United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTE, Sandstone, MN, Employer
__________________________________________

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

Docket No. 06-2009
Issued: March 15, 2007

Case Submitted on the Record

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

JURISDICTION
On August 21, 2006 appellant filed an appeal from a June 1, 2006 decision of the Office
of Workers’ Compensation Programs which found that his cardiac condition was not caused by
his employment injury. 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 his burden of proof to establish that his cardiac
condition is a consequence of his accepted herniated disc at L5-S1 and April 9, 2002 surgical
procedure.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated January 27, 2003, the
Board affirmed Office decisions dated January 22 and May 2, 2002 which denied appellant’s

request for reimbursement of travel expenses.1 The law and the facts of the previous Board
decision are incorporated herein by reference.2
The record reflects that, on April 9, 2002, appellant underwent surgical fusion at L4-5
and L5-S1 posteriorly. In an April 11, 2002 report, Dr. David G. Benditt, a cardiologist, noted
that after the surgery appellant was found to have atrial flutter and underwent cardioversion with
no complications. A hospital progress note dated April 12, 2002 advised that he did well after
cardioversion. He underwent a myocardial perfusion study on April 15, 2002. In a May 23,
2002 report, Dr. Benditt advised that appellant had no additional episodes of atrial flutter and
would be treated with medication for three months.
By letter dated July 1, 2005, appellant informed the Office that his atrial flutter condition
had returned and requested payment for medical treatment. He submitted a June 16, 2005 stress
electrocardiogram (EKG) report that demonstrated supraventricular tachycardia with secondary
dyspnea. By report dated June 27, 2005, Dr. Chuen Y. Tang, Board-certified in internal
medicine and cardiovascular disease, noted appellant’s history of atrial flutter in 2002 and that he
was asymptomatic until April 2005 when he began to have shortness of breath with exertion.
Dr. Tang reviewed the results of the June 16, 2005 stress test and advised that EKG testing the
day of his examination revealed atrial flutter and advised that this atypical atrial flutter occurred
during physical exertion. Appellant was started on medication and scheduled for external direct
cardioversion. He was to start taking propafenone three times a day, starting two days prior to
the scheduled procedure. In a treatment note dated August 3, 2005, Dr. Randall A. Bostrom,
Board-certified in family medicine, noted that appellant was in for an annual checkup. He
reported that appellant spent the year traveling in his motor home and had developed shortness of
breath over the prior two months. Dr. Bostrom diagnosed hyperlipidemia, hypertension and
dyspnea on exertion and recommended further testing.
On August 22, 2005 appellant was admitted to St. Luke’s Hospital in Duluth, Minnesota
through the emergency room. In an admission note, Dr. Stephen T. Bernard, a Board-certified
cardiologist, noted the 2002 episode of atrial flutter, recent episodes of shortness of breath,
treatment by Dr. Tang, and that appellant was scheduled for cardioversion. He reported a history
that, after taking four doses of propafenone, appellant became profoundly lightheaded and
developed bradycardia. Dr. Bernard was taken to an emergency room in Cloquet, Minnesota
where he was defibrillated and transported to the facility in Duluth. His impression

1

Docket No. 02-1628 (issued January 27, 2003).

2

The Office accepted that appellant, a former cook foreman, sustained an employment-related herniated disc at
L5-S1. Appellant retired from the employing establishment on December 3, 1998. On April 18, 2003 he filed a
schedule award claim and the Office began development.2 Appellant submitted an April 20, 2005 impairment rating
from Dr. Fozia A. Abrar, Board-certified in occupational medicine, that was reviewed by an Office medical adviser
on September 12, 2005. Dr. Bryan L. Lynn, Board-certified in orthopedic surgery, provided treatment notes dated
June 27 and 28, December 12, 2005 and May 8, 2006 in which he advised that he evaluated appellant for radiating
low back pain. Dr. Beth A. Baker, Board-certified in occupational medicine, provided an impairment rating dated
March 7, 2006. Appellant had previously received schedule awards for a 3 percent impairment of the right lower
extremity and an 11 percent impairment on the left.

2

was profound bradycardia, likely iatrogenic3 associated with appellant’s current medications and
exacerbated by dopamine; recent therapy with propafenone; and atrial flutter with significant
cardiac risk factors of obesity, hypertension, dyslipidemia and diabetes. A temporary pacemaker
was placed. In a consultation note dated August 23, 2005, Dr. Gene G. Karwoski, Boardcertified in internal medicine, diagnosed complete heart block, possibly related to Rythmol
(propafenone), paroxysmal atrial flutter, ventricular fibrillation for tachycardia and chronic back
pain controlled on Neurontin. While hospitalized appellant underwent cardiac catheterization,
EKG, echocardiogram and Holter monitor testing. He was discharged on August 26, 2005 with
diagnoses of profound bradycardia, likely iatrogenic, history of atrial flutter, history of
hypertension, obesity, dyslipidemia, diabetes, status post ventricular tachycardia associated with
current medications as well as possibly exacerbated by dopamine. Appellant was discharged
stable on a medication regimen and was to return for additional testing.
By letter dated August 24, 2005, the Office informed appellant that his cardiac condition
was not accepted as related to his lumbar disc herniation. In a September 1, 2005 note, Bryan
Austin, a certified nurse practitioner, reported appellant’s recent medical history, findings on
examination and medication update. On September 8, 2005 appellant underwent a myocardial
infusion study and cardiac stress test. In a report dated September 16, 2005, Dr. Jake R. Powell,
a Board-certified internist, noted appellant’s medical history including lumbar fusion surgery in
2000 and 2002 and his recent hospitalization. EKG demonstrated normal sinus rhythm without
ischemic changes. Dr. Powell diagnosed atrial flutter with recent hospitalization for bradycardia
and ventricular tachycardia, likely iatrogenic, hypertension, hyperlipidemia and chronic back
pain and recommended that appellant continue his current medications.
In a September 22, 2005 letter, appellant contended that his cardiac condition was a
consequence of the April 2002 back surgery and the episode of atrial flutter that he had at that
time. On October 5, 2005 the Office informed appellant of the medical evidence needed to
establish his claim that his current cardiac condition was a consequence of the April 2002
orthopedic surgery. By decision dated December 5, 2005, the Office denied appellant’s claim
for compensation on the grounds that the medical evidence did not establish that his cardiac
condition was caused or contributed to by his accepted back condition.
On December 27, 2005 appellant requested a hearing. In a September 20, 2005 report,
Dr. Mark R. Dagostino, a Board-certified internist, noted appellant’s medical history and
examination findings. He diagnosed paroxysmal atrial flutter, at least three episodes, with severe
bradycardia noted on Atenolol and propafenone combination, systemic hypertension,
dyslipidemia, endogenous obesity, a recent favorable Myoview scan and possible sleep apnea.
In a December 7, 2005 report, Dr. Benditt advised that he had treated appellant following an
episode of atrial flutter which occurred in the perioperative period in 2002. He noted that this

3

Iatrogenic is defined as “resulting from the activity of physicians.” Dorland’s Illustrated Medical Dictionary,
29 edition (2000).
th

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was the first time appellant was known to have an arrhythmia and that cardioversion was
successful. Dr. Benditt opined:
“Atrial flutter and atrial fibrillation may occur as a consequence of surgical
procedures. These occurrences may be due to electrolyte changes, catecholamine
effects (‘stress’), infection, or fluid volume changes. Inherent susceptibility may
be a factor as well.”
Dr. Benditt concluded that he had not played a role in appellant’s subsequent health care and
could not comment on what had happened since.
A telephone hearing was held on April 7, 2006. Appellant testified that he had no heart
problems until April 2002 and then no further symptoms until he developed shortness of breath
in April 2005 when he was in Mississippi. He returned to Minnesota for medical care and
described the events of August 2005. The hearing representative informed appellant of the
evidence needed to support his claim for a consequential injury. No medical evidence was
submitted. By decision dated June 1, 2006, the Office hearing representative affirmed the
December 5, 2005 decision.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause.4 Regarding the range of compensable consequences of an
employment-related injury, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of “direct and natural
results” and of the claimant’s own conduct as an independent intervening cause. The basic rule
is that a subsequent injury, whether an aggravation of the original injury or a new and distinct
injury, is compensable if it is the direct and natural result of a compensable primary injury.
Thus, once the work-connected character of any condition is established, the subsequent
progression of that condition remains compensable so long as the worsening is not shown to
have been produced by an independent nonindustrial cause.5
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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
4

Mary Poller, 55 ECAB 483 (2004).

5

A. Larson, The Law of Workers’ Compensation § 13.11.

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
ANALYSIS
The medical evidence in this case establishes that in April 2002 appellant developed
atrial flutter following authorized lumbar surgery. In April 2005, he developed dyspnea with
exertion, and in August 2005 he had an episode of profound bradycardia requiring
hospitalization. The Board, however, finds that the medical evidence does not establish that his
cardiac condition was a consequence of his accepted herniated disc at L5-S1 or the April 2002
surgery. The medical evidence of record does not relate appellant’s cardiac condition to his back
condition, the April 2002 surgery, or any factor of his federal employment.
Appellant, who retired in 1998, reported a history that while traveling in Mississippi in
April 2005 he developed shortness of breath and returned to Minnesota for medical treatment.
He was seen by Dr. Tang on June 27, 2005 who reported that EKG that day revealed atypical
atrial flutter that occurred during physical exertion and scheduled cardioversion. Dr. Tang
advised that appellant was to begin taking propafenone two days prior to the scheduled
procedure. On August 22, 2005 appellant had an episode of severe bradycardia that required
defibrillation and hospitalization. In the admission note, Dr. Bernard reported a history of an
episode of atrial flutter following surgery in 2002, appellant’s recent episodes of shortness of
breath, and that Dr. Tang had scheduled cardioversion. He advised that, after taking four doses
of propafenone, appellant became profoundly lightheaded and developed bradycardia which
required an emergency admission to a local hospital where he was defibrillated and then
transported to the Duluth facility. Dr. Bernard diagnosed profound bradycardia, likely
iatrogenic, associated with his current medications and exacerbated by dopamine, recent therapy
with propafenone and atrial flutter with significant cardiac risk factors of obesity, hypertension,
dyslipidemia and diabetes. By report dated August 20, 2005, Dr. Dagostino diagnosed
paroxysmal atrial flutter with severe bradycardia noted on Atenolol and propafenone
combination. In a September 16, 2005 treatment note, Dr. Powell diagnosed atrial flutter with
recent hospitalization for bradycardia and ventricular tachycardia which, he opined, was likely
iatrogenic. Dr. Benditt, who had treated appellant for his episode of atrial flutter in 2002,
advised on December 7, 2005 that atrial flutter could occur as a consequence of surgical
procedures due to electrolyte changes, catecholamine effects, infection, fluid volume changes or
inherent susceptibility. He advised that he had not played a role in appellant’s subsequent health
care and could not comment on what had happened since.
None of these reports relate appellant’s cardiac condition with his accepted herniated
disc, the April 2002 surgery, or his federal employment. Dr. Bostrom diagnosed dyspnea on
exertion but provided no opinion regarding its cause and medical evidence that does not offer
7

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

8

Dennis M. Mascarenas, 49 ECAB 215 (1997).

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any opinion regarding the cause of an employee’s condition is of diminished probative value on
the issue of causal relationship.9 Dr. Tang advised that appellant’s atypical atrial flutter was
caused by exertion. Drs. Bernard, Powell and Dagostino were in agreement that appellant’s
bradycardic episode that required hospitalization in August 2005 was iatrogenic, probably caused
by the medication he was taking. In his December 7, 2005 report, while Dr. Benditt opined that
atrial flutter and atrial fibrillation could occur as a consequence of several factors including an
inherent susceptibility, medical opinions that are speculative or equivocal in character have little
probative value.10
The record does not contain an opinion by a physician,11 supporting causal relationship
that is of reasonable medical certainty and supported with rationale explaining how appellant’s
current cardiac condition was caused or contributed to by the accepted herniated disc at L5-S1,
the April 2002 surgery, or to any other factor of his federal employment.12
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his current
cardiac condition is a consequence of his accepted herniated disc at L5-S1 or caused by
employment factors.

9

Ellen Noble, 55 ECAB 530 (2004).

10

Michael R. Shaffer, 55 ECAB 386 (2004).

11

Mr. Austin’s September 1, 2005 report is not probative medical evidence as nurse practitioners are not
considered physicians under the Act. 5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB ___ (Docket No. 04-1746,
issued December 20, 2004).
12

See Conard Hightower, 54 ECAB 796 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 1, 2006 be affirmed.
Issued: March 15, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, PA, Employer
__________________________________________
Appearances:
Thomas Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-1537
Issued: March 26, 2012

Case Submitted on the Record

ORDER AFFIRMING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On June 17, 2011 appellant, through his attorney, filed a timely appeal of a February 23,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). The
February 23, 2011 decision affirmed an August 24, 2010 OWCP decision finding that appellant
had a two percent permanent impairment to his right and left arms.
The Board has duly considered the matter and will affirm the February 23, 2011 decision.
On appeal, counsel expresses no disagreement with the schedule aware per se; but rather argues
that OWCP delayed adjudication of appellant’s schedule award claim until the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (2009)
became applicable on May 1, 2009.1 He argues that appellant has a property right in a schedule
award benefit under the fifth edition and a protected property interest cannot be deprived without
due process, citing Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge, 424 U.S.
319 (1976). The cases cited by counsel, however, held only that a claimant who was in receipt
of benefits (in Goldberg welfare benefits and in Mathews social security benefits) could not have
those benefits terminated without procedural due process. In this case, appellant had not
received a schedule award under the fifth edition.
1

For schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition. FECA Bulletin
No. 09-03 (issued March15, 2009).

In Harry D. Butler,2 the Board noted that Congress delegated authority to the Director of
OWCP regarding the specific methods by which permanent impairment is to be rated. Pursuant
to this authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.3 On March 15, 2009 he exercised
authority to advise that as of May 1, 2009 all schedule award decisions of OWCP should reflect
use of the sixth edition of the A.M.A., Guides.4 The applicable date of the sixth edition relates to
the date of the schedule award decision. It is not determined by either the date of maximum
medical improvement or when the claim for such award was filed.5 The Board accordingly finds
that the arguments presented are without merit regarding the February 23, 2011 OWCP decision
on appeal.
The Board notes that counsel also briefly suggested that there was a conflict in the
medical evidence6 between Dr. David Bundens and Dr. David Weiss. There are no medical
reports from Dr. Weiss in the case record. While appellant stated in his factual history there was
a report from Dr. Weiss dated June 27, 2010, the most recent report from an attending physician
is a December 6, 2007 report from Dr. Steven Allon. If appellant has additional relevant
evidence, he may submit new evidence or argument with a written request for reconsideration to
OWCP within one year of this merit order, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

2

43 ECAB 859 (1992).

3

Id. at 866; 20 C.F.R. § 10.404.

4

Supra note 1.

5

See D.O., Docket No. 11-350 (issued October 25, 2011).

6

FECA provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a).

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IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 23, 2011 is affirmed.
Issued: March 26, 2012
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

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

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

Docket No. 07-2269
Issued: April 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 30, 2007 nonmerit decision denying her request for further merit
review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
nonmerit decision. Because more than one year has elapsed between the Office’s last merit
decision of May 15, 2006 and the filing of this appeal, the Board lacks jurisdiction to review the
merits of this claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
This is the second time this case has been before the Board. By decision dated
December 6, 2001, the Board affirmed the Office’s November 19, 1999 decision terminating
appellant’s medical and compensation benefits as of December 5, 1999. The Board found that
the evidence established that appellant did not have continuing disability or residuals causally
related to her January 6, 1988 injury, which was accepted for left shoulder and neck strains and
C6-7, T2 and T6 subluxations.2 The facts and conclusions of law from that decision are
incorporated herein by reference.
By letters dated December 2, 2002, October 24 and December 13, 2005, but received by
the Office on April 13, 2006, appellant requested reconsideration. By decision dated May 15,
2006, the Office denied modification of the termination decision. It found that the evidence was
insufficient to establish that appellant had any residuals from her accepted injury.
On May 13, 2007 appellant requested reconsideration, contending that the evidence of
record established that her current condition was work related. Reiterating earlier arguments,
appellant stated that it was too late for her to find a doctor to connect her current condition to her
accepted injury. In support of her request, appellant submitted duplicates of documents
previously received and considered by the Office, including: decisions and correspondence from
the Office to appellant; reports from Dr. Chang Kang, a treating physician, for the period
February 25, 1992 through March 24, 1995; correspondence and reports from Dr. Frank. L.
Gamble, a chiropractor, for the period December 7, 1993 to June 15, 1999; September 30, 1999
reports from Dr. R. Sam Mayer, a treating physician; reports from Dr. Lynn Mershon, a Boardcertified physiatrist, for the period March 12 through May 28, 2002; reports from Dr. Julie M.
Wehner, a Board-certified orthopedic surgeon, for the period June 2 through August 6, 1999; and
reports from Dr. Kenneth Sanders, a Board-certified orthopedic surgeon, for the period January 5
through May 26, 1993.
Appellant also submitted a November 7, 2006 report from Dr. Mershon, who related
appellant’s complaints of increased left-sided neck pain and left trapezius pain. She described
findings on examination and diagnosed left neck pain, upper thoracic back pain, mild right
scapular winging, history of work injury, motor vehicle accident and head trauma, and chronic
pain syndrome, with mild muscle tightness and spasm. Dr. Mershon noted that appellant was
interested in obtaining an expert opinion as to whether there was a relationship between her
current symptoms and her work injury. She declined to offer an opinion as to whether such a
causal relationship existed. Dr. Mershon explained that, “due to the nature of [appellant’s] case,
the length of time since her injury, and the available record that [she had], as well as the fact that
this is not something that [she does] on a regular basis, that [she] would prefer her to see an
additional physician, who is quite experienced in this area, for their opinion.”
By decision dated May 30, 2007, the Office denied appellant’s request for
reconsideration on the grounds that she neither raised substantive legal questions, nor included
new and relevant evidence.
2

Docket No. 00-956 (issued December 6, 2001).

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LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 Office regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.6
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.7 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.8
ANALYSIS
Appellant’s May 13, 2007 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, appellant
did not advance a relevant legal argument not previously considered by the Office.
Consequently, she is not entitled to a review of the merits of her claim based on the first and
second above-noted requirements under section 10.606(b)(2).
In support of her request for reconsideration, appellant submitted duplicates of
physicians’ reports and correspondence. As these documents were previously received and
considered by the Office, they are cumulative and duplicative in nature.9 The remaining
evidence submitted consisted of a November 7, 2006 report from Dr. Mershon, who declined to
offer an opinion as to whether there existed a causal relationship between appellant’s current
condition and the accepted injury. As the report offered no opinion on causal relationship, it is

3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on [her] own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

20 C.F.R. § 10.607(a).

6

20 C.F.R. § 10.608(b).

7

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

8

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

9

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).

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not relevant to the issue of this case.10 As it does not address the reason for the Office’s denial of
appellant’s claim, it is irrelevant and does not constitute a basis for reopening her case. The
Board finds that these documents do not constitute relevant and pertinent new evidence not
previously considered by the Office.11 Therefore, the Office properly determined that this
evidence did not constitute a basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied her May 13, 2007 request for reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

10

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006); Michael E. Smith, 50 ECAB
313 (1999).
11

See Susan A. Filkins, 57 ECAB ___ (Docket No. 06-868, issued June 16, 2006).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF THE ARMY, PERSONNEL
& EMPLOYMENT SERVICE, Washington, DC,
Employer
__________________________________________

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

Docket No. 07-823
Issued: November 1, 2007

Case Submitted on the Record

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

JURISDICTION
On February 5, 2007 appellant filed a timely appeal from a December 15, 2006 merit
decision of the Office of Workers’ Compensation Programs which found that she received an
overpayment of compensation. Pursuant to 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 appellant received an overpayment of compensation in the
amount of $62,084.88, for the period June 12, 2005 to October 28, 2006, because she accepted
wage-loss compensation following the termination of her compensation benefits; and (2) whether
she was at fault in the creation of the overpayment, thus precluding waiver.
FACTUAL HISTORY
On October 15, 1991 appellant, then a 43-year-old budget analyst, filed a traumatic injury
claim alleging that she fell on a slippery floor, injuring her left shoulder and hip. After accepting

the claim for left shoulder sprain with arthroscopy, left shoulder impingement, rotator cuff tear
and bursitis of the left hip, the Office placed her on the periodic rolls in receipt of compensation
for total disability.
On May 27, 2005 the Office terminated appellant’s compensation benefits, effective
June 12, 2005, on the grounds that she no longer had a disability or residuals from her accepted
conditions.
The record contains a payment report printout bearing an October 31, 2006 run date, for
the period June 12, 2005 through October 28, 2006. The report reflects that appellant received
wage-loss compensation for the above-referenced period in the total amount of $62,084.88.
By letter dated November 7, 2006, the Office advised appellant of its preliminary
determination that she had received an overpayment of compensation in the amount of
$62,084.88, because she had accepted compensation for wage loss for the period June 12, 2005
through October 28, 2006 following termination of her compensation benefits. It found that she
was at fault in the creation of the overpayment because she knowingly accepted payments to
which she was not entitled.1 Appellant was given 30 days in which to request a telephone
conference or a prerecoupment hearing before the Branch of Hearings and Review to object to
the overpayment determination or to present evidence on the issues of fault and the possibility of
waiver.
By letter dated December 4, 2006, appellant contested the preliminary finding of an
overpayment, stating that she continued to experience residuals from her accepted injury and had
been treated by multiple doctors. She indicated that she had responded in a timely fashion to the
Office’s April 6, 2005 notice of proposed termination and that the Office did not mention the
issue of termination or overpayment in letters to her dated June 2 and 21, 2006. Appellant
asserted that she was not at fault in the creation of the overpayment and requested waiver of
recovery of the overpayment.
Appellant submitted medical reports, dated April 17 to November 16, 2006, from
Dr. Daniel Ignacio, Board-certified in physical medicine and rehabilitation; a September 1, 2006
report of an x-ray of the left shoulder; a June 2, 2006 letter from the Office requesting
information as to appellant’s earnings for the previous 15-month period; information dated
June 29, 2006 regarding her earnings for said period; and a June 21, 2006 letter from the Office
acknowledging appellant’s change of address.

1

Office regulations provide that, in addition to providing narrative descriptions to recipients of benefits paid or
payable, the Office includes on each periodic check a clear indication of the period for which payment is being
made. A form is sent to the recipient with each supplemental check which states the date and amount of the
payment and the period for which payment is being made. For payments sent by electronic funds transfer, a
notification of the date and amount of payment appears on the statement from the recipient’s financial institution.
Absent affirmative evidence to the contrary, the beneficiary will be presumed to have received the notice of
payment, whether mailed or transmitted electronically. 20 C.F.R. § 10.430.

2

By decision dated December 15, 2006, the Office finalized its preliminary determination
that appellant had received an overpayment of compensation in the amount of $62,084.88, for
the period June 12, 2005 through October 28, 2006. It found that she was at fault in the creation
of the overpayment because she failed to return the payments after she was notified of the
termination of her entitlement to compensation and was thus, precluded from obtaining a waiver.
The Office instructed appellant to send a check in the full amount of the overpayment within 30
days.2
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act3 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.4 Section 8129(a) of the Act provides that, when an
overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Office, by decreasing later payments to which the
individual is entitled.5
ANALYSIS -- ISSUE 1
The Office terminated appellant’s entitlement to compensation benefits effective
June 12, 2005. However, the evidence reflects and appellant does not dispute, that she received
wage-loss compensation from the Office in the amount of $62,084.88, for the period June 12,
2005 to October 28, 2006. As she was not entitled to receive any disability compensation as of
June 12, 2005, the Board finds that the Office correctly determined that apppellant received an
overpayment of compensation in the amount $62,084.88, for the period in question.
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and its implementing regulations, an overpayment must be
recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.6 Section 10.433 of the implementing regulations provides that the Office may
consider waiving an overpayment if the individual to whom it was made was not at fault in
accepting or creating the overpayment.7 The regulation further provides that each recipient of
2

Appellant submitted additional evidence subsequent to the Office’s December 15, 2006 decision. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). Therefore, the Board may not consider this evidence for the first time on appeal.
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8102(a).

5

5 U.S.C. § 8129.

6

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

7

20 C.F.R. § 10.433(a).

3

compensation benefits is responsible for taking all reasonable measures to ensure that payments
he or she receives from the Office are proper.8 Under the regulations, a recipient will be found to
be at fault with respect to creating an overpayment if he or she accepted a payment which he or
she knew or should have known to be incorrect.9 Whether the Office determines that an
individual was at fault with respect to the creation of an overpayment depends on the
circumstances surrounding the overpayment.10
ANALYSIS -- ISSUE 2
By accepting payments after her entitlement to benefits was terminated, effective
June 12, 2005, appellant accepted payments that she knew or should have known were incorrect.
Therefore, she was at fault in the creation of the overpayment.11
On May 27, 2005 the Office terminated appellant’s compensation benefits effective
June 12, 2005. The record reflects that a copy of the Office’s decision was properly mailed to
appellant at her address of record in the ordinary course of business. Accordingly, appellant was
on notice that her benefits had been terminated and that she was not entitled to receive any
compensation payments subsequent to June 12, 2005. However, as noted, she accepted
compensation payments for the period June 12, 2005 through October 28, 2006, in the amount of
$62,084.88. As appellant was aware that her entitlement to benefits had been terminated, she
accepted payments that she knew or should have known to be incorrect. Accordingly, the Board
finds that she was at fault in the creation of the overpayment. The fact that the Office may have
been negligent in issuing the payments does not mitigate this finding.12
As appellant was at fault in the creation of the overpayment, she is not eligible for waiver
of recovery of the overpayment. The Office is required by law to recover this overpayment.13
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $62,084.88, for the period June 12, 2005 to October 28, 2006. It further finds that she was at
fault in the creation of the overpayment and is, therefore, not entitled to waiver of recovery of the
overpayment.
8
9

Id.
20 C.F.R. § 10.433(a)(3).

10

20 C.F.R. § 10.433(b).

11

See Otha J. Brown, 56 ECAB ___ (Docket No. 03-1916, issued December 23, 2004); Karen K. Dixon, 56
ECAB ___ (Docket No. 03-2265, issued November 9, 2004).
12

See 20 C.F.R. § 10.435(a); William E. McCarty, 54 ECAB 525 (2003).

13

Recovery of the overpayment is not an issue in this case, as appellant is not in receipt of continuing total
disability payments. With respect to the recovery of the overpayment, the Board’s jurisdiction is limited to those
cases where the Office seeks recovery from continuing compensation benefits under the Act. 20 C.F.R. § 10.441(a);
see also Bob R. Gilley, 51 ECAB 377 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the December 15, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION
DIVISION, JACKSONVILLE AIR-MARINE
BRANCH, Jacksonville, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 06-2119
Issued: February 5, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 21, 2006 appellant filed a timely appeal from an August 7, 2006 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that he sustained greater than a two percent
monaural hearing loss in the left ear, for which he received a schedule award.

FACTUAL HISTORY
The Office accepted that on or before February 1, 2006 appellant, then a 46-year-old law
enforcement officer and pilot, sustained a bilateral sensorineural hearing loss due to hazardous
noise exposure from helicopters, turbine aircraft and weapons fire.1
On June 14, 2006 the Office referred appellant and a statement of accepted facts to
Dr. R. Michael Loper, a Board-certified otolaryngologist, for a second opinion evaluation. In a
June 29, 2006 report, Dr. Loper opined that appellant had a bilateral high frequency
sensorineural hearing loss. He related appellant’s complaints of constant bilateral tinnitus.
Dr. Loper opined that appellant’s hearing loss was caused by prolonged hazardous noise
exposure at work. He obtained audiometric test results. Testing for the right ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) revealed decibel losses of 10, 10,
25 and 30 respectively. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and
3,000 cps revealed decibel losses of 15, 25, 20 and 35 respectively. Dr. Loper commented that
appellant was a borderline candidate for hearing aids. He did not opine that appellant’s tinnitus
affected his ability to perform the activities of daily living.
On July 11, 2006 the Office referred the record and statement of accepted facts to an
Office medical adviser to determine the extent of appellant’s hearing loss. In a July 12, 2006
report, the Office medical adviser determined that appellant had a ratable monaural sensorineural
hearing loss. Testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps
revealed decibel losses of 10, 10, 25 and 30 respectively. These decibels were totaled at 75 and
were divided by 4 to obtain the average hearing loss at those cycles of 18.75 decibels. The
average of 18.75 decibels was then reduced by 25 decibels to equal zero, resulting in a zero
percent loss of hearing for the right ear. Testing for the left ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cps revealed decibel losses of 15, 25, 30 and 35 respectively. These
decibels were totaled at 105 and were divided by 4 to obtain the average hearing loss at those
cycles of 26.25 decibels. The average of 26.25 decibels was then reduced by 25 decibels to
equal 1.25 which was multiplied by the established factor of 1.5 to compute a 1.88 percent loss
of hearing for the left ear, rounded up to 2 percent.
On July 17, 2006 appellant filed a schedule award claim.
By decision dated August 7, 2006, the Office granted appellant a schedule award for a
two percent monaural hearing loss. The period of the award ran from June 29 to July 6, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 provides
for compensation to employees sustaining permanent loss, or loss of use, of specified members
of the body. The Act, however, does not 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
1

Appellant submitted 1986 and 1987 audiograms performed prior to his federal employment. These audiograms
do not demonstrate a ratable hearing loss.
2

5 U.S.C. §§ 8101-8193.

2

rests in the sound discretion of the Office. 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 American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001), has been adopted by the Office for evaluating schedule
losses and the Board has concurred in such adoption.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.6 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.7 The Board has concurred in the Office’s adoption of this standard for
evaluating hearing loss.8
Regarding tinnitus, the A.M.A., Guides states that “[t]innitus in the presence of unilateral
or bilateral hearing impairment may impair speech discrimination.” Therefore, add up to five
percent for tinnitus in the presence of measurable hearing loss if the tinnitus impacts the ability
to perform the activities of daily living.9
ANALYSIS
The Office accepted that appellant sustained a binaural high frequency sensorineural
hearing loss due to hazardous noise exposure at work. To determine appellant’s entitlement to a
schedule award, the Office obtained a second opinion report and audiometric test results from
Dr. Loper, a Board-certified otolaryngologist, who found a bilateral high frequency sensorineural
hearing loss. The Board finds that Dr. Loper used the appropriate portions of the A.M.A.,
Guides and accurately calculated a two percent monaural hearing loss on the left and a zero
percent hearing loss on the right. He did not note any additional impairment for tinnitus. An
Office medical adviser concurred with Dr. Loper’s calculation of a two percent monaural hearing
loss. Based on the Office medical adviser’s interpretation of the audiometric tests obtained by
Dr. Loper, the Office granted appellant a schedule award for a two percent monaural hearing

3

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

4

A.M.A., Guides 250.

5

Id.

6

Id.

7

Id.

8

Reynaldo R. Lichtenberger, 52 ECAB 462 (2001). The Board notes that, while the November 15, 1999 schedule
award was calculated while the fourth edition of the A.M.A., Guides was still in effect, this is nondispositive on the
present appeal.
9

Supra note 4 at 246.

3

loss. The Board finds that the Office properly found that appellant had a two percent monaural
hearing loss due to hazardous noise exposures at work.
The Board notes that appellant had symptoms of bilateral tinnitus. The A.M.A., Guides,
provides that tinnitus, in the presence of unilateral or bilateral hearing impairment, may impair
speech discrimination and provides for up to a five percent rating for tinnitus, in the presence of
measurable hearing loss, if the tinnitus impacts the ability to perform activities of daily living.10
In this case, Dr. Loper related appellant’s complaints of bilateral tinnitus. However, he did not
opine that tinnitus affected appellant’s ability to perform activities of daily living. The Office
medical adviser also did not find any additional impairment for tinnitus. There is no medical
evidence of record contrary to these opinions. Therefore, appellant has not established that he is
entitled to receive an additional schedule award for tinnitus.
CONCLUSION
The Board finds that appellant has not established that he sustained greater than a two
percent monaural hearing loss in the performance of duty, for which he received a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 7, 2006 is affirmed.
Issued: February 5, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10

Supra note 4 at 246; Juan A. Trevino, 54 ECAB 356 (2003).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Tulsa, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1628
Issued: November 15, 2007

Case Submitted on the Record

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

JURISDICTION
On May 30, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decisions dated August 1 and November 24, 2006 denying his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of this claim.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty on or about October 19, 2004, as alleged.
FACTUAL HISTORY
On December 5, 2005 appellant, then a 41-year-old civil engineer, filed a traumatic injury
claim alleging that on October 25, 2004 he sustained an injury when, while inspecting a roof
installed by a contractor, he fell in a swimming pool in the back yard and hit his rib cage on the
edge of the pool. In completing the claim form, the employing establishment indicated that it
was unable to verify the facts surrounding the alleged event. In support of his claim, appellant

filed discharge instructions from Sebastian River Medical Center dated October 24, 2004
indicating that he had been treated on that date by an emergency care provider. He also
submitted a memorandum indicating that effective October 15, 2004 he was assigned to provide
emergency assistance to the Emergency Operations Center, Readiness Branch as a result of
Hurricane Frances.
By letter dated June 23, 2006, the Office requested further information. No further
information was timely received.
By decision dated August 1, 2006, the Office denied appellant’s claim for the reason that
the evidence failed to establish that the October 25, 2004 incident occurred as alleged and that
there was no medical evidence that provided a diagnosis which could be connected to the
claimed event.
On September 11, 2006 appellant requested reconsideration. In an accompanying letter,
he indicated that on October 19, 2004 he was on duty working as roofing quality assurance
personnel for Hurricane Frances. In a statement dated October 24, 2004, appellant indicated that
on October 19, 2004 he was walking backward on the edge of a swimming pool, that the
swimming pool “cut out right behind me” and that he fell down. He noted that he tried to grab
the edge of the pool while falling and that this was when he hit his rib. Appellant indicated that
the pain in his rib continued so he decided to seek medical treatment and to report it to the
appropriate authority. He also submitted a prescription dated October 24, 2004 and a copy of his
time sheet indicating that he took sick leave for October 20, 2004.
By decision dated November 24, 2006, the Office reviewed appellant’s case on the merits
and modified the decision to reflect that his claim was denied on the grounds that he had not
submitted sufficient evidence to support his contention that he suffered a traumatic injury while
in the performance of duty on October 19, 2004.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that an
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. 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.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first 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
1

5 U.S.C. § 8122(a).

2

Id.

2

submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.3 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.4
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence.5 An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and the circumstances and his subsequent course of action.6 An employee has not met his
burden of proof of establishing the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim.7 Such circumstances as late
notification of injury, lack of confirmation of injury, continuing to work without apparent
difficulty following the alleged injury and failure to obtain medical treatment may, if otherwise
unexplained, cast sufficient doubt on an employee’s statements in determining whether a prima
facie case has been established.8 However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.9
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to a specific condition of employment.10 Neither the fact that a
condition became apparent during a period of employment nor appellant’s belief that the
employment caused or aggravated his condition is sufficient to establish causal relationship.
ANALYSIS
In the instant case, appellant alleged on his claim form that he sustained an injury in the
performance of duty when he fell and hit his rib cage on the edge of the pool on
October 25, 2004. He subsequently alleged that the injury occurred on October 19, 2004. The
Board notes that appellant did not file a claim until December 5, 2005, over one year later.
Appellant has submitted no witness statements in support of his claim and the employing
establishment indicated that it could not confirm the circumstances surrounding his claim. The
3

John J. Carlone, 41 ECAB 345 (1989).

4

Shirley A. Temple, 48 ECAB 404 (1997).

5

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

6

Charles B. Ward, 38 ECAB 667, 670 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

7

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

8

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

9

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

10

Katherine J. Friday, 47 ECAB 591 (1996).

3

alleged dates of the traumatic incident are not consistent. On the claim form, appellant indicates
that he was injured on October 25, 2004, the same date that he visited the emergency room.
However, with his request for reconsideration, he listed the date of injury as October 19, 2004.
The Board further notes that, if the date of injury was October 19, 2004, appellant worked a full
day on that date, was off on October 20, 2004 for sick leave and then returned to work full time
on October 21, 2004. There is no evidence that appellant informed his supervisor of his injury at
the time of the injury. Accordingly, there are discrepancies with regard to how his injury
occurred in that it was not promptly reported, there were no witness statements, there is
confusion as to the date of injury and there is no indication that appellant stopped work on the
date of the injury. The Board further notes that the medical evidence in the record does not
indicate that appellant sought prompt medical treatment. Although there is a notation that
appellant visited an emergency room on October 25, 2004, there is no indication as to the
treatment he received or any description of appellant’s alleged work injury. Due to these
discrepancies in the evidence, the Board finds that appellant has not met his burden of proof to
establish that the work incident occurred as alleged.11
As the Board finds that appellant has not met his burden of proof in establishing that the
work incident occurred as alleged, it is not necessary to address the medical evidence.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on or about October 19, 2004, as alleged.

11

D.B., 58 ECAB ___ (Docket No. 07-440, issued April 23, 2007).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 24 and August 1, 2006 are affirmed.12
Issued: November 15, 2007
Washington, DC

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

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

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

12

The Board notes that appellant submitted further evidence after the Office issued its November 24, 2006
decision. The Board may not consider evidence for the first time on appeal which was not before the Office at the
time it issued the final decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office
and request reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Oak Creek, WI, Employer
)
___________________________________________ )
J.J., Appellant

Docket No. 07-348
Issued: June 1, 2007

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

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 20, 2006 appellant filed a timely appeal of the October 11, 2006 merit
decision the Office of Workers’ Compensation Programs which denied his claim for a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the case.
ISSUE
The issue is whether appellant has established that he has any permanent impairment
related to his accepted injury.
FACTUAL HISTORY
On June 3, 1999 appellant, then a 45-year-old mail handler, filed an occupational disease
claim alleging that he developed low back pain after loading and carrying bulk mail. His claim
was accepted for lumbosacral strain and expanded to include permanent aggravation of
degenerative disc disease. Appropriate compensation benefits were paid. Appellant did not stop
work.

Appellant submitted a June 22, 1998 report from Dr. Michael Yoshida, Board-certified in
physical medicine and rehabilitation. He noted that appellant’s history was significant for back
pain which developed in 1976 while on active service in the military, a bayonet wound in 1988, a
ruptured Achilles tendon which occurred while playing basketball in 1994 and degenerative disc
disease which developed in 1995. He diagnosed low back pain and degenerative disc disease.
Reports from Dr. Shakti Sabharwal, a Board-certified, internist, from July 6, 1999 to January 30,
2002 diagnosed lumbar spine degenerative disc disease and chronic low back pain. He indicated
that appellant would likely have permanent residuals. Reports from other healthcare providers
also noted appellant’s status and work restrictions.
In a decision dated April 26, 2002, the Office denied appellant’s claim for compensation
for the period February 9 to 12, 2002. On August 5, 2002 the Office denied modification of the
April 26, 2002 decision.
Appellant subsequently submitted treatment notes from facilities operated by the
Department of Veterans Affairs dated February 9, 2001 to March 7, 2005 which noted his
treatment for bilateral carpal tunnel syndrome, neck pain, degenerative disc disease of the
cervical spine and canal, foraminal narrowing at C5-7 and a herniated disc of the lumbar spine.
Also submitted was a magnetic imaging resonance (MRI) scan of the lumbar spine dated
February 5, 2004 which revealed multilevel degenerative disc disease with multilevel canal
narrowing at C5-6 and C6-7 and multilevel foraminal narrowing at C5-6 and C6-7. Appellant
submitted a Veterans Affair (VA) disability rating dated November 15, 2004 which granted him
a 40 percent disability rating for degenerative disc disease, a 30 percent rating for left Achilles
tendon rupture, a 10 percent rating for a left distal thigh bayonet wound and a 10 percent rating
for narcolepsy. A VA rating dated December 16, 2005 granted an additional 70 percent rating
for depression and a 20 percent rating for narcolepsy for a total rating of 90 percent effective
November 1, 2004.
On March 28, 2006 appellant filed a claim for a schedule award.
By letter dated May 12, 2006, the Office requested that appellant’s physician provide an
impairment rating of his lower extremities in accordance with the American Medical
Association, Guides to the Evaluation of Permanent Impairment,1 (A.M.A., Guides).
Appellant submitted an August 7, 2006 report from Dr. Michael W. Lischak, Boardcertified in physical medicine and rehabilitation. He diagnosed left Achilles tendon rupture, left
distal thigh bayonet wound and left knee arthritis. Dr. Lischak noted that appellant sustained 15
percent impairment for gait derangement in accordance with Figure 17-10, page 561 of the
A.M.A., Guides. In a report dated August 18, 2006, he indicated that appellant’s case was
complicated by the preexistence of a number of back and lower extremity injuries related to his
prior military service and the impairment calculation was reflective of appellant’s overall
impairment irrespective of cause. Dr. Lischak noted that appellant had a service connected
degenerative disc disease with low back pain, Achilles tendon rupture and a left distal thigh
bayonet wound and also sustained a worker’s compensation injury to the low back in May 1999.
He noted that the VA provided a disability rating of 40 percent for degenerative disc disease, 30
1

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

2

percent for the Achilles tendon rupture, 10 percent for the bayonet wound and 10 percent for a
left knee injury. Dr. Lischak noted that due to the range of injuries to appellant’s lower back and
left lower extremity, he rated appellant under Table 17-5, page 529 of the A.M.A., Guides. He
noted that appellant had an antalgic gait with a shortened stance due to moderate to advanced
arthritis changes to the left knee and left ankle and opined that in accordance with the A.M.A.,
Guides appellant sustained a 15 percent permanent impairment of both lower extremities.
In a report dated September 23, 2006, the Office medical adviser determined that
appellant was not entitled to a permanent impairment rating for the lower extremity as a result of
his accepted work-related injury. He advised that appellant was granted a 40 percent award from
the VA effective November 15, 2004. Dr. Lischak indicated that appellant had chronic low back
pain with radicular symptoms in the left leg prior to his employment and it was unclear how
appellant’s symptoms changed since his employment at the employing establishment. The
Office medical adviser noted that the treating physician did not clearly address how appellant’s
work-related condition caused any ratable impairment and, therefore, appellant was not entitled
to a schedule award.
By decision dated October 11, 2006, the Office denied appellant’s claim for a schedule
award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.4
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.5 As neither the Act nor its regulations provide for
the payment of a schedule award for the permanent loss of use of the back or the body as a
whole, no claimant is entitled to such a schedule award.6 The Board notes that section
8101(19) specifically excludes the back from the definition of “organ.”7 However, a claimant
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

5

Thomas J. Engelhart, 50 ECAB 319 (1999).

6

See Jay K. Tomokiyo, 51 ECAB 361 (2000).

7

5 U.S.C. § 8101(19).

3

may be entitled to a schedule award for permanent impairment to an upper or lower extremity
even though the cause of the impairment originated in the neck, shoulders or spine.8
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.9
ANALYSIS
On appeal, appellant argues that he has 15 percent permanent impairment of the lower
extremities as found by Dr. Lischak. The Office accepted his claim for lumbosacral strain and
permanent aggravation of degenerative disc disease. As noted, the Act does not permit a
schedule award based on impairment to the back or spine. Appellant may receive a schedule
award for impairment to the lower extremities if such impairment is established as being due to
his accepted back condition.
The Board has carefully reviewed Dr. Lischak’s reports. He determined that appellant
sustained a 15 percent permanent impairment of the lower extremities. However, Dr. Lischak
did not adequately explain how he reached this rating in accordance with the relevant standards
of the A.M.A., Guides.10 He failed to provide a history of appellant’s work-related injury or
provide medical reasoning to support how any impairment was caused or aggravated by the
accepted employment injury. Although Dr. Lischak opined that appellant sustained a 15 percent
impairment rating for gait derangement, he failed to note findings upon physical examination or
provide calculations in support of this determination. Dr. Lischak noted that appellant had an
antalgic gait with a shortened stance caused by arthritic changes to the left knee and left ankle.
Under Figure 17-10, page 561 of the A.M.A., Guides he stated that appellant sustained a 15
percent permanent impairment of the lower extremities. The Board has found that vague and
unrationalized medical opinions on causal relationship have little probative value.11 Dr. Lischak
opined that appellant had a work-related lower back injury which “may” be impairing the lower
extremities; however, he couched his opinion in speculative terms. The Board has held that
medical opinions which are speculative or equivocal in character are of diminished probative
value.12 The Board finds that Dr. Lischak did not sufficiently explain how appellant’s

8

Thomas J. Engelhart, supra note 5.

9

Veronica Williams, 56 ECAB ___ (Docket No. 04-2120, issued February 23, 2005).

10

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

11

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
12

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).

4

impairment was caused or aggravated by his accepted work injury and he did not properly follow
the A.M.A., Guides in rating impairment.13
The Office medical adviser properly reviewed the medical record and in a report dated
September 23, 2006, found no basis on which to attribute permanent impairment based on the
findings presented by Dr. Lischak to a scheduled member of the body.14 He indicated that
appellant had chronic low back pain with radicular symptoms in the left leg prior to his
employment with the employing establishment and it was unclear how his symptoms changed
since his employment with the employing establishment. The medical adviser noted that the
treating physician did not clearly demonstrate how appellant’s work-related condition caused any
ratable impairment. He found no basis under the A.M.A., Guides to attribute any ratable
impairment to appellant’s accepted employment conditions.
Consequently, appellant has not established entitlement to a schedule award for
permanent impairment caused or aggravated by his accepted employment conditions.

13

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
14

The Board notes that it is appropriate for an Office medical adviser to review the clinical findings of the
treating physician to determine the permanent impairment. See Federal (FECA) Procedure Manual, Part 3 -Medical, Medical Examinations, Chapter 3.500.5(c) (March 1994); Richard R. LeMay, 56 ECAB ___ (Docket No.
04-1652, issued February 16, 2005).

5

CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 11, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS BASE, Camp Pendleton, CA, Employer
__________________________________________

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

Docket No. 11-1658
Issued: April 18, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 8, 2011 appellant, through her attorney, filed a timely appeal from an April 28,
2011 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 the case.
ISSUE
The issue is whether OWCP properly terminated appellant’s medical benefits related to
her accepted cervical condition effective October 4, 2010.
FACTUAL HISTORY
On April 20, 2004 appellant, then a 55-year-old information technology specialist, was
injured in a motor vehicle collision while in the performance of duty. OWCP accepted her
traumatic injury claim on July 14, 2004 for left wrist contusion and abrasion, bilateral shoulder
1

5 U.S.C. § 8101 et seq.

sprains and strains and bilateral knee contusions. It subsequently expanded the claim to include
cervical and thoracic strains and migraine headaches on May 26, 2005. Appellant stopped work
on August 14, 2005 and did not return.2 She received compensation for temporary total
disability.
By decision dated November 3, 2009, OWCP terminated appellant’s medical benefits
related to her left wrist contusion and abrasion, bilateral shoulder sprains and strains, bilateral
knee contusions, thoracic strain and migraine headaches.3
OWCP referred appellant for a second opinion examination to Dr. William P. Curran Jr.,
a Board-certified orthopedic surgeon, regarding her cervical condition. In a July 29, 2009 report,
Dr. Curran noted that she experienced intermittent neck pain. On examination, he observed
tenderness, limited range of motion (ROM) and a positive foraminal compression test. Various
radiological scans obtained in 2004 exhibited degenerative disc and joint disease at C5- and C6-7
and a herniated disc at C6-7. Dr. Curran diagnosed cervical strain and sprain, C6-7 disc
herniation, bilateral neural foraminal stenosis and preexisting cervical degenerative disc disease.
He opined that the April 20, 2004 motor vehicle collision permanently aggravated appellant’s
cervical degenerative disc disease. Dr. Curran added: “[Appellant] continues to suffer residuals
of her injury and the medical reasons related to that include limitation of cervical spine motions
[and] diagnostic studies indicating significant pathology at the C6-7 level of the cervical spine.”
He recommended cervical discectomy and permanent physical restrictions. In a September 13,
2009 addendum, Dr. Curran reiterated that the April 20, 2004 employment incident aggravated
appellant’s arthritic condition and led to her C6-7 disc herniation.
In an October 21, 2009 report, Dr. Janet Dunlap, a Board-certified orthopedic surgeon,
examined appellant’s neck and observed tenderness to palpation and diminished ROM. A
May 19, 2009 magnetic resonance imaging (MRI) scan showed C5- and C6-7 disc degeneration
as well as right C6-7 foraminal stenosis. Dr. Dunlap diagnosed cervical strain and sprain and
pointed out the absence of radiculopathy or myelopathy symptoms. She concurred with
Dr. Curran’s opinion that the April 20, 2004 motor vehicle collision aggravated appellant’s
preexisting cervical degenerative disc disease, but determined that surgery was unnecessary as
she merely sustained a simple strain with axial neck pain. In a November 16, 2009 addendum,
Dr. Dunlap clarified that the April 20, 2004 employment incident did not directly cause,
aggravate, precipitate or accelerate appellant’s cervical degenerative disc disease and
spondylosis because a material change altering the course of the underlying disease did not
occur.

2

The foregoing information was incorporated into a December 9, 2009 statement of accepted facts.

3

On May 13, 2010 OWCP reversed the November 3, 2009 decision in part, finding that the medical evidence did
not sufficiently establish that appellant’s migraine headaches resolved. The case remains open for this condition,
which is not presently before the Board.

2

OWCP informed appellant in a March 1, 2010 letter that a conflict in medical opinion
existed between Drs. Curran and Dunlap and referred appellant for a referee examination to
Dr. Laurence M. McKinley, a Board-certified orthopedic surgeon.4
In an April 12, 2010 report, Dr. McKinley conducted a physical evaluation and
commented that the cervical spinal posture and ROM were essentially normal. Following a
review of the medical file and the December 9, 2009 statement of accepted facts, he diagnosed
cervical strain and aggravation of underlying cervical degenerative disc disease. Dr. McKinley
advised that appellant had mild residual cervical pain related to the work injury. He remarked
that she sustained permanent aggravation of cervical degenerative disc disease due to the
April 20, 2004 motor vehicle accident, but indicated that it “ceased approximately 12 weeks
following the motor vehicle accident [in or around July 2004].” Dr. McKinley agreed with
Dr. Dunlap’s opinion that surgery was unwarranted. OWCP informed him in a May 14, 2010
letter that he needed to provide medical rationale explaining whether appellant sustained
permanent or temporary aggravation of her cervical degenerative disc disease and, if temporary,
whether the aggravation resolved. In a supplemental report dated May 14, 2010, Dr. McKinley
elaborated that she sustained a temporary aggravation of her preexisting cervical degenerative
disc disease that did not result in permanent damage and should have resolved approximately 12
weeks after the accepted employment incident.
On July 19, 2010 OWCP issued a notice of proposed termination of medical benefits
related to appellant’s cervical condition. It gave appellant 30 days to submit rebuttal evidence.
In a September 10, 2010 report, Dr. Scott P. Leary, a neurosurgeon, noted that appellant
complained of neck pain radiating to the left interscapular region. On examination, he observed
posterior cervicothoracic junction tenderness and a positive left Spurling’s test. A September 8,
2010 MRI scan exhibited C4-5, C5-6 and C6-7 disc height losses, C5-6 disc bulging, foraminal
stenosis and osteophyte formation and C6-7 retrolisthesis and foraminal stenosis.5 Dr. Leary
diagnosed cervical radiculopathy due to C5-6 and C6-7 disc disease and instability and advised
that appellant undergo cervical discectomy.6
In a September 16, 2010 report, Dr. Jamieson S. Glenn, a Board-certified orthopedic
surgeon, restated the findings of the September 8, 2010 MRI scan and assessed cervical
spondylosis with foraminal narrowing and cervicalgia.7
By decision dated October 4, 2010, OWCP terminated appellant’s medical benefits
related her cervical strain effective immediately, finding that Dr. McKinley’s April 12 and
May 14, 2010 reports constituted the weight of the medical evidence.
4

OWCP indicated that an attached statement identified the nature of this conflict. This attachment is not included
in the case record.
5

The case record contains a September 8, 2010 cervical MRI scan obtained by Dr. Glenn H. Tsukada, a Boardcertified diagnostic radiologist.
6

Appellant underwent neck surgery on September 29, 2010.

7

Other medical evidence submitted by appellant did not address her cervical condition.

3

Appellant’s counsel requested a telephonic hearing, which was held on February 7, 2011.
Appellant testified that the April 20, 2004 motor vehicle collision resulted in cervical
spondylosis, stenosis and foraminal narrowing. In an April 11, 2011 letter, she argued that
Dr. McKinley’s referee examination did not sufficiently resolve the conflict in medical opinion.
Appellant also denied having any preexisting neck condition before April 20, 2004.
On April 28, 2011 OWCP’s hearing representative affirmed the October 4, 2010
decision.
LEGAL PRECEDENT
Once OWCP has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits,8 which includes furnishing rationalized medical opinion
evidence based on a proper factual and medical background.9 Having determined that an
employee has a disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability ceased or was no longer related to
the employment.10 The right to medical benefits for an accepted condition, on the other hand, is
not limited to the period of entitlement to disability compensation. To terminate authorization
for medical treatment, OWCP must establish that an employee no longer has residuals of an
employment-related condition, which would require further medical treatment.11
If there is a conflict in medical opinion between the employee’s physician and the
physician making the examination for the United States, OWCP shall appoint a third physician,
known as a referee physician or impartial medical specialist, to make what is called a referee
examination.12 Where OWCP has referred appellant to a referee physician to resolve a conflict,
the referee’s opinion, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.13
ANALYSIS
OWCP accepted that appellant sustained a work-related cervical strain due to an April 20,
2004 motor vehicle collision. In July 29 and September 13, 2009 reports, Dr. Curran, OWCP’s
second opinion examiner, diagnosed a cervical strain and concluded that the accepted
employment incident aggravated her preexisting cervical degenerative disease. Dr. Dunlap
opined in a November 16, 2009 report that the motor vehicle accident did not materially alter this
underlying condition. She also diagnosed a cervical strain. OWCP determined that a conflict in
8

I.J., 59 ECAB 408 (2008); Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

9

D.C., Docket No. 09-1070 (issued November 12, 2009); Larry Warner, 43 ECAB 1027 (1992).

10

I.J., supra note 8.

11

L.G., Docket No. 09-1692 (issued August 11, 2010); Furman G. Peake, 41 ECAB 361, 364 (1990).

12

See 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321.

13

L.W., 59 ECAB 471 (2007); James P. Roberts, 31 ECAB 1010 (1980).

4

medical opinion existed and thereafter appointed Dr. McKinley as an impartial medical
specialist.
The Board finds that Dr. McKinley was not an impartial medical specialist with regard to
whether appellant’s accepted cervical condition has resolved because a conflict in medical
opinion on this matter did not exist at the time of the referral. As noted, OWCP accepted
cervical strain. However, Drs. Curran and Dunlap each diagnosed cervical strain in their
respective reports. Neither physician expressly addressed whether this accepted condition
resolved or if it was no longer employment related. Instead, both reports focused on whether
appellant aggravated preexisting cervical degenerative disease, a condition that OWCP did not
accept as employment related. While Dr. McKinley’s opinion was not entitled to the special
weight afforded to a referee physician, his report can still be considered for its own intrinsic
value and can still constitute the weight of the medical evidence.14
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
medical benefits related to her accepted cervical strain. In his initial April 12, 2010 report,
Dr. McKinley diagnosed cervical strain and aggravation of preexisting cervical degenerative disc
disease. He added that this aggravation of a nonaccepted condition stemmed from the April 20,
2004 motor vehicle collision and ceased in or around July 2004, approximately 12 weeks after
the incident. Dr. McKinley also noted that appellant had mild residual cervical pain related to
the work injury. He did not indicate that the work-related cervical strain had resolved. In a
May 14, 2010 supplemental report, Dr. McKinley elaborated that appellant sustained a
temporary aggravation of underlying cervical degenerative disc disease that resolved in or
around July 2004. OWCP did not ask him to address whether the accepted cervical stain had
resolved and he did not specifically address whether the accepted cervical strain had resolved.
Thus, the medical evidence is insufficient to establish that the accepted cervical strain has
resolved. Instead, the reports of Drs. Curran, Dunlap and McKinley all diagnose a cervical strain
and none of these physicians clearly indicate that it is no longer employment related. Therefore,
the Board finds that OWCP improperly relied on Dr. McKinley’s opinion in terminating
appellant’s medical benefits related to her accepted cervical condition.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s medical benefits related
to her accepted cervical condition effective October 4, 2010.

14

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

5

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 18, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bell City, LA, Employer
__________________________________________

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Appearances:
Brett E. Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1742
Issued: January 19, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 8, 2017 appellant, through counsel, filed a timely appeal from a May 26, 2017
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.
ISSUE
The issue is whether appellant met her burden of proof to establish disability for the
period December 8, 2012 and continuing due to her accepted employment conditions.

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.

FACTUAL HISTORY
On June 13, 2012 OWCP accepted that appellant, then a 58-year-old rural carrier,
sustained a concussion, open head wound, and head contusion when her postal vehicle was
struck from behind on April 24, 2012.
Appellant stopped work on the date of injury and never returned. She received
continuation of pay from the date of injury through June 3, 2012. Appellant used personal leave
beginning June 4 through December 7, 2012, and entered leave without pay status beginning
December 8, 2012. On January 10, 2013 she claimed wage loss beginning December 8, 2012
and continuing.
Appellant underwent a right total knee replacement on September 18, 2012. A left carpal
tunnel release, as well as a right carpal tunnel injection, was performed on May 23, 2013. On
October 23, 2013 appellant underwent a left shoulder surgery. No preauthorization was sought
from OWCP prior to any of the surgical procedures.
On February 6, 2013 OWCP developed the period of wage loss beginning
December 8, 2012. By decision dated April 16, 2013, it denied entitlement to wage-loss
compensation benefits for the period beginning December 8, 2012. OWCP found that the
conditions identified as disabling were not related to the employment injury of April 24, 2012.
Appellant continued to file wage-loss compensation claims. By decision dated
September 16, 2013, OWCP denied wage-loss compensation benefits for the period June 5
through July 19, 2013. It again found that wage loss was not related to the work accident or
accepted conditions.
Appellant disagreed with the September 16, 2013 decision and counsel at the time
requested a telephonic hearing, by letter dated September 27, 2013 before an OWCP hearing
representative.
OWCP subsequently developed and denied additional claims for wage-loss compensation
for periods July 20 through August 30, 2013 and August 31, 2013 and continuing by decisions
dated October 30 and December 31, 2013.
On January 31, 2014 appellant requested a hearing regarding OWCP’s December 31,
2013 decision. OWCP’s Branch of Hearings and Review denied the request on March 5, 2014
based on her failure to timely invoke her appellate right.
Counsel at the time requested that the prior request for hearing be converted to a review
of the written record by an OWCP hearing representative.
In a June 5, 2014 decision, OWCP’s hearing representative affirmed OWCP’s
September 16, 2013 decision, which denied appellant’s disability claim for the period June 5
through July 19, 2013.
Appellant submitted a January 10, 2014 report from Dr. Larry Dilks, an attending clinical
psychiatrist, who indicated that due to depression, anxiety, post-traumatic stress syndrome, pain,
and age, she was unemployable. In a report dated February 10, 2014, Dr. Lawrence Weber, an
2

orthopedic surgeon, indicated that her surgical history related to the April 24, 2012 employment
accident included knee replacement, shoulder scope, and bilateral carpal tunnel release. He
found that she was unable to perform the duties of her regular job.
In a January 1, 2014 report, Dr. Paul Fenn, Board-certified in orthopedic surgery, advised
that appellant was unable to perform the duties of a rural mail carrier. He noted a surgical
history “related to the accident.” In a February 25, 2014 report, Dr. Nathan Cohen, Boardcertified in orthopedic surgery, noted that appellant’s “original job as a rural mail carrier presents
issues, given the relatively arduous nature of her employment. It appears from letters written by
Dr. Weber and Dr. Fenn, based on extenuating circumstances involving other comorbidities, she
would be unable to perform the workload required of her.”
By July 2, 2015 decision, OWCP denied modification of the June 5, 2014 decision
finding that appellant failed to meet her burden of proof to establish disability for the period
June 5 through July 19, 2013 due to her accepted employment conditions.
Appellant submitted an April 6, 2016 report in which Dr. Cohen indicated that her workrelated conditions necessitated her undergoing right total knee replacement surgery.
In an August 22, 2016 decision, OWCP denied modification of the July 2, 2015 decision
finding that appellant failed to meet her burden of proof to establish disability for the period
December 8, 2012 and continuing due to her accepted employment conditions. This decision
lengthened the period of disability being denied, beyond July 19, 2013.
Appellant submitted a December 19, 2016 report in which Dr. John Ellis, an attending
Board-certified family practitioner, requested an expansion of her accepted conditions. Dr. Ellis
provided an opinion that she was unable to work due to the accepted conditions.
By May 26, 2017 decision, OWCP denied modification of the August 22, 2016 decision
finding that appellant failed to meet her burden of proof to establish disability for the period
December 8, 2012 and continuing due to her accepted employment conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 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 In general the term disability under FECA means
incapacity because of injury in employment to earn the wages which the employee was receiving
at the time of such injury.4 This meaning, for brevity, is expressed as disability for work.5

3

J.F., Docket No. 09-1061 (issued November 17, 2009).

4

See 20 C.F.R. § 10.5(f).

5

Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

3

The medical evidence required to establish a causal relationship between a claimed
period of disability and an employment injury is rationalized medical opinion evidence. 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.6
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability for
the period December 8, 2012 and continuing due to her accepted employment conditions, i.e., a
concussion, open head wound, and head contusion which were sustained when her postal vehicle
was struck from behind on April 24, 2012.
Appellant submitted a January 10, 2014 report from Dr. Dilks, an attending clinical
psychiatrist, who indicated that due to depression, anxiety, post-traumatic stress syndrome, pain,
and age, she was unemployable. In a report dated February 10, 2014, Dr. Weber indicated that
her surgical history related to the April 2012 accident included knee replacement, shoulder
scope, and bilateral carpal tunnel release. He found that appellant was unable to perform the
duties of her regular job.
In a January 1, 2014 report, Dr. Fenn advised that appellant was unable to perform the
duties of a rural mail carrier. He noted a surgical history “related to the accident.” In a
February 25, 2014 report, Dr. Cohen noted that appellant’s “original job as a rural mail carrier
presents issues, given the relatively arduous nature of [appellant’s] employment. It appears from
letters written by Dr. Weber and Dr. Fenn, based on extenuating circumstances involving other
comorbidities, she would be unable to perform the workload required of her.”7 Appellant also
submitted a December 19, 2016 report in which Dr. Ellis requested an expansion of her accepted
conditions. Dr. Ellis provided an opinion that she was unable to work due to the accepted
conditions.
The Board finds that these reports are of limited probative value on the relevant issue of
this case. None of the physicians provided a complete and accurate history with objective
findings and a rationalized opinion in support of appellant being totally disabled from work on or
after December 8, 2012 due to her accepted work-related conditions beginning
December 8, 2012. The Board has held that a report is of limited probative value regarding
causal relationship if it does not contain medical rationale explaining how an employment
activity could have caused or aggravated a medical condition.8 A number of these physicians
related appellant’s disability to conditions which have not been accepted as work related.

6

See E.J., Docket No. 09-1481 (issued February 19, 2010).

7

Appellant also submitted an April 6, 2016 report in which Dr. Cohen indicated that her work-related conditions
necessitated her undergoing right total knee replacement surgery.
8

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability for
the period December 8, 2012 and continuing due to her accepted employment conditions.
ORDER
IT IS HEREBY ORDERED THAT the May 26, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 19, 2018
Washington, DC

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

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

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

5