellant was totally disabled
from work, and Dr. Sanders, the second opinion physician, who opined that appellant was capable
of working in a full-time limited-duty capacity.

3

OWCP referred appellant to Dr. Gwenevere Williams, a Board-certified physiatrist, for an
impartial medical evaluation. In her January 31, 2019 report, Dr. Williams noted reviewing the
SOAF, medical history, and the medical record, including appellant’s prior medical diagnosis and
procedures. Findings on examination revealed: a well-healed spinal incision; flattening of cervical
and lumbar lordosis; restricted range of motion in the lumbar and cervical spine; tenderness to
bilateral cervical paraspinals, splenius capitus, trapezii, infraspinatus, and rhomboid; moderate
tenderness to the right acetabulum and upper gluteals; and vague sensory dysesthesia to light touch
and pinprick to the left L5 and S1 dermatomes. Dr. Williams reported that appellant was obese
and concomitant of significant deconditioned state unrelated to the May 23, 2008 work injury. She
noted that the work-related injury was affected by the preexisting medical condition of obesity that
placed excessive load on the cervical and lumbar spine causing additional symptomology.
Dr. Williams related that appellant provided inconsistent effort during her February 1, 2019 FCE.
However, based upon results documented by the FCE, Dr. Williams opined that appellant was
capable of performing modified sedentary work on a full-time basis. In a Form OWCP-5,
Dr. Williams opined that appellant was capable of walking and standing up to two hours per day,
reaching above her shoulder up to two hours per day, pushing, pulling no more than 20 pounds up
to two hours per day, lifting no more than 10 pounds up to two hours per day, and no twisting,
bending or stooping.
Appellant was treated in follow up by Dr. Andrew McKay, a Board-certified
anesthesiologist, on February 26 and June 18, 2019 for neck and low back pain. Dr. McKay noted
findings of diminished range of motion of the cervical and lumbar areas of the spine, positive
Spurling’s test, tenderness to palpation at C3-4 to C5-6 levels, weak upper and lower extremity
motor strength, and positive straight leg testing bilaterally. He diagnosed failed cervical and
lumbar spine surgery syndrome, status post lumbar and anterior cervical fusions, cervicalgia,
lumbago, chronic pain syndrome, and morbid obesity.
On July 19, 2019 the employing establishment offered appellant a modif ied distribution
window and markup clerk position. The salary for the position was the same as appellant’s current
PS 06/0 salary of $60,737.00. The job description listed that duties would be performed up to
eight hours a day and included assisting customers in the lobby that could be performed while
sitting up to eight hours. The physical requirements included: lifting up to 10 pounds; pushing
and pulling up to 20 pounds intermittently up to two hours each; walking, standing, and reaching
above the shoulder intermittently up to two hours each; and no twisting, bending, or stooping. The
available shift was from 9:00 a.m. to 6:30 p.m., Monday through Friday, with Sundays and
Wednesdays off.
In a letter dated August 19, 2019, OWCP advised appellant that the position offered was
suitable in accordance with the medical limitations provided by Dr. Williams on
February 18, 2019. It notified her that, if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to 5 U.S.C § 8106(c)(2), her wage-loss compensation and
entitlement to a schedule award would be terminated. OWCP afforded appellant 30 day s to
respond.
On September 17, 2019 appellant responded to the August 19, 2019 letter, asserting that
she was medically unable to accept the offered position as the duties of the assignment were
inconsistent with her medical restrictions and disabilities.
4

Appellant submitted an October 8, 2019 report from Dr. McKay, who noted findings on
examination of tenderness of the cervical spinous process at C3-4 and C5-6, positive Spurling’s
test on the right, and diminished motor strength of the upper extremities diminished on the left.
With regard to the lumbar spine he noted paraspinal muscle tenderness bilaterally, tenderness to
palpation of L3-4 and L5-S1, and weak motor strength of the lower extremities. He diagnosed
failed cervical and lumbar spine surgery; status post lumbar fusion and anterior cervical fusion;
cervicalgia, lumbago, chronic pain syndrome; and obesity. Dr. McKay noted that appellant was
totally disabled.
On October 9, 2019 appellant was treated by Dr. Shahid Syed, a Board-certified internist,
for low back and neck pain. Findings on examination revealed an obese female; tenderness to
palpation of the cervical spine; paraspinal neck and trapezius; and decreased range of motion of
the paralumbar, parathoracic, and buttocks. Dr. Syed noted a problem list of chronic back pain,
cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy syndrome, sprain of
the ligaments of the cervical spine, muscle fascia and tendon at the neck, ligaments of the thoracic
spine, and muscle spasm of the back. He noted that appellant was off work for three months.
In a December 20, 2019 letter, OWCP found that the reasons appellant provided for
refusing the offered position were invalid. It afforded her 15 additional days to accept and report
to this position. OWCP noted that if appellant did not accept the position within 15 days of the
date of the letter, her wage-loss compensation and entitlement to a schedule award would be
terminated pursuant to 5 U.S.C. § 8106(c)(2). No additional response was received.
By decision dated April 13, 2020, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award, effective April 26, 2020, finding that she had refused an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
In a compensation termination worksheet dated June 3, 2020, OWCP indicated that
appellant’s compensation was terminated effective April 26, 2020; however, she continued to be
paid on the periodic rolls from April 26 through May 23, 2020. The overpayment amount was
$3,193.12. 2
On June 8, 2020 OWCP issued a preliminary overpayment determination that an
overpayment of compensation had been created in the amount of $3,193.12 as appellant continued
to receive payment on the periodic rolls through May 23, 2020, after her FECA wage-loss
compensation had been terminated on April 26, 2020. It determined that she was without fault in
the creation of the overpayment. OWCP requested that appellant submit a completed overpayment
recovery questionnaire (Form OWCP-20) to determine a reasonable payment method and advised
her that she could request waiver of recovery of the overpayment. It further requested that she
provide supporting financial documentation, including copies of income tax returns, bank account
statements, bills, and canceled checks, pay slips, and any other records, which support income and
expenses. Additionally, OWCP provided an overpayment action request form and further notified

2

The record reveals that payment was issued on May 23, 2020 via electronic funds transfer for the period April 26
through May 23, 2020.

5

appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
On July 6, 2020 appellant completed a Form OWCP-20 and requested that OWCP render
a decision based on the written evidence. She disagreed with the fact and amount of the
overpayment, and requested waiver of recovery of the overpayment.
On a Form OWCP-20 completed on July 6, 2020 appellant reported that her total monthly
income included $123.00 from the Social Security Administration (SSA) and miscellaneous sales
of $180.00, resulting in total monthly income of $303.00. She reported expenses totaling
$2,365.00. Appellant indicated monthly expenses of $665.00 for rent, $600.00 for food, $100.00
for clothing, $800.00 for utilities, and $200.00 for other expenses. She reported: no cash on hand;
a checking account balance of $467.32; a savings account balance of zero; and no stocks, personal
property or other assets. Appellant indicated that she had been experiencing more expenses than
normal as her car had broken down and her home had flooded due to a broken washing machine.
She indicated that she provided a written explanation as to why she could not accept the offered
position on September 17, 2019. Appellant further asserted that she was entitled to compensation
benefits because she could no longer work due to the accepted employment injuries. With regard
to whether there was a change in circumstances affecting her monthly payment, she indicated that
there was not.
On October 1, 2020 appellant attended a telephonic prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. She subsequently submitted financial
documentation including a monthly benefits statement from SSA noting a payment of $1,783.00.
Appellant noted: expenses of car insurance of $132.00 a month; natural gas of $20.00; water bill
of $69.49 a month; mortgage of $662.00 a month; telephone service for two lines at $71.83 and
$77.83 a month; and electric service of $131.45 a month. She provided documentation from the
Thrift Savings Plan (TSP) reflecting a balance of $68,251.01, savings account balance of $119.68,
and checking account balance of $16.39.
By decision dated November 10, 2020, OWCP’s hearing representative finalized the
preliminary overpayment determination, finding that appellant had received an overpayment of
compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020, because
she continued to receive wage-loss compensation following the termination of her compensation.
OWCP further found that she was without fault in the creation of the overpayment, but denied
waiver of recovery because the evidence of record was insufficient to establish that recovery of
the overpayment would defeat the purpose of FECA or be against equity and good conscience. It
required recovery by payment of $100.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits. 3 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
3

See K.S., Docket No. 19-1650 (issued April 28, 2020); J.R., Docket No. 19-0206 (issued August 14, 2019); R.P.,
Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

6

work is offered to, procured by, or secured for the employee is not entitled to compensation. 4 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
he or she was allowed a reasonable period to accept or reject the position or submit evidence to
provide reasons why the position is not suitable. 5 Section 8106(c) will be narrowly construed as
it serves as a penalty provision, which may bar an employee’s entitlement to compensation based
on a refusal to accept a suitable offer of employment. 6
In determining what constitutes suitable work for a particular disabled employee, OWCP
considers the employee’s current physical limitations, whether the work was available within the
employee’s demonstrated commuting area, the employee’s qualifications to perform such work,
and other relevant factors. 7 The issue of whether an employee has the physical ability to perform
a modified position offered by the employing establishment is primarily a medical question that
must be resolved by medical evidence. All impairments, whether work related or not, must be
considered in assessing the suitability of an offered position. 8
Section 8123(a) of FECA provides in pertinent part that, if there is disagreement between
the physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.9 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case. 10 When there exist opposing medical reports of
virtually equal weight and rationale and the case is referred to an impartial medical examiner (IME)
for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

4

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

5

See R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

6

S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(c) (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
8

L.L., Docket No. 17-1247 (issued April 12, 2018); J.J., Docket No. 17-0410 (issued June 20, 2017); Gayle Harris,
52 ECAB 319 (2001).
9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

11

K.S., Docket No. 19-0082 (issued July 29, 2019).

7

OWCP properly found a conflict in the medical opinion evidence between Drs. Lee and
Sanders and referred appellant to Dr. Williams for an impartial medical examination. 12
In a January 31, 2019 report, Dr. Williams noted that appellant was obese and concomitant
of significant deconditioned state unrelated to the May 23, 2008 work injury. She noted that the
work-related injury was affected by the preexisting medical condition of obesity that placed
excessive load on the cervical and lumbar spine causing additional symptomology. Based on the
February 1, 2019 FCE, Dr. Williams opined that appellant was capable of performing sedentary
work on a full-time basis, sitting up to eight hours per day. She determined that appellant was
capable of walking and standing up to two hours per day; reaching above her shoulder up to two
hours per day; pushing and pulling no more than 20 pounds up to two hours per day ; lifting no
more than 10 pounds up to two hours per day; and no twisting, bending or stooping. The Board
finds that Dr. Williams’ opinion is entitled to the special weight of the medical evidence accorded
an IME because she based this opinion on a proper factual background, a review of the medical
record, and physical examination, and she provided a well-rationalized opinion that appellant was
capable of a sedentary level of modified-duty work.
On July 19, 2019 the employing establishment offered appellant a modified position of
distribution window and markup clerk. The job description listed that duties would be performed
up to eight hours a day and included assisting customers in the lobby that could be performed while
sitting up to eight hours. The physical requirements included: lifting up to 10 pounds, pushing
and pulling 20 pounds intermittently up to two hours each, walking, standing, and reaching above
the shoulder intermittently up to two hours each, no twisting, bending, or stooping. The Board
finds that the physical requirements of the offered position of distribution window and markup
clerk conformed to appellant’s work restrictions as provided by Dr. Williams. The special weight
of the medical evidence of record establishes that appellant was no longer totally disabled from
work and had the physical capacity to perform the duties listed in the July 19, 2019 job offer.
Thus, OWCP properly relied on Dr. Williams’ opinion in finding the distribution window and
markup clerk position suitable.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP advised
appellant on August 19, 2019 that it found the job offer of modified distribution window and
markup clerk to be suitable and afforded her an opportunity to provide reasons for refusing the
position within 30 days. Following appellant’s reply, it advised her, in a December 20, 2019 letter,
that her reasons for refusing were deficient and properly allowed 15 addition al days to accept the
offered position. The Board finds that OWCP followed the established procedures prior to the
termination of her wage-loss compensation pursuant to 5 U.S.C. § 8106(c)(2).
Subsequent to the August 19, 2019 letter from OWCP, appellant submitted an October 8,
2019 report from Dr. McKay who diagnosed failed cervical and lumbar spine surgery, status post
lumbar fusion and anterior cervical fusion, cervicalgia, lumbago, chronic pain syndrome and
morbid obesity. Dr. McKay noted that appellant was totally disabled. Similarly, on October 9,
2019 appellant was treated by Dr. Syed for low back and neck pain. He noted a problem list of
chronic back pain, cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy
12

Id.

8

syndrome, sprain of the ligaments of the cervical spine, muscle fascia and tendon at the neck,
ligaments of the thoracic spine, and muscle spasm of the back and advised that appellant was off
work for three months. However, Drs. McKay and Syed’s reports are insufficient to establish that
the position offered appellant was unsuitable as the physicians did not provide a reasoned opinion
explaining how or why appellant’s diagnosed conditions prevented her from performing the
modified job duties at the time her compensation was terminated.13
The Board, therefore, finds that OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and entitlement to a schedule award based on h er refusal to accept the
offered position.
LEGAL PRECEDENT -- ISSUE 2
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 duty. 14 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.”15
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.16 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances. 17 OWCP’s regulations provide in pertinent part that compensation for wage
loss due to disability is available only for any periods during which the employee’s work-related
medical condition prevents her from earning the wages earned before the work -related injury.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020 because
she continued to receive wage-loss compensation following the termination of her compensation
payments.

13

E.H., Docket No. 19-1352 (issued December 18, 2019); E.C., Docket No. 17-1645 (issued June 11, 2018).

14

Supra note 1 at § 8102(a).

15

Id. at § 8129(a).

16

Id. at § 8102.

17

Id. at § 8116(a).

18

20 C.F.R. § 10.500.

9

OWCP terminated appellant’s wage-loss compensation and entitlement to a schedule
award, effective April 26, 2020, finding that she had refused an offer of suitable work pursuant to
5 U.S.C. § 8106(c)(2). However, appellant continued to receive wage-loss compensation on the
supplemental rolls through May 23, 2020. Since OWCP had terminated her wage-loss
compensation benefits, effective April 26, 2020, appellant was not entitled to receive
compensation benefits after that date. As she received $3,193.12 in FECA wage-loss
compensation for the period April 26 through May 23, 2020, the Board finds that an overpayment
of compensation in that amount was created.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.19
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.20 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.21 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.22 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.23
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that

19

5 U.S.C. § 8129.

20

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. 20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Assets must not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse
or dependent plus $1,200.00 for each additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Final Overpayment Determinations, Chapter 6.400(2), (3) (September 2020).
21

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
22

See id. at Chapter 6.400.4(a)(2) (September 2020).

23

Id. at Chapter 6.400.4(b)(3).

10

such payments would be made, gives up a valuable right or changes his or her position for the
worse.24
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 25
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 26 It considered
appellant’s financial information, as reported in appellant’s Form OWCP-20, to determine if
recovery of the overpayment would defeat the purpose of FECA or if recovery would be against
equity and good conscience.
The Board finds that OWCP properly determined that appellant did not require
substantially all of her income to meet ordinary and necessary living expenses. Based upon the
information provided on the Form OWCP-20, and evidence received after the hearing, appellant
reported income totaling $1,963.00 and expenses of $662.00 for a mortgage, $600.00 for food,
$100.00 for clothing, $76.00 for water, $20.00 for natural gas, $78.00 for telephone, 27 $131.00 for
electric, and $132.00 for car insurance. Her expenses totaled $1,799.00. Appellant noted a
checking account balance of $16.39, savings account balance of $119.68, and TSP balance of
$68,251.01. As her monthly income exceeds her monthly expenses by $164.00, appellant does
not need substantially all of her monthly income to meet current and ordinary living expenses.
The Board further finds that appellant has not established that recovery of the overpayment
would be against equity and good conscience because it has not been shown, for the reasons noted
above, that she would experience severe financial hardship in attempting to repay the debt, or that
a valuable right had been relinquished, or that a position had been changed for the worse in reliance
on the payment, which created the overpayment. 28 Therefore, OWCP properly denied waiver of
recovery of the overpayment.

24

20 C.F.R. § 10.437(a)(b).

25

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

26

5 U.S.C. § 8129.

27

One telephone line is permitted as an ordinary and necessary expense.
6.400(4)(b)(2)(a)) (September 2020).
28

Supra note 20 at Chapter

L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

11

Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP has not
abused its discretion by denying waiver of recovery of the overpayment.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2). The Board further finds that OWCP properly
determined that appellant received an overpayment of compensation in the amount of $ 3,193.12,
for which she was without fault, because she continued to receive wage-loss compensation
following the termination of her compensation for the period April 26 through May 23, 2020. The
Board also finds that OWCP properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION WHIDBEY ISLAND,
Oak Harbor, WA, Employer
__________________________________________
Appearances:
John R. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

)
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)
)
)

Docket Nos. 11-1348 and
11-1362
Issued: September 13, 2011

Case Submitted on the Record

ORDER GRANTING REQUEST FOR ORAL ARGUMENT
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On May 9 and 16, 2011 appellant, through his attorney, filed for review of the March 24,
2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) which
denied his request for reconsideration under 5 U.S.C. § 8128(a). The appeal was docketed as
Nos. 11-1348 and 11-1362, respectively. Appellant submitted a timely request for oral
argument, explaining the need to address the evidence of record before the Board.1 Appellant’s
attorney contends that, in denying appellant’s request for reconsideration, OWCP applied an
improper standard in determining that the new medical evidence submitted by appellant, which
included a May 29, 2009 medical report from Dr. Robert M. Rakita, a Board-certified internist,
and an undated report from Dr. Steve H. Kirtland, an attending Board-certified internist, were
equivocal in nature and, thus, insufficient to warrant the reopening of his claim for a merit
review. He further contends that OWCP incorrectly stated that the July 27, 2009 report of
Dr. Paul A. Zaveruha, a surgeon, was previously reviewed by the Board in its prior decision.
Counsel argues that the Board cannot review medical evidence that was not before OWCP at the

1

20 C.F.R. § 501.5(b) provides that a request for oral argument must be submitted in writing no later than 60 days
after the filing of the appeal and specify the issue(s) to be argued and provide a statement supporting the need for
oral argument.

time it issued the final decision in the case and that the rationale for this rule should be clearly set
forth by the Board.
The Board notes that this is appellant’s second appeal. In Docket No. 09-1193, issued
May 6, 2010, the Board found that appellant did not sustain a fungus condition in the
performance of duty as he failed to submit sufficient rationalized medical evidence establishing
that his condition was causally related to his accepted employment-related exposure to bird
droppings.
The Board has duly considered the matter and finds that appellant’s request for oral
argument should be granted. Pursuant to 20 C.F.R. § 501.5(a), oral argument may be held in the
discretion of the Board.2 In the present appeal, appellant’s request was timely filed and a need
for oral argument was advanced. The Board has jurisdiction over the merits of appellant’s claim.
The Board, in its discretion, grants oral argument.
IT IS HEREBY ORDERED THAT appellant’s request for oral argument in Docket
Nos. 11-1348 and 11-1362 be granted.
Issued: September 13, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees' Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

2

20 C.F.R. § 501.5(a).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
FORCES COMMAND, SHIPYARDS FLEET
HRO NORFOLK NAVAL SHIPYARD,
Portsmouth, VA, Employer
__________________________________________

)
)
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)

Appearances:
David G. Jennings, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1565
Issued: March 15, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 26, 2016 appellant, through counsel, filed a timely appeal from a June 2, 2016
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.

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.

ISSUE
The issue is whether appellant sustained more than 3.75 percent binaural hearing loss for
which he received a schedule award.
FACTUAL HISTORY
On October 27, 2015 appellant, then a 57-year-old insulator leader, filed an occupational
disease claim (Form CA-2) alleging that he developed binaural hearing loss as a result of high
levels of employment-related noise exposure. He was employed as an insulator leader from
1981 to 2014 where he was exposed to noise six to eight hours per day from various pneumatic
tools, chipping, grinding, needle guns, deck crawlers, steam driven machinery, relief valves,
pumps, fans, and blowers.
OWCP referred appellant, together with a statement of accepted facts, to Dr. Jeffrey
Powell, a Board-certified otolaryngologist, for a second opinion evaluation on February 9, 2016.
An audiogram was completed that same date which revealed the following decibel (dB) losses at
500, 1,000, 2,000, and 3,000 hertz (Hz): 20, 20, 25, and 45 for the right ear and 30, 15, 20, and
45 for the left ear. Dr. Powell reported that appellant had problems localizing sound and
understanding words in a group conversation, especially with background noise. He first noticed
his hearing loss 10 years ago which had significantly worsened over the years. Appellant further
complained of tinnitus in both ears that was high pitched and constant which disturbed him both
while he was awake and also when trying to sleep.
Dr. Powell diagnosed binaural noise-induced high frequency neurosensory hearing loss
and binaural tinnitus as a result of his occupational noise exposure in his federal employment.
He noted that appellant’s audiogram at the beginning of his employment in 1985 revealed normal
thresholds and his most recent audiograms showed a significant threshold shift, revealing a
severe high frequency noise-induced neurosensory hearing loss. Dr. Powell further stated that
appellant’s workplace noise exposure was sufficient as to intensity and duration to have caused
the loss in question and the hearing loss was well in excess of what would normally be
predicated on the basis of presbycusis. He indicated that appellant had reached maximum
medical improvement (MMI) and recommended hearing aids.
Applying the standard provided by the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment3 (A.M.A., Guides) to the
February 9, 2016 audiometric data, Dr. Powell calculated that appellant sustained 10.63 percent
monaural hearing impairment in the right ear (5.63 percent4 + 5 percent for tinnitus) and 8.75
percent monaural hearing impairment in the left ear (3.75 percent + 5 percent for tinnitus). He
calculated a binaural hearing impairment of 9.06 percent.

3

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

4

The Board notes that Dr. Powell noted 25 dB at 500 Hz when calculating the right ear monaural hearing loss.
The February 9, 2016 audiogram reveals that the dB level at 500 Hz was actually 20 dB.

2

By decision dated February 25, 2016, OWCP accepted appellant’s claim for binaural
hearing loss and binaural tinnitus. It further noted that the record established that he would
benefit from hearing aids.
On August 5, 2016 OWCP referred the case file to Dr. Jeffrey M. Israel, an OWCP
district medical adviser (DMA) and Board-certified otolaryngologist, to determine the extent of
appellant’s hearing loss and permanent impairment due to his employment-related noise
exposure.
On April 8, 2016 Dr. Israel reviewed Dr. Powell’s February 9, 2016 otologic examination
report and agreed that appellant’s binaural high frequency sensorineural hearing loss was due to
occupational noise exposure. He applied the audiometric data to OWCP’s standard for
evaluating hearing loss under the sixth edition of the A.M.A., Guides and determined that
appellant sustained 3.75 percent monaural hearing impairment in the right ear, 3.75 percent
monaural hearing impairment in the left ear, and a binaural hearing impairment of 3.75 percent.5
Dr. Israel averaged appellant’s right ear hearing levels of 20, 20, 25, and 45 dB at 500,
1,000, 2,000, and 3,000 Hz, which totaled 27.5. After subtracting out a 25 dB fence, he
multiplied the remaining 2.5 balance by 1.5 to calculate a 3.75 percent right ear monaural
hearing loss.6 Dr. Israel then averaged appellant’s left ear hearing levels of 30, 15, 20, and 45 dB
at 500, 1,000, 2,000, and 3,000 Hz, which totaled 27.5. After subtracting out a 25 dB fence, he
multiplied the remaining 2.5 balance by 1.5 to calculate a 3.75 percent left ear monaural hearing
loss. Dr. Israel then calculated 3.75 percent binaural hearing loss by multiplying the right ear
loss of 3.75 percent by 5, adding the 3.75 percent left ear loss, and dividing this sum by 6. He
added no percentage for tinnitus. Dr. Israel acknowledged that appellant had tinnitus and that
Dr. Powell added five percent tinnitus loss to each ear. He deferred to Dr. Powell’s tinnitus
rating stating that there was no Tinnitus Handicap Inventory available for him to review.
Dr. Israel concluded that hearing aids were authorized and noted the date of MMI as
February 9, 2016.
On April 27, 2016 appellant filed a claim for a schedule award (Form CA-7).
By decision dated June 2, 2016, OWCP granted appellant a schedule award for 3.75
percent binaural hearing loss. The date of MMI was determined to be February 9, 2016. The
award covered a period of eight weeks from February 9, 2016 to April 4, 2016.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
5

Supra note 3 at 249.

6

Dr. Israel noted that his values were different from Dr. Powell’s as the physician misread the right ear dB level
at 500 Hz.
7

Supra note 2.

3

specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.8
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.9 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.10
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.11 The A.M.A., Guides state that if tinnitus
interferes with [Activities of Daily Living (ADLs)], including sleep, reading (and other tasks
requiring concentration), enjoyment of quiet recreation, and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.13 OWCP may follow the advice
of its medical adviser or consultant where he or she has properly utilized the A.M.A., Guides.14

8

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

9

See A.M.A., Guides 250.

10

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).
11

See A.M.A., Guides 249.

12

Id. See also Robert E. Cullison, 55 ECAB 570 (2004); R.H., Docket No. 10-2139 (issued July 13, 2011).

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013); Hildred I. Lloyd, 42 ECAB 944 (1991).
14

See Ronald J. Pavlik, 33 ECAB 1596 (1982).

4

ANALYSIS
OWCP accepted appellant’s claim for binaural noise-induced hearing loss and binaural
tinnitus. The issue is whether appellant has more than a 3.75 percent binaural hearing loss for
which he received a schedule award. The Board finds that the evidence of record establishes that
appellant has a 8.75 percent binaural hearing loss.15
OWCP referred appellant, together with a statement of accepted facts, to Dr. Powell, a
Board-certified otolaryngologist, for a second opinion evaluation. An audiogram was completed
on February 9, 2016 which revealed the following dB losses at 500, 1,000, 2,000, and 3,000 Hz:
20, 20, 25, and 45 for the right ear and 30, 15, 20, and 45 for the left ear. Dr. Powell diagnosed
binaural noise-induced high frequency neurosensory hearing loss and binaural tinnitus as a result
of his federal occupational noise exposure.
The Board finds that Dr. Powell, the second opinion physician, properly evaluated
appellant’s left ear hearing loss. Using the February 9, 2016 audiogram, Dr. Powell averaged
appellant’s left ear hearing levels of 30, 15, 20, and 45 dB at 500, 1,000, 2,000, and 3,000 Hz,
which totaled 27.5. He then subtracted a 25-dB fence and multiplied the balance of 2.5 by 1.5 to
find 3.75 percent left ear monaural hearing loss.
With respect to appellant’s right ear hearing loss, Dr. Powell mistakenly calculated
appellant’s right ear monaural loss using 25 dB at 500 Hz rather than the 20 dB noted in the
audiometric test results. Nonetheless, he properly evaluated appellant’s right ear hearing levels
of 20, 20, 25, and 45 dB at 500, 1,000, 2,000, and 3,000 Hz to average 27.5. Subtracting a 25 dB
fence and multiplying the balance of 2.5 by 1.5 results in 3.75 percent left ear monaural hearing
loss.
Applying the February 9, 2016 audiometric data and using the sixth edition of the
A.M.A., Guides, Dr. Powell calculated that appellant sustained 3.75 percent monaural hearing
impairment in the right ear and 3.75 percent monaural hearing impairment in the left ear.16 He
calculated a binaural hearing impairment rating of 3.75 percent.
Dr. Powell further diagnosed tinnitus. He described appellant’s symptoms as trouble
localizing sound and understanding words in a conversation, especially with background noise.
Dr. Powell further noted that appellant was experiencing constant high pitch ringing which
disturbed him both while he was awake and also when trying to sleep.
OWCP then referred the medical evidence to Dr. Israel serving as OWCP’s DMA for a
rating of permanent impairment in accordance with the A.M.A., Guides. The DMA agreed that
appellant had a 3.75 percent binaural hearing loss under the sixth edition of the A.M.A., Guides
based on the results of the February 9, 2016 audiogram and Dr. Powell’s second opinion report.
Though Dr. Israel did not include five percent impairment for tinnitus, he noted that he was
deferring to Dr. Powell with regards to his tinnitus rating.
15

C.W., Docket No. 13-1168 (issued October 23, 2013).

16

Supra note 11.

5

The Board finds that Dr. Powell properly added another 5 percent for tinnitus as it
impacted appellant’s ability to perform activities of daily living, for a total left ear monaural
hearing loss of 8.75 percent. Accordingly, the Board will grant an additional five percent award
for tinnitus.17
Thus, the Board finds that appellant sustained 9 percent binaural hearing loss (rounded up
from 8.75).18 The Board further finds that OWCP properly determined that the date of MMI was
February 9, 2016, the date of Dr. Powell’s examination.19
CONCLUSION
The Board finds that appellant has established that he has nine percent permanent
binaural hearing loss.

17

R.A., Docket No. 15-138 (issued March 13, 2015).

18

The policy of OWCP is to round the calculated percentage of impairment to the nearest whole point. Results
should be rounded down for figures less than .5 and up for .5 and over. See FECA Procedure Manual, Part 3 Medical, Schedule Awards, Chapter 3.700.3(b) (January 2010); Carolyn E. Sellers, 50 ECAB 393, 394 (1999).
19

In assessing eligibility for a schedule award, the medical evidence must show that the impairment has reached a
permanent and fixed state, which is generally referred to as MMI. See Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5b(1) (February 2013). Assuming MMI
has been attained, the date of MMI is usually considered to be the date of the evaluation by the attending physician
that is accepted as definitive by OWCP. Schedule awards begin on the date of MMI, unless circumstances show that
a later date should be used. A retroactive determination of the date of MMI is not per se erroneous. When the
medical evidence establishes that the employee did in fact reach maximum improvement by such date, the
determination is proper. Id. at Chapter 2.808.7b.

6

ORDER
IT IS HEREBY ORDERED THAT the June 2, 2016 decision of the Office of Workers’
Compensation Programs is affirmed, as modified.
Issued: March 15, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7