United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
TENNESSEE VALLEY AUTHORITY, JOHN
SEVIER FOSSIL PLANT, Rogersville, TN,
Employer
__________________________________________

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

Docket No. 13-1413
Issued: October 22, 2013

Case Submitted on the Record

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

JURISDICTION
On May 28, 2013 appellant filed a timely appeal from April 17 and May 3, 2013 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of both decisions.
ISSUES
The issues are: (1) whether appellant has more than a six percent hearing loss in the left
ear, for which he has received a schedule award; and (2) whether OWCP properly denied
authorization for hearing aids.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 11, 2012 appellant, then a 60-year-old conveyer car dumper operator, filed a
notice of occupational disease (Form CA-2) alleging hearing loss due to factors of his federal
employment. He first became aware of his hearing loss on September 18, 2009, and first
realized that it was caused or aggravated by his employment on September 10, 2012.
By letter dated October 29, 2012, OWCP requested additional factual and medical
evidence from appellant. It afforded him 30 days to submit the evidence. OWCP also requested
that appellant’s employing establishment respond to its inquiries regarding his duties and facts
surrounding his injury.
Appellant responded by letter dated November 13, 2012, detailing his federal and
nonfederal work history, his exposure to noise and his use of hearing protection during his
employment and his hobbies involving exposure to loud noise. His employing establishment
similarly responded, detailing his duties, noise exposure levels and use of hearing protection.
In a July 17, 2012 report, Dr. Susan P. Abernathy, a Board-certified otolaryngologist,
noted appellant’s exposure to high levels of noise at work. She diagnosed appellant with
Eustachian tube dysfunction and serous otitis media of the left ear, citing tympanometry testing
as well as examination of the ear as the basis for her diagnosis. In an August 9, 2012 report,
Dr. Abernathy related that she had performed surgery on appellant to correct serous otitis media
in his left ear.
In a January 29, 2013 report, Dr. Whitney R. Mauldin, an audiologist, for the employing
establishment, stated that a May 23, 1994 hearing examination documented preexisting hearing
loss of the left ear. He submitted employing establishment audiology reports dated
September 18, 2009 to November 8, 2012.
On March 19, 2013 OWCP referred appellant to Dr. H. Grady Arnold, Jr., a Boardcertified otolaryngologist. In a report dated April 10, 2013, Dr. Arnold reviewed appellant’s
history of noise exposure and performed an otologic evaluation. Audiometric testing obtained on
April 2, 2013 at the frequency levels of 500, 1,000, 2,000 and 3,000 Hertz (Hz) revealed the
following: right ear 25, 30, 15 and 30 decibels; left ear 25, 25, 25 and 40 decibels. Dr. Arnold
determined that appellant sustained moderate high frequency sensorineural hearing loss in his
right ear and mixed moderately severe sensorineural hearing loss in his left ear. He found that
the sensorineural hearing loss was due to noise exposure in appellant’s federal employment.
Dr. Arnold stated that the pattern of appellant’s audiogram was consistent with noise exposure
and that he had increased hearing loss during his employment. He advised that no hearing aids
were recommended for appellant.
On April 16, 2013 a district medical adviser (DMA) reviewed the medical evidence and
audiometric testing to determine if appellant’s bilateral sensorineural hearing loss was ratable for
schedule award purposes and whether hearing aids should be authorized. The medical adviser
concluded that, under the sixth edition of the A.M.A., Guides, appellant had no ratable
impairment of the right ear and six percent impairment in the left ear. Hearing aids were not
authorized.

2

By decision dated April 17, 2013, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss. Because the medical evidence of record established that he did not
require hearing aids, they were not authorized.
On April 23, 2013 appellant filed a claim for a schedule award based on his accepted
bilateral sensorineural hearing loss.
By decision dated May 3, 2013, OWCP granted appellant a schedule award for a six
percent permanent impairment of his left ear. The award ran for 3.12 weeks from April 2
to 23, 2013. OWCP based the award on Dr. Arnold’s April 10, 2013 report and the April 16,
2013 report of its medical adviser.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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.4 The A.M.A., Guides have been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides point out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.7

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379, 385 (2006).

5

20 C.F.R. § 10.404; see F.D., Docket No. 09-1346 (issued July 19, 2010).

6

See A.M.A., Guides 250 (6th ed. 2009).

7

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

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ANALYSIS -- ISSUE 1
The Board finds that appellant does not have more than a six percent hearing loss of the
left ear.
Appellant’s claim of occupational hearing loss was accepted by OWCP based on the
report of Dr. Arnold, and an OWCP medical adviser. OWCP’s standardized procedures were
applied to Dr. Arnold’s April 10, 2013 report to arrive at an impairment rating of six percent for
the left ear. Test results for the frequency levels recorded at 500, 1,000, 2,000 and 3,000 Hz on
the right side revealed decibel losses of 25, 30, 15 and 30 decibels respectively, for a total of 100
decibels. This figure, divided by four, resulted in an average hearing loss of 25 decibels. The
average of 25 decibels, when reduced by the 25 decibel fence and multiplied by 1.5, results in a
zero percent monaural hearing loss of the right ear. Testing for the left ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of 25, 25, 25 and 40 decibels
respectively, for a total loss of 115 decibels. One hundred and fifteen decibels divided by four
results in an average of 28.75 decibels, which when reduced by the 25 decibel fence and
multiplied by 1.5, results in a 5.625 loss or a 6 percent monaural hearing loss of the left ear after
rounding up. Appellant’s binaural hearing loss, which OWCP’s medical adviser did not
calculate, would be one percent.8 There is no other medical evidence of record establishing
greater loss under established OWCP procedures. The record of audiometric tests performed at
the employing establishment from May 23, 1994 through November 8, 2012 does not meet the
requirements of the evidence to be used in evaluating occupational hearing loss claims as defined
by the Federal (FECA) Procedure Manual because the reports merely provide the results of each
test.9 The hearing test reports provided, dated from September 18, 2009 to November 8, 2012,
are similarly deficient for lacking one or more requirements.
Under FECA, the maximum award for monaural hearing loss is 52 weeks of
compensation.10 Appellant is entitled to six percent of 52 weeks, or 3.12 weeks of
8

Following the standardized formula for calculating binaural hearing loss, appellant’s lesser loss of zero percent
in the right ear is multiplied by five, arriving at a figure of zero; then added to his greater hearing loss of six percent
in the left ear, arriving at a figure of six; and finally divided by six, resulting in a rating of one percent binaural
hearing loss. The maximum number of weeks of compensation for binaural hearing loss is 200 weeks. One percent
of 200 weeks equals 2 weeks of compensation.
9

The Federal (FECA) Procedure Manual, provides that audiological testing should precede the otologic
examination; that the audiological evaluation and otologic examination be performed by different individuals as a
method of evaluating the reliability of the findings; that the clinical audiologist and otolaryngologist be certified;
that all audiological equipment authorized for testing meet the calibration protocol contained in the accreditation
manual of the American Speech and Hearing Association; that the audiometric test results include both bone
conduction and pure-tone air conduction thresholds; speech reception thresholds and monaural discrimination
scores; and that the otolaryngologist’s report include the date and hour of examination; date and hour of the
employee’s last exposure to loud noise; and a rationalized medical opinion regarding the relationship. Joshua A.
Holmes, 42 ECAB 231, 232 n.2 (1990).
10

The maximum number of weeks of compensation for hearing loss in one ear is 52 weeks. The Board finds that
the hearing loss in appellant’s left ear should be rounded to six percent, the nearest whole number. Six percent of 52
weeks equals 3.12 weeks of compensation. The right ear ratable loss of zero percent equals zero weeks of
compensation. Since the monaural loss results in a greater number of weeks, OWCP properly based the award on
monaural hearing loss. See W.Z., Docket No. 11-1371 (issued January 6, 2012).

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compensation, the amount granted in this case.11 There is no medical evidence conforming to
OWCP’s standards that supports a greater impairment. Dr. Arnold’s report complies with the
requirements of the evidence to be used in evaluating occupational hearing loss claims as defined
by FECA procedure manual. The DMA supported Dr. Arnold’s findings. The Board finds that
appellant has not established that he has more than a six percent hearing loss in the left ear.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability or aid in lessening the amount of the monthly
compensation.12 In interpreting this section of FECA, the Board has recognized that OWCP has
broad discretion in approving services provided under FECA with the only limitation on
OWCP’s authority being that of reasonableness.13
ANALYSIS -- ISSUE 2
On appeal, appellant contests the denial of hearing aids. The Board finds that OWCP did
not abuse its discretion by denying authorization for hearing aids.
In an April 10, 2013 report, Dr. Arnold, the referral physician, specifically found that
hearing aids were not recommended for appellant. OWCP’s medical adviser concurred in his
opinion on April 16, 2013. No other probative medical evidence bearing on this issue was
submitted.
Appellant also noted buzzing in his ears but Dr. Arnold did not rate any impairment to
appellant’s hearing due to tinnitus. In interpreting section 8103 of FECA, the Board has
recognized that OWCP has broad discretion in approving services provided under FECA with
the only limitation on OWCP’s authority being that of reasonableness.14 Abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deductions from established facts. It

11

The number of weeks of compensation awarded indicates that OWCP applied a six percent monaural hearing
loss rating. The date of maximum medical improvement in this case is considered to be the date of the evaluation by
the attending physician, Dr. Arnold, of April 2, 2013, which was accepted as definitive by OWCP in its decision.
This is the effective date for commencing the schedule award.
12

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288, 289 (1999).

13

James R. Bell, 52 ECAB 416 (2001).

14

Id.

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is not enough to merely show that the evidence could be construed so as to produce a contrary
factual conclusion.15
OWCP did not abuse its discretion in denying authorization for hearing aids. The
medical evidence of record does not establish that hearing aids were recommended. Should the
need for hearing aids arise in the future, appellant may file an appropriate request at that time.16
CONCLUSION
The Board finds that appellant has not established that he is entitled to a schedule award
for more than a six percent monaural impairment of his left ear. The Board further finds that
OWCP did not abuse its discretion in denying authorization for hearing aids.
ORDER
IT IS HEREBY ORDERED THAT the May 3 and April 17, 2013 merit decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 22, 2013
Washington, DC

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

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

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

15

Minnie B. Lewis, 53 ECAB 609 (2002).

16

See Charlie A. Penney, Docket No. 04-1432 (issued October 5, 2004).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE, Green
Bay, WI, Employer
__________________________________________

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

Docket No. 07-2341
Issued: March 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 17, 2007 appellant filed a timely appeal from the July 24, 2007 decision of
the Office of Workers’ Compensation Programs denying him a schedule award for his
employment-related hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he has a ratable employment-related
loss of hearing thereby entitling him to a schedule award.
FACTUAL HISTORY
On July 26, 2006 appellant, then a 58-year-old consumer safety inspector, filed an
occupational disease claim, Form CA-2, alleging that his hearing loss was caused by the high
levels of noise in the slaughter houses and processing plants where he worked. He began
working for the employing establishment in 1973. Appellant was exposed to a wide variety of

loud machinery, including grinders, blenders, chopper, linkers, air lines, steam lines and drive
motors. His supervisor, Richard Trudeau, stated that his assignments for the previous two years
included facilities with machine noise levels in excess of 85 decibels. Mr. Trudeau indicated that
appellant wore hearing protection when exposed to these noise levels. The employing
establishment provided audiograms.
On December 5, 2006 Dr. Mark Reinke, a Board-certified otolaryngologist, reported on
his December 4, 2006 evaluation of appellant’s hearing. Appellant reported difficulty hearing in
crowds and casual conversation. He denied tinnitus, otalgia, otorrhea, vertigo and family hearing
loss, but stated that he did have recreational loud noise exposure with deer hunting and chainsaw
use. Appellant reported that he had worked around heavy machinery since 1967, but did not
wear hearing protection until 1985. On examination, Dr. Reinke found that appellant’s ear
canals were normal and the tympanic membranes were intact. The tuning fork tests were
normal. Dr. Reinke noted that an audiogram showed mild sensorineural hearing loss bilaterally,
left greater than right. He found that appellant had a 0 percent hearing loss on the right, a 5.6
percent loss on the left, and a total binaural impairment of 0.9 percent. Dr. Reinke opined that,
given the extensive history of occupational noise exposure and the nature of appellant’s hearing
loss, a portion of the hearing loss was employment related.
On February 7, 2007 appellant was referred for a second opinion examination. On
March 9, 2007 Dr. Robert Prehn reviewed appellant’s medical records and factual history. He
noted that appellant had worked around extremely loud equipment in his federal employment
since 1973 and that he used no hearing protection prior to 1985. Appellant, who is a left-handed
shooter, reported that he discharged his hunting rifle five to six times a year and that he used a
chainsaw. On physical examination, Dr. Prehn found no abnormalities in the aural cavity or
tympanic membranes. The audiogram that was performed on March 9, 2007 showed high
frequency binaural hearing loss, left worse than right. Dr. Prehn opined that appellant’s noise
exposure was the primary cause for his hearing loss. He noted that the asymmetrical left side
losses were unusual, but could be caused by the intensity of the noise to which appellant was
exposed. Dr. Prehn stated that appellant’s hearing loss was permanent and would not improve,
but that hearing aids were not yet necessary.
By decision dated May 24, 2007, the Office accepted appellant’s claim for bilateral
sensorineural hearing loss. The Office referred his claim to an Office medical adviser for a
determination on his entitlement to a schedule award.
On May 28, 2007 Dr. David Garelick, the Office medical adviser, reviewed appellant’s
records and opined that the extent of hearing loss was over that which would be expected due to
presbycusis and was related to his federal employment. He noted that the March 5, 2007
audiogram, which measured hearing losses at 500, 1,000, 2,000 and 3,000 hertz (Hz), revealed
right ear losses of 10, 20, 20 and 25 decibels and left ear losses of 15, 20, 20 and 40 decibels,
respectively. Utilizing the hearing loss impairment formula from the American Medical
Association, Guides to the Evaluation of Permanent Employment (5th ed. 2001), Dr. Garelick
found zero percent binaural sensorineural hearing loss. He stated that the date of maximum
medical improvement was March 5, 2007.

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By decision dated July 24, 2007, the Office denied appellant’s claim for a schedule
award. The Office found that appellant’s hearing loss was not severe enough to be considered
ratable.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of scheduled members or functions of
the body.1 However, the Act does not specify the manner in which the percentage of loss is to 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.2
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.3 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at
each frequency are added up and averaged.4 Then, the fence of 25 decibels is deducted because,
as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability
to hear everyday speech under everyday conditions.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
ANALYSIS
Appellant provided the Office with the December 5, 2006 report of Dr. Reinke, a Boardcertified otolaryngologist, who found that he had 5.6 percent hearing loss in the left ear. The
report was not accompanied by any audiogram or audiometric calibration information, both of

1

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.404.

2

20 C.F.R. § 10.404.

3

A.M.A., Guides 246-51 (5th ed. 2001).

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Id.

5

Id.

6

Id.

7

Id.

8

Donald Stockstad, 53 ECAB 301 (2002), petition for recon., granted (modifying prior decision) Docket No. 011570 (issued August 13, 2002).

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which are required under Office procedures.9 For this reason, the impairment rating of
Dr. Reinke is of diminished probative value. Office procedures state that referral to a qualified
specialist for examination is appropriate when medical evidence submitted by the claimant does
not meet the requirements for adjudication. Because Dr. Reinke’s report was not sufficient to
establish the extent of appellant’s hearing impairment, the Board finds that the Office properly
referred appellant for a second opinion.10
Dr. Prehn, a Board-certified otolaryngologist, examined appellant on March 9, 2007. He
submitted a well-rationalized medical report based on a complete factual and medical history.
The report included all the information and documentation required by the Office procedures.
Dr. Prehn concluded that the audiogram demonstrated a high frequency bilateral hearing loss,
with the left ear worse than the right ear. He noted that appellant’s hearing loss was caused
primarily by noise exposure and that it was permanent and would not improve. The Board finds
that the medical opinion of Dr. Prehn carries the weight of the medical evidence.
Based on Dr. Prehn’s opinion, the Office accepted appellant’s hearing loss claim. It
referred the medical record to Dr. Garelick, an Office medical adviser, who he reviewed
Dr. Prehn’s report and properly utilized the A.M.A., Guides to determine whether appellant had
a compensable hearing loss. Dr. Garelick added the right ear decibel losses recorded at 500,
1,000, 2,000 and 3,000 Hz, which were 10, 20, 20 and 25 decibels, respectively, for a total loss
of 75 decibels. When divided by four, the result was an average hearing loss of 18.75 decibels.
The average loss was then reduced by the “fence” of 25 decibels to equal 0, which, when
multiplied by the established factor of 1.5 resulted in a 0 percent monaural hearing loss for the
right ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz
revealed leveled losses of 15, 20, 20 and 40 decibels, respectively, for a total of 95 decibels.
When divided by four, the result was an average hearing loss of 23.75 decibels. The average loss
was then reduced by the “fence” of 25 decibels to equal 0, which, when multiplied by the
established factor of 1.5 resulted in a 0 percent monaural hearing loss for the left ear.
Consequently, the evidence of record establishes that appellant has no ratable hearing loss in
either ear. The Board finds that the Office properly determined that appellant was not entitled to
a schedule award as his hearing loss was not significant enough to be ratable.
CONCLUSION
The Board finds that the Office properly determined that appellant’s employment-related
hearing loss is not ratable and, therefore, he is not entitled to a schedule award.

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirement for Medical Records, Chapter 3.600.8
(September 1996) (explaining the requirements for the audiometric and otologic examinations and documentation
suitable for establishing a hearing loss claim under the Act).
10

Vernon Brown, 54 ECAB 376 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 24, 2007 is affirmed.
Issued: March 18, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, WHITE HALL POST
OFFICE, White Hall, AR, Employer
__________________________________________

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

Docket No. 21-0050
Issued: February 25, 2022

Case Submitted on the Record

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

JURISDICTION
On October 19, 2020 appellant filed a timely appeal from an October 14, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 14, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On October 15, 2019 appellant, then a 57-year-old carrier technician/letter carrier, filed an
occupational disease claim (Form CA-2) alleging that she developed stress-related emotional and
physical conditions, including hypertension and anxiety, due to factors of her federal employment.
She explained that she was mandated to work overtime, often with no scheduled day off, and that
her stress-related mental and physical reactions resulted in lengthy absences beginning
November 2011. Appellant noted that she first became aware of her conditions on September 1,
2009 and realized its relation to her federal employment in November 4, 2016. She further noted
that she worked with a reasonable accommodation in 2017 but stopped work in 2018 due to an
alleged hostile work environment.
In an October 24, 2019 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and attached a questionnaire for her completion. In a
separate development letter of even date, OWCP requested that the em ploying establishment
provide additional information including comments from a knowledgeable supervisor and an
explanation of appellant’s work activities. It also specifically requested information as to whether
there were staffing shortages which affected her workload or extra demands for any reason.
OWCP afforded both parties 30 days to submit the necessary evidence.
In a December 4, 2019 response, appellant indicated that shortly after she began her postal
career in 1995 as a part time flexible (PTF) carrier, management required her to work “horrendous”
amounts of overtime. She described the duties of a PTF noting that her routes required her to walk
and carry a heavy satchel for extended periods of time, which caused pain and fatigue to her body.
Appellant alleged that she had signed the list for “no overtime” when she became a regular carrier
but was “always forced to carry … on a weekly basis.” She noted that the check stubs from her
years of working showed the excessive amounts of overtime worked. Appellant alleged that the
employing establishment’s practice of mandating her to work overtime caused a lot of stress and
eventually led to on-the-job injuries, unscheduled absences, elevated hypertension and depression.
She noted in 1997 her employment vehicle was hit from behind, but she alleged that the employing
establishment never recognized that she had sustained a back injury and did not approve her Family
and Medical Leave Act (FMLA) requests. Appellant indicated that she had requested permanent
light duty for her chronic permanent conditions, but the employing establishment removed her for
a year as she had less than five years of service. She noted that she got her job back with no back
pay following an Equal Employment Opportunity (EEO) claim. Appellant knew that she worked
under unfair, stressful and hostile work conditions, but she had no choice but to return to work
because she had to support her family. She noted in 2007 she was placed off the job for three
months but got her job back without back pay following an EEO claim. Appellant also noted
going through counseling through the Employee Assistance Program (EAP) for work -related
issues in 2005 and 2008. She alleged that she strained her back on several occasions while being
mandated to work overtime despite not being on the overtime list. However, appellant was too
afraid to identify her back injury given her removal for a year in 1999, having been disciplined for
attendance issues in 2008 and 2009, and her EEO claims were resolved with findings that no
discriminatory or disparate treatment had occurred. She indicated that she became anxious and
depressed in 2002, 2005-2008, 2011, 2016, and 2018, and described several acute stress reactions
she had in November 2011 and December 2016. Appellant noted that, in 2014, she stopped her
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outside employment of preparing tax returns during tax season as she had to work her off days at
the employing establishment. She also noted that work became so stressful that she resigned, but
she later rescinded her letter of resignation and was reinstated a few months later with no back
pay.
Appellant alleged that she continued to work excessive amounts of overtime due to the
employing establishment’s mandate. In 2000, she filed grievances for distribution of overtime and
being mandated to work off days and carry splits on other routes. Appellant also began to suffer
emotionally and physically as she could not rest and the exhaustion caused struggles in other areas
of her life. In 2011, she alleged that, after working excessive amounts of overtime and missing
work, she started to be harassed and retaliated against. Appellant noted having an acute stress
reaction, elevated hypertension, and concerns of a heart attack. She indicated that the mandated
overtime resumed after she returned to work from medical leave.
Medical documentation from several different providers dated 2011 through 2019 which
diagnosed depression and anxiety attributed to workplace stress, essential hypertension,
generalized anxiety disorder, acute stress reaction, unspecified anxiety disorder, and anxiety were
received. Multiple office visit notes from 2006, 2011, 2014, 2016, 2017, 2018, and 2019 were
also received along with a March 22, 2017 EAP note, psychotherapy notes dated August through
November 2019; a February 21, 2008 return to work/school note from Dr. Torrance A. Walker, a
Board-certified orthopedic surgeon, and August 1, 2014 and January 23, 2017 FMLA certification
of health care provider.
OWCP also received: an August 21, 1997 letter from appellant’s labor union; January 22,
1998 grievance denial regarding her February 4, 1997 work-related accident along with a copy of
the February 4, 1997 police report;3 an April 21, 1998 notice of removal for failure to perform all
the required duties of her position; a July 10, 1998 Arkansas Department of Labor Request for
Wage and Separation Information; a July 22, 1999 Civil Action Memo; an August 18, 2000
memorandum dismissing appellant’s civil action lawsuit; appellant’s February 21, 2002 letter of
resignation; a March 23, 2006 settlement agreement, which related that appellant may take one
day of leave without pay or annual leave at her convenience; an August 31, 2007 statement by the
employing establishment regarding appellant’s allegations that they had erroneously contacted her
physicians; an August 27, 2009 notice of removal for unsatisfactory attendance; a Step B
Grievance Decision dated October 2, 2009; a November 7, 2011 request for leave eligibility packet
under FLMA; copies of Step “A” Grievance Forms signed on October 23, 2007, March 13, 2008
and October 5, 2012; an Equal Employment Opportunity Commission (EEOC) decision granting
the Agency’s motion for decision without hearing as appellant failed to satisfy her burden of
establishing that she was discriminated against under Title VII of the Americans with Disabilities
Act (ADA); compliance with an Agency Final Action dated April 2015; an August 19, 2019
Arkansas Department of Workforce Services notice of Agency Determination regarding
appellant’s May 8, 2019 discharge from her job due to unprofessional conduct; and an August 29,
2019 pre-arbitration agreement which related that while management had just cause to discipline

3

There is no record that appellant filed an OWCP claim for the work-related accident.

3

appellant, due to mitigating circumstances, the discipline was reduced to a 14-day suspension with
7 days in non-paid status.
Also received were check stubs for pay periods 12, 13, 14, 15, 16, 17, and 18 for year 2007;
pay periods 21, 21, 24 and 25, for year 2011; pay periods 7 and 20 for year 2012; pay periods 20
and 23 for year 2013; pay periods 2 and 3 for year 2014; pay periods 1 and 13 for year 2015; and
pay period 16 for year 2018, all of which noted the amount of overtime worked. OWCP also
received copies of appellant’s W2 Forms from 1995, 1997, 1998, 1999, 2001, 2003, 2004, 2005,
2006, 2016, 2017 and 2018; a Form PS50 dated September 6, 2019; and copies of Form CA-7
claims for compensation and CA-7a time analysis forms, for disability from work.
In an undated note, the employing establishment advised appellant that she was “mandated
to work your NS (nonscheduled) day Wednesday, November 22, 2017.” In a note dated
January 10, 2018, appellant was mandated to work her nonscheduled day on Friday,
January 19, 2018. In a note dated February 13, 2018, appellant was mandated to work her
nonscheduled day on Thursday, February 22, 2018.
In June 7, 2016 and December 6, 2017 letters, G.R., Branch President of appellant’s labor
union, indicated that review of appellant’s June 3, 2016 and November 21, 2017 grievance
statement and investigation, respectively, revealed that there was no violation by management on
its selection of appellant to work overtime. G.R. indicated that there were no overtime desired
personnel assigned to the employing establishment. In the December 6, 2017 letter, G.R. further
noted that, per management’s December 1, 2017 statement, appellant did not have any restrictions.
He also noted that appellant’s FMLA paperwork dealt with leave and that a modified assignment
request and approval was needed.
By decision dated April 20, 2020, OWCP denied appellant’s emotional condition claim,
finding that the evidence of record was insufficient to establish that she was injured in the
performance of duty. It accepted as factual that she was mandated to work overtime on one
occasion, November 22, 2017, but found there was no evidence that overtime was mandatory
and/or that an employee could not say no to overtime on some occasions or to working on
scheduled days off. The remainder of her other allegations were denied as not factually
substantiated. This included allegations that she was overworked and required to work seven days
a week from sunrise to 7:00 p.m. while working as a PTF, that the mandated overtime work led to
other on-the-job injuries and unscheduled absences, and that she was being harassed and retaliated
against by the employing establishment.
On July 22, 2020 appellant requested reconsideration. She continued to allege that when
she started work at the employing establishment, she was expected to work anytime management
needed her, especially during the probationary period, which she did. After years of abuse and
harassment of working mandated overtime, appellant developed hypertension, anxiety, and
depression. She alleged that she had no control over the work schedules and that overtime was
dictated by the collective bargaining agreement between the employing establishment and union
officials. Appellant indicated that she attached a copy of an EEOC case to support her allegations
concerning the mandating of overtime. She also attached a copy of the letter rescinding her 2002
resignation. Appellant noted that she has two current cases for harassment and retaliation/hostile
work environment that are currently on appeal.

4

OWCP received: an undated copy of a statement; a May 18, 2002 request for addendum
affidavit and Motion for Witness Approval before the EEOC; a copy of appellant’s February 22,
2002 letter rescinding her 2002 resignation; a duplicate copy of a pay period 26, year 2016 pay
statement; a document entitled “How To Read Your USPS Earnings Statement;” and a copy of an
April 27 2017 letter noting that The Reasonable Accommodation Committee would conduct an
interactive meeting with her on May 3, 2017 to discuss a referral for reasonable accommodation.
Appellant also continued to submit CA-7 forms claiming compensation for disability from work.
By decision dated October 14, 2020, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, 5 including that he or she sustained an injury in the
performance of duty, and that any specific condition or disability for work for which he or she
claims compensation is causally related to that employment injury. 6 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on a
traumatic injury or an occupational disease. 7
To establish an emotional condition in the performance of duty, appellant must submit the
following: (1) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; (2) rationalized medical evidence establishing that he or she has
an emotional condition or psychiatric disorder; and (3) rationalized medical opinion evidence
establishing that the emotional condition is causally related to the identified compensable
employment factors.8
Workers’ compensation law does not apply to each and every injury or illne ss that is
somehow related to an employee’s employment. In the case of Lillian Cutler,9 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA. 10

4

Supra note 1.

5

M.J., Docket No. 20-0953 (issued December 8, 2021); O.G., Docket No. 18-0359 (issued August 7, 2019); J.P.,
59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).
6

M.J., id.; O.G., id.; G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

20 C.F.R. § 10.115; M.K., Docket No. 18-1623 (issued April 10, 2019); Michael E. Smith, 50 ECAB 313 (1999);
Elaine Pendleton, id.
8

E.A., Docket No. 19-0582 (issued April 22, 2021); W.F., Docket No. 18-1526 (issued November 26, 2019); C.M.,
Docket No. 17-1076 (issued November 14, 2018); C.V., Docket No. 18-0580 (issued September 17, 2018);
Kathleen D. Walker, 42 ECAB 603 (1991).
9

28 ECAB 125 (1976).

10

G.M., Docket No. 17-1469 (issued April 2, 2018); Robert W. Johns, 51 ECAB 137 (1999).

5

When disability results from an emotional reaction to regular or specially assigned work duties or
a requirement imposed by the employment, the disability is deemed compensable.11
Allegations alone by a claimant are insufficient to establish a factual basis for an emotional
condition claim. 12 Where the claimant alleges compensable factors of employment, he or she must
substantiate such allegations with probative and reliable evidence. 13 Personal perceptions alone
are insufficient to establish an employment-related emotional condition, and disability is not
covered where it results from such factors as an employee’s fear of a reduction-in-force, or
frustration from not being permitted to work in a particular environment, or to hold a particular
position.14
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than regular or specially assigned
work duties of the employee and are not covered under FECA. 15 Where the evidence demonstrates
that the employing establishment either erred or acted abusively in discharging its administrative
or personnel responsibilities, such action will be considered a compensable employment factor. 16
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact, occur. 17
Mere perceptions of harassment or discrimination are not compensable under FECA. 18 A claimant
must substantiate allegations of harassment or discrimination with probative and reliable
evidence.19 Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred.20
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
11

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, supra note 9.
12

A.C., id.

13

G.R., Docket No. 18-0893 (issued November 21, 2018).

14

A.C., supra note 11.

15

C.V., supra note 8.

16

Id.

17

O.G., supra note 5; K.W., 59 ECAB 271 (2007); Robert Breeden, 57 ECAB 622 (2006).

18

A.E., Docket No. 18-1587 (issued March 13, 2019); M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB
657 (2006).
19

J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 17.

20

T.Y., Docket No. 19-0654 (issued November 5, 2019); G.S., Docket No. 09-0764 (issued December 18,
2009); Ronald K. Jablanski, 56 ECAB 616 (2005); Penelope C. Owens, 54 ECAB 684 (2003).

6

causal relationship and which working conditions are not deemed compensable factors of
employment and may not be considered. 21 If an employee does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. If a
compensable factor of employment is substantiated, OWCP must base its decision on an analysis
of the medical evidence which has been submitted. 22
OWCP’s regulations provide that an employer who has reason to disagree with an aspect
of the claimant’s allegation should submit a statement that specifically describes the factual
argument with which it disagrees and provide evidence or argument to support that position. 23 Its
regulations further provide in certain types of claims, such as a stress claim, a statement from the
employer is imperative to properly develop and adjudicate the claim. 24
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that she sustained stress-related physical and emotional conditions due
to working excessive amounts of overtime, despite being on the “no overtime” list, as the
employing establishment mandated the overtime. She also alleged harassment and discrimination.
In an October 24, 2019 development letter, OWCP informed appellant that the evidence submitted
was insufficient to establish her claim. It advised her of the type of factual and med ical evidence
necessary to establish her claim and attached a questionnaire for her completion. By separate letter
of even date, OWCP requested that the employing establishment address the accuracy of
appellant’s allegations and claims, including whether there were staffing shortages which affected
her workload or extra demands for any reason.
As discussed, OWCP’s regulations provide that an employer who has reason to disagree
with an aspect of the claimant’s allegation should submit a statement that specifically describes
the factual argument with which it disagrees and provide evidence or argument to support that
position.25 Its regulations further provide in certain types of claims, such as a stress claim, a
statement from the employer is imperative to properly develop and adjudicate the claim. 26 While
appellant provided a detailed response to OWCP’s development letter, along with supporting
documentation, no response was received from the employing establishment. OWCP then denied

21

B.S., Docket No. 19-0378 (issued July 10, 2019); Dennis J. Balogh, 52 ECAB 232 (2001).

22

O.G., supra note 5; Norma L. Blank, 43 ECAB 384, 389-90 (1992).

23

20 C.F.R. § 10.117(a); D.L., Docket No. 15-0547 (issued May 2, 2016).

24

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7(a)(2)
(June 2011).
25

Supra notes 23 and 24.

26

Id.; see also S.S., Docket No. 19-1021 (issued April 21, 2021); M.T., Docket No. 18-1104 (issued
October 9, 2019).

7

her emotional condition claim, finding that she had not established a compensable employment
factor.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitleme nt to compensation,
OWCP shares responsibility to see that justice is done. 27 Once OWCP undertakes to develop the
evidence, it has the responsibility to do so in a proper manner, particularly when such evidence is
of the character normally obtained from the employing establishment or other government
source.28
This case must therefore be remanded to OWCP for further development of the evidence
regarding appellant’s emotional condition claim. 29 OWCP shall request that the employing
establishment provide a detailed statement and relevant evidence and/or argument regarding
appellant’s allegations. Following this and other such further development as deemed necessary,
it shall issue a de novo decision regarding whether appellant has established an emotional condition
in the performance of duty.
CONCLUSION
The Board finds that this case is not in posture for decision.

27

L.G., Docket No. 21-0690 (issued December 6, 2021).

28

S.S., id.; R.A., Docket No. 17-1030 (issued April 16, 2018).

29

S.S., id.; V.H., Docket No. 18-0273 (issued July 27, 2018).

8

ORDER
IT IS HEREBY ORDERED THAT the October 14, 2020 decision of Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: February 25, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Petersburg, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Christopher L. Kannady, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0663
Issued: October 24, 2017

Case Submitted on the Record

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

JURISDICTION
On February 1, 2017 appellant, through counsel, filed a timely appeal from a
November 2, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). The last merit decision in this case was issued on April 17, 2006 by the Board. A
decision of the Board is final upon the expiration of 30 days from the date of the decision.2 As
there was no merit decision issued by OWCP within 180 days of the filing of this appeal, the
Board lacks jurisdiction to review the merits of the case pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.

1

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

See 20 C.F.R. § 501.6(d).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. The facts as presented in the prior
decisions are incorporated herein by reference. The relevant facts are as follows.
On September 7, 1989 appellant, then a 43-year-old mail processor clerk, filed a
traumatic injury claim (Form CA-1) alleging that he injured his back on that date while breaking
down mail. OWCP accepted the claim for a low back strain. On February 23, 1990 appellant
filed an occupational disease claim (Form CA-2), which OWCP converted to a notice of
recurrence of disability regarding the September 7, 1989 employment injury. The Office of
Personnel Management (OPM) approved appellant’s application for disability retirement on
October 2, 1990. Appellant retired from the employing establishment effective October 1, 1990.
On July 22, 1991 OWCP accepted appellant’s recurrence claim and expanded acceptance of his
claim to include the condition of herniated nucleus pulposus. On October 2, 1991 appellant filed
an election form opting to receive benefits under FECA effective September 11, 1990. By letter
dated September 27, 1991, he was placed on the periodic rolls for temporary total disability.
The Board issued a decision on April 1, 1998 in which it reversed decisions of OWCP
dated June 11 and September 11, 1997 which terminated appellant’s compensation.3 In a
decision dated July 15, 2003, the Board reversed a February 3, 2003 hearing representative’s
decision affirming a September 6, 2002 decision terminating appellant’s compensation benefits.4
The Board, on April 17, 2006, affirmed an August 31, 2005 decision in which OWCP terminated
appellant’s compensation effective September 4, 2005 as he had refused an offer of suitable
work.5 On May 23, 2008 the Board affirmed a May 3, 2007 OWCP hearing representative’s
decision, finding an overpayment of compensation and denying waiver of the overpayment.6
The Board issued an order dismissing appellant’s appeal on March 24, 2010 as no person
adversely affected by OWCP’s final decision or authorized representative had filed an appeal
with the Board.7 The Board issued a decision on January 5, 2012 affirming a May 11, 2011
decision denying appellant’s request for reconsideration of the August 31, 2005 termination of
compensation benefits.8 The Board found that OWCP had properly found appellant’s request
was untimely filed and that he had failed to demonstrate clear evidence of error. By decision

3

Docket No. 98-0075 (issued April 1, 1998).

4

Docket No. 03-1009 (issued July 15, 2003).

5

Docket No. 06-0073 (issued April 17, 2006).

6

Docket No. 07-2010 (issued May 23, 2008).

7

Docket No. 09-1939 (issued March 24, 2010).

8

Docket No. 11-1388 (issued January 5, 2012).

2

dated December 13, 2012, the Board affirmed OWCP’s March 30, 2012 nonmerit decision.9 The
Board found that OWCP properly found appellant’s request for reconsideration was untimely
filed and that he had failed to demonstrate clear evidence of error in the August 31, 2005
termination of his compensation benefits.
Subsequent to the Board’s decision, appellant resubmitted medical and factual evidence
and submitted new factual evidence. The new factual evidence consisted of questions from
appellant regarding his disability retirement, the employing establishment’s job offer, and the
suitability of the offered position. Appellant also submitted his sworn statement describing his
condition and his inability to perform any type of employment due to his medical conditions.
On May 20, 2013 OWCP received an undated letter from appellant requesting
reconsideration. Appellant also requested reconsideration in a letter dated September 18, 2013.
He argued that he was not a viable candidate for vocational rehabilitation and, thus, OWCP erred
in finding that he refused an offer of suitable work. Appellant further argued that his psychiatrist
concluded that he was unable to return to work and OWCP erred in failing to consider his mental
restrictions.
In support of his claim, appellant submitted a September 17, 2013 report from
Dr. Robert T. Albanese, Jr., a treating Board-certified psychiatrist. Dr. Albanese opined that
appellant was totally disabled due to his combat-related post-traumatic stress disorder. Appellant
related that OWCP concluded that he was capable of working based on an opinion from an
orthopedic surgeon despite medical evidence from a psychiatric physician that he was totally
disabled.
By decision dated November 12, 2013, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of
error. It found Dr. Albanese’s report insufficient to establish clear evidence of error as he found
appellant totally disabled due to a nonaccepted post-traumatic stress disorder and summarized
appellant’s description of his claim. OWCP noted that appellant had failed to submit any
medical evidence regarding his mental status in 2004 or 2005.
On September 16, 2015 OWCP received an April 3, 2014 report from Dr. John W. Ellis,
a treating Board-certified family medical practitioner, who noted that appellant was seen for a
medical evaluation and opinion regarding his September 7, 1989 employment injury. Dr. Ellis
noted appellant’s medical history and that he had refused a job offer in 2005. Physical
examination findings were provided. Dr. Ellis diagnosed muscle back unit tendon sprain, back
deranged discs, and bilateral L-5 and S-1 spinal nerve root impingement, which he attributed to
the accepted September 7, 1989 employment injury. He opined that appellant’s back injury and
post-traumatic stress disorder rendered him totally disabled and unable to perform any type of
gainful employment. Dr. Ellis opined that appellant was entitled to compensation benefits due to
his accepted employment conditions.
In an August 21, 2015 report, Dr. John W. Ellis noted first examining appellant on
April 3, 2014 and he reviewed an August 22, 2014 magnetic resonance imaging (MRI) scan and
9

Docket No. 12-1579 (issued December 13, 2012).

3

September 28, 2014 electromyograph/nerve conduction study (EMG). He explained that
appellant’s diagnoses included lumbar sprain, back deranged discs, left L-4 and L-5
radiculopathy, and bilateral L-5 and S-1 spinal nerve root radiculopathy, which he attributed to
the September 7, 1989 employment injury. Dr. Ellis opined that appellant’s accepted
September 7, 1989 employment injury and repetitive work duties aggravated his prior back
injury.
In a letter dated September 16, 2015 and received by OWCP that same day, counsel
provided a statement of accepted facts in support of appellant’s claim for compensation. He
argued that Dr. Ellis’ reports were substantial evidence warranting reopening of appellant’s
claim for a merit review. On September 23, 2016 OWCP received a September 19, 2016 letter
from counsel in which he related that he was following up on his request of September 16, 2015
that appellant’s claim be reopened.
By decision dated November 2, 2016, OWCP denied appellant’s request for
reconsideration finding that the September 23, 2016 request was untimely filed and failed to
demonstrate clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.10 It will not review a decision denying or terminating
a benefit unless the application for review is filed within one year of the date of that decision.11
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that OWCP’s final merit decision was in error.12
Its procedures state that OWCP will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth under section 10.607 of OWCP regulations,13 if the
claimant’s application for review shows clear evidence of error on the part of OWCP.14 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.15
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.16 The evidence must be positive, precise, and explicit and must
10

See J.W., 59 ECAB 507 (2008); Mary A. Ceglia, 55 ECAB 626 (2004).

11

20 C.F.R. § 10.607; see B.W., Docket No. 10-0323 (issued September 2, 2010); A.F., 59 ECAB 714 (2008);
Gladys Mercado, 52 ECAB 255 (2001).
12

D.G., 59 ECAB 455 (2008); Cresenciano Martinez, 51 ECAB 322 (2000).

13

20 C.F.R. § 10.607.

14

See M.L., Docket No. 09-0956 (issued April 15, 2010); Robert G. Burns, 57 ECAB 657 (2006).

15

Andrew Fullman, 57 ECAB 574 (2006); Alberta Dukes, 56 ECAB 247 (2005).

16

F.R., Docket No. 09-0575 (issued January 4, 2010); S.D., 58 ECAB 713 (2007); Joseph R. Santos, 57 ECAB
554 (2006).

4

manifest on its face that OWCP committed an error. Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.17
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence, such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.18 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.19
ANALYSIS
A right to reconsideration within one year also accompanies any subsequent merit
decision on the issues.20 Appellant, through counsel, requested reconsideration on September 16,
2015 and requested follow up in a September 19, 2016 letter, which OWCP received on
September 23, 2016.
The Board notes that OWCP did not acknowledge appellant’s
September 16, 2015 reconsideration request. However, as both requests were received more than
one year after the last merit decision, dated April 17, 2006, they were both untimely filed.
Consequently, appellant must demonstrate clear evidence of error by OWCP in the August 31,
2005 OWCP decision which terminated his entitlement to wage-loss and schedule award
compensation benefits for failure to accept an offer of suitable work, pursuant to 5 U.S.C.
§ 8106(c)(2).21
The Board finds that the arguments and evidence submitted by appellant in support of his
requests for reconsideration fail to raise a substantial question as to the correctness of OWCP’s
decision denying modification of its termination decision. The issue is whether appellant has
demonstrated clear evidence of error in OWCP’s termination of his wage-loss and schedule
award compensation for refusing an offer of suitable employment.
17

J.S., Docket No. 10-0385 (issued September 15, 2010); D.D., 58 ECAB 206 (2006); Robert G. Burns, supra
note 14.
18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5(a) (February 2016);
James Mirra, 56 ECAB 738 (2005).
19

See M.L., supra note 14; G.H., 58 ECAB 183 (2006); Jack D. Johnson, 57 ECAB 593 (2006).

20

Robert F. Stone, 57 ECAB 393 (2005).

21

20 C.F.R. § 10.607(a); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005).

5

In his request for reconsideration and on appeal, appellant, through counsel, contends that
OWCP erred in its August 31, 2005 decision. He asserts that Dr. Ellis’ report is sufficient to
establish that appellant’s claim was wrongly decided and creates a new conflict with the report of
Dr. Howard L. Schuele, a previous impartial medical examiner and Board-certified orthopedic
surgeon, regarding appellant’s ability to perform the offered job. The record also contains a
September 17, 2013 report from Dr. Albanese, Jr. opining that appellant was unable to work due
to his post-traumatic stress disorder. While the reports of Dr. Albanese, Jr. and Dr. Ellis support
appellant’s disability for work, they do not demonstrate clear evidence of error as the opinions of
these physicians finding that he could not work did not specifically address whether he could
perform the duties of the offered position as of August 31, 2005.22 As noted, clear evidence of
error is intended to represent a difficult standard. The submission of a detailed, well-rationalized
medical report which, if submitted before the merit decision was issued, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error.23 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP.24
To demonstrate clear evidence of error, it is not sufficient merely to establish that the
evidence could be construed so as to produce a contrary conclusion. The term clear evidence of
error is intended to represent a difficult standard. None of the evidence submitted manifests on
its face that OWCP committed an error in terminating appellant’s compensation for refusal of
suitable work. Appellant has not otherwise submitted evidence of sufficient probative value to
raise a substantial question as to the correctness of OWCP’s August 31, 2005 decision. Thus, the
evidence is insufficient to demonstrate clear evidence of error.
On appeal counsel argues that the reports of Dr. Ellis constitute substantial evidence
warranting reviewing the claim on its merits. He also asserts there is now a conflict in the
medical opinion evidence between Dr. Ellis and Dr. Schuele regarding appellant’s work ability.
As discussed above, the Board finds the report from Dr. Ellis insufficient to demonstrate clear
evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

22

See F.R., Docket No. 09-0575 (issued January 4, 2010) (evidence that is not germane to the issue on which the
claim was denied is insufficient to demonstrate clear evidence of error).
23

Supra note 18.

24

Supra note 19.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 2, 2016 is affirmed.
Issued: October 24, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
_______________________________________
B.A., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVY YARD,
Philadelphia, PA, Employer
_______________________________________

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

Docket No. 06-2048
Issued: January 10, 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 September 5, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated June 1, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he is
entitled to a schedule award for his hearing loss.
FACTUAL HISTORY
On February 1, 2006 appellant, then a 67-year-old deputy nuclear production manager,
filed an occupational disease claim alleging that he sustained hearing loss due to exposure to
noise at work beginning in January 1980.1 He first became aware of his condition and realized
that it was caused or aggravated by his employment in January 1980. Appellant retired on
1

The Board notes that appellant was employed at the Charleston Naval Shipyard, Charleston, SC.

August 3, 1995. Accompanying the claim were his work history, sources of noise exposure and
annual audiograms obtained through an employing establishment hearing conservation program.2
On February 1, 2006 appellant filed a claim for a schedule award.
On May 3, 2006 the Office referred appellant, together with a statement of accepted facts
to Dr. Robert Marwick, a Board-certified otolaryngologist, for a second opinion evaluation
regarding the nature, extent and relationship of appellant’s hearing loss to his federal
employment.
In a May 18, 2006 report, Dr. Marwick reviewed a baseline audiogram from
November 24, 1965 which he advised revealed normal hearing at all frequencies bilaterally. He
noted that existing audiograms from May 19, 1994 revealed standard threshold shift in both ears
and in 1994 exceeded the anticipated presbycusis3 curb for a 55 year old. Dr. Marwick
determined that the occupational noise levels were of sufficient intensity to have caused the
bilateral decrease in pure-tone sensitivities. He diagnosed moderate to severe bilateral high
frequency sensorineural hearing loss which was due to appellant’s noise exposure in the course
of his federal employment. Dr. Marwick indicated that the pure-tone configuration in 1994 was
consistent with long-term noise-induced hearing loss and advised that appellant should have
annual hearing evaluations, use binaural amplification, avoid high levels of noise and use hearing
protection. He attached a copy of the May 18, 2006 audiogram and a certificate of acoustic
impedance/admittance meter calibration.4
On May 30, 2006 the Office medical adviser reviewed the otologic and audiologic testing
performed on appellant by Dr. Marwick and applied the Office’s standardized procedures to this
evaluation. The Office medical adviser determined that appellant did not have a ratable hearing
loss under the relevant standards of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (5th ed. 2001) (A.M.A., Guides).
By decision dated June 1, 2006, the Office accepted appellant’s claim for hearing loss
due to his employment-related hearing exposure. However, it determined that appellant’s
hearing loss was not severe enough to be considered ratable and determined that appellant was
not entitled to schedule award compensation for hearing loss. The Office further determined that
the medical evidence established that appellant would not benefit from hearing aids and denied
his claim for further medical benefits.

2

The Board has held that a program of annual audiometric examination conducted by an employing
establishment in conjunction with an employee testing program is sufficient to constructively establish actual
knowledge of a hearing loss such as to put the immediate supervisor on notice of an on-the-job injury. See James A.
Sheppard, 55 ECAB 515 (2004).
3

Defined as “A progressive, bilaterally, symmetric perceptive hearing loss occurring with age.” DORLAND’S
ILLUSTRATED Medical Dictionary (30th ed. 2003).
4

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 20, 10, 10 and 40 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, 10, 10 and 55 respectively.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulation6 sets 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.7
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.8 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.9 Then, the fence of 25 decibels is deducted because,
as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability
to hear everyday speech under everyday conditions.10 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.11 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.12 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.13
ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award for his hearing loss in accordance with the fifth edition of the A.M.A., Guides.
On May 30, 2006 the Office medical adviser reviewed the otologic and audiologic testing
performed on appellant by Dr. Marwick, a Board-certified otolaryngologist, and properly applied
the Office’s standardized procedures to this evaluation. Testing for the right ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 20, 10, 10 and 40
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.

8

A.M.A., Guides at 226-51 (5th ed. 2001).

9

Id.

10

Id.

11

Id.

12

Id.

13

Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No. 011570 (issued August 13, 2002).

3

respectively. These decibel losses were totaled at 80 decibels and were divided by 4 to obtain
the average hearing loss of 20 decibels. This average loss was then reduced by 25 decibels (25
decibels being discounted as discussed above) to equal a negative figure. Testing for the left ear
at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 15, 10, 10
and 55 respectively. These decibel losses total 90 decibels and when divided by 4 result in an
average hearing loss of 22.5 decibels. This average loss when reduced by 25 decibels (25
decibels being discounted as discussed above) equals a negative figure. The Office medical
adviser properly concluded that the calculations showed that appellant did not have a ratable
hearing loss under the relevant standards of the A.M.A., Guides.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he is
entitled to a schedule award for hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 1, 2006 is affirmed.
Issued: January 10, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, SPACE
& MISSILE SYSTEMS CENTER, LOS
ANGELES AIR FORCE BASE, El Segundo, CA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-1247
Issued: February 12, 2016

Case Submitted on the Record

ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

On January 7, 2015 the Board issued a decision in the above-entitled matter, which
affirmed the November 14, 2013 and April 17, 2014 decisions of the Office of Workers’
Compensation Programs (OWCP). However, the Clerk of the Board inadvertently mailed the
January 7, 2015 decision to an incorrect address.
Pursuant to 20 C.F.R. § 501.6(f), the Board “will send its decisions and orders to the
[a]ppellant … at the time of issuance.“ In Bertha Keeble, the Board noted that a decision is
issued when it is filed and mailed, and it is presumed that this was accomplished on the issued
date appearing on the decision.1 In Keeble, the decision was mailed to an incorrect address, and
therefore, the Board found that it had not properly issued the decision. Consequently, the Board
ordered that the decision be correctly issued. In the current case, the Board mailed its January 7,
2015 decision to an incorrect address, and thus, the decision was not issued in accordance with
20 C.F.R. § 501.6(f). As such, the decision in the above-entitled case shall be reissued effective
this date.

1

45 ECAB 355, 356 (1994) (citing Ralph W. Moody, 44 ECAB 375 (1993)).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of issuance....“2
IT IS HEREBY ORDERED THAT the Board’s January 7, 2015 decision is reissued.3
Issued: February 12, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

20 C.F.R. § 501.6(d) (2014).

3

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015 and did not participate in the preparation of this order.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
TENNESSE VALLEY AUTHORITY,
CONSTRUCTION SERVICES BRANCH,
CUMBERLAND STEAM PLANT,
Cumberland City, TN, Employer
__________________________________________

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

Docket No. 09-794
Issued: December 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 27, 2009 appellant filed a timely appeal of the June 24 and November 21,
2008 merit decisions of the Office of Workers’ Compensation Programs terminating his
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss and
medical benefits effective January 15, 2008 on the grounds that he no longer had any residuals or
disability causally related to his accepted employment-related injuries; and (2) whether he had
any continuing employment-related residuals or disability after January 15, 2008.

FACTUAL HISTORY
This case has previously been before the Board. In an October 12, 2001 decision, the
Board reversed the Office’s October 18, 1999 and May 15 and June 27, 2000 decisions,
terminating compensation benefits.1 It found that the Office improperly based its termination
decision on the medical opinion of Dr. William H. Ledbetter, a Board-certified orthopedic
surgeon and Office referral physician. The Board found that the Office did not meet its burden
of proof to terminate compensation.2
In an August 3, 2004 medical report, Dr. David S. Jones, an attending Board-certified
orthopedic surgeon, found that appellant sustained lumbago. He opined that appellant continued
to be disabled for work due to residuals of his accepted employment-related injuries.
On May 16, 2007 the Office referred appellant, together with the case record and a
statement of accepted facts, to Dr. Richard T. Sheridan, a Board-certified orthopedic surgeon, for
a second opinion medical examination. In a July 18, 2007 report, Dr. Sheridan diagnosed
resolved sprain of the lumbosacral joint ligament and contusion of the abdominal wall. He stated
that appellant had no signs of ongoing pathology related to his accepted employment injuries.
Dr. Sheridan attributed his prolonged disability to diabetes mellitus. His subjective complaints
of pain were not supported by objective clinical findings.
On August 22, 2007 the Office found a conflict in medical opinion between Dr. Jones
and Dr. Sheridan as to whether appellant had any continuing residuals or disability causally
related to his accepted July 15, 1982 employment injuries. By letter dated August 28, 2007, it
referred him, together with a statement of accepted facts and the case record, to Dr. Robert M.
Dimick, a Board-certified orthopedic surgeon, for an impartial medical examination.
In a November 2, 2007 report, Dr. Dimick reviewed the history of appellant’s July 15,
1982 employment injuries, medical treatment and family and social background. He provided
findings on examination of appellant. Dr. Dimick opined that appellant’s July 15, 1982
employment-related abdominal contusion and lumbosacral strain had resolved. He diagnosed S1
spondylitic disc protrusion, annular tear and right foraminal protrusion based on an August 21,
2006 magnetic resonance imaging (MRI) scan of the lumbar spine. Dr. Dimick also diagnosed
diabetic peripheral neuropathy, right peroneal neuropathy and tobacco abuse. Appellant had a
personality disorder with moderate-to-multiple inorganic inconsistencies which suggested
secondary gain and learned sick role. Dr. Dimick stated that there were no objective findings to
support appellant’s subjective complaints of pain and dysfunction of the lower back, pelvis and
right hip and lower extremity. He had no impairment based on the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,Guides) (5th ed. 2001).
No further medical treatment or evaluation arising out of the accepted employment injuries was
required. Dr. Dimick opined that appellant could perform his regular work duties with no
1

Docket No. 01-87 (issued October 12, 2001).

2

On July 23, 1982 appellant, then a 24-year-old painter, filed a traumatic injury claim alleging that on July 15,
1982 he experienced back pain and strained his left hand when he slipped while painting a stairwell. The Office
accepted his claim for a contusion of the lower abdominal wall and lumbar strain.

2

restrictions. He noted that his psychological challenges caused him to steadfastly resist
vocational rehabilitation and to believe that he was totally disabled. Dr. Dimick concluded that
the diagnosed conditions were not causally related to appellant’s accepted employment-related
conditions.
By letter dated December 12, 2007, the Office issued a notice of proposed termination of
compensation benefits based on Dr. Dimick’s November 2, 2007 medical opinion. Appellant
was afforded 30 days to submit additional evidence. In an undated letter received by the Office
on January 7, 2008, he disagreed with the proposed action. Appellant requested additional time
to see an attending physician.
By decision dated January 15, 2008, the Office terminated appellant’s compensation
benefits effective that date. It noted that he had been provided sufficient opportunities to submit
medical evidence from an attending physician to support his continuing disability.
On February 10, 2008 appellant requested a review of the written record by an Office
hearing representative regarding the January 15, 2008 decision. He submitted an October 16,
2007 report from Dr. Kevin S. McKechnie, a Board-certified internist, who stated that appellant
did not have diabetic neuropathy. Appellant’s right foot and lower leg paresthesias were not
attributable to diabetic neuropathy. Dr. McKechnie stated that the condition was based on
appellant’s history and low back pain problems.
In a treatment note and report dated December 9, 2004, Dr. Jones stated that appellant’s
lumbago had not resolved and that he was totally disabled for work.
In a February 5, 2008 report, Dr. J. Gregory Kyser, a Board-certified psychiatrist, found
no diagnosis on Axis 1 and 2. He referred to appellant’s past medical history as the diagnosis on
Axis 3. Dr. Kyser’s Axis 4 diagnosis was moderate. Appellant had a global functioning
assessment (GAF) score of 55 on Axis 5. Dr. Kyser found no evidence of active mental illness
or malingering based on his examination. He concluded that appellant was not entitled to
disability compensation.
By decision dated June 24, 2008, an Office hearing representative affirmed the
January 15, 2008 decision. She found that the evidence submitted by appellant was insufficient
to outweigh Dr. Dimick’s impartial medical opinion.
In a September 1, 2008 letter, appellant requested reconsideration. In a July 16, 2008
report, Dr. McKechnie stated that appellant had Type 2 diabetes as opposed to diabetic
neuropathy. He stated that appellant had right leg and foot symptoms and normal filament
sensation. Appellant did not have the typical burning and stinging sensation associated with
diabetic neuropathy. Dr. McKechnie opined that he suffered from chronic low back and
unilateral leg pain and disc disease.
In a July 23, 2008 report, Dr. Robert H. Boyce, a Board-certified orthopedic surgeon,
reviewed the history of appellant’s employment-related injuries, medical treatment and family
and social background. He reported normal findings on physical examination with limited range
of motion of the back, positive symptoms related to the right leg and pain in the lumbosacral
region radiating into the right leg. On x-ray examination of the lumbar spine, Dr. Boyce found
3

no sign of instability. There was only mild-to-moderate degenerative disc space narrowing at
L4-5 and L5-S1. Dr. Boyce reviewed a May 13, 2002 MRI scan which demonstrated a mild left
lateral spondylotic disc bulge with no appearance of spinal stenosis or herniated disc material.
There was no evidence confirming radiculitis. Dr. Boyce opined that appellant had reached
permanent and stationary status regarding his employment-related injuries.
Surgical
intervention, invasive treatment and or advance imaging studies would not benefit him.
Dr. Boyce further opined that appellant was disabled for work.
By decision dated November 21, 2008, the Office denied modification of the January 15,
2008 decision. It found that the evidence submitted by appellant was insufficient to overcome
Dr. Dimick’s impartial medical opinion.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 After it has determined that an employee has disability
causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, the Office must establish that the claimant no
longer has residuals of an employment-related condition, which requires further medical
treatment.6
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.7
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits. The Office properly found a conflict in medical opinion arose between
Dr. Jones, an attending physician, and Dr. Sheridan, an Office referral physician, regarding
whether appellant had any continuing residuals or disability causally related to his accepted
July 15, 1982 employment injuries. Dr. Jones opined that appellant continued to suffer from
3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
4

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

5

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); Larry Warner, 43 ECAB 1027 (1992).

6

E.J., 59 ECAB ___ (Docket No. 08-1350, issued September 8, 2008).

7

Gloria J. Godfrey, 52 ECAB 486 (2001).

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residuals and total disability due to the accepted employment injuries. Dr. Sheridan opined that
his January 15, 1982 employment-related contusion of the lower abdominal wall and lumbar
strain had resolved.
The Office referred appellant to Dr. Dimick as the impartial medical specialist who
reviewed the entire record and statement of accepted facts and performed a thorough
examination of appellant. In his November 2, 2007 report, Dr. Dimick opined that appellant had
no residuals or disability causally related to his accepted July 15, 1982 contusion of the lower
abdominal wall and lumbar strain. He further opined that appellant could perform his regular
work duties with no restrictions and appellant did not require further medical treatment or
evaluation arising out of the accepted employment injuries. Dr. Dimick stated that there were no
objective findings to support his subjective complaints of pain and dysfunction of the lower
back, pelvis and right hip and lower extremity. His examination revealed essentially normal
findings. Dr. Dimick found that appellant sustained nonwork-related S1 spondylitic disc
protrusion, annular tear and right foraminal protrusion of the lumbar spine, diabetic peripheral
neuropathy, right peroneal neuropathy, tobacco abuse and personality disorder with moderate to
multiple inorganic inconsistencies which suggested secondary gain and learned sick role. He
also sustained zero percent impairment based on the A.M.A., Guides. Dr. Dimick stated that
appellant’s psychological challenges caused him to steadfastly resist vocational rehabilitation
and to believe that he was totally disabled.
The Board finds that Dr. Dimick’s opinion is based on a proper factual and medical
background and is entitled to special weight afforded an impartial medical specialist. Based on
Dr. Dimick’s review of the case record, essentially normal findings on physical examination, he
found that appellant’s accepted employment-related contusion of the lower abdominal wall and
lumbar strain had resolved and that appellant was able to return to full-duty work. Thus, the
Office properly found that appellant had no residuals or disability due to the accepted
employment injuries and terminated his compensation benefits effective January 15, 2008.
Appellant did not submit any rationalized medical evidence to overcome the weight of
Dr. Dimick’s opinion or to create a new conflict. Dr. McKechnie’s October 16, 2007 report
found that appellant’s right foot and lower leg paresthesias was not attributable to diabetic
neuropathy. Rather, the diagnosed condition was based on his history and low back pain
problems. The Office did not accept appellant’s claim for paresthesias of the right foot and
lower leg and Dr. McKechnie’s report failed to provide a rationalized opinion explaining how
the diagnosed condition was causally related to appellant’s accepted employment injuries.8
Dr. Kyser’s February 5, 2008 report found no diagnosis on Axis 1 and 2. He referred to
appellant’s past medical history for the Axis 3 diagnosis. Appellant’s Axis 4 diagnosis was
moderate and his Axis 5 diagnosis was a GAF score of 55. Dr. Kyser opined that appellant was
not entitled to disability compensation as he found no evidence of active mental illness or
malingering. He did not provide a medical opinion addressing whether appellant had any

8

For conditions not accepted by the Office as being employment related, it is the employee’s burden to provide
rationalized medical evidence sufficient to establish causal relation, not the Office’s burden to disprove such
relationship. Alice J. Tysinger, 51 ECAB 638 (2000).

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continuing residuals or disability causally related to his accepted July 15, 1982 employment
injuries.
Dr. Jones’s December 9, 2004 treatment note and report found that appellant’s lumbago
had not resolved and that he was totally disabled for work, but the accepted condition did not
include lumbago. Reports that do not provide a rationalized medical opinion on the causal
relationship of the condition are insufficient to create another conflict or overcome the special
weight accorded that specialist’s without probative value.9
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to him to establish that he had any disability causally related to his accepted
injury.10 To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence, based on a complete factual and medical background, supporting such a causal
relationship.11 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.12 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 supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.13
ANALYSIS -- ISSUE 2
The Board finds that appellant did not establish that he had any continuing employmentrelated residuals or total disability after January 15, 2008. Dr. Boyce’s July 23, 2008 report
provided essentially normal findings on physical examination with limited range of motion of the
back, positive symptoms related to the right leg and pain in the lumbosacral region radiating into
the right leg. On x-ray examination of the lumbar spine, he found no sign of instability. There
was only mild-to-moderate degenerative disc space narrowing at L4-5 and L5-S1. Dr. Boyce
stated that a May 13, 2002 MRI scan demonstrated a mild left lateral spondylotic disc bulge with
no appearance of spinal stenosis or herniated disc material. There was no evidence confirming
radiculitis. Dr. Boyce opined that appellant was disabled for work. He stated that appellant had
reached permanent and stationary status regarding his employment-related injuries, noting that
further treatment and objective testing would not benefit him. The Office did not accept
9

Alice J. Tysinger, 51 ECAB 638, 646 (2000).

10

See Manuel Gill, 52 ECAB 282 (2001).

11

Id.

12

Elizabeth Stanislav, 49 ECAB 540 (1998).

13

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

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appellant’s claim for degenerative disc disease or a disc bulge and Dr. Boyce’s report failed to
provide a rationalized opinion which establishes that the diagnosed conditions were causally
related to appellant’s accepted employment injuries.14
The Board finds that appellant did not submit the sufficient rationalized medical evidence
to substantiate that the claimed continuing residuals or disability on or after January 15, 2008
were causally related to his employment-related contusion of the lower abdominal wall and
lumbar strain.
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective January 15, 2008 on the grounds that he no longer had any
residuals or disability causally related to his accepted employment-related injury. The Board
further finds that appellant failed to establish that he had any continuing employment-related
residuals or disability after January 15, 2008.
ORDER
IT IS HEREBY ORDERED THAT the November 21 and June 24, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 9, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

See Alice J. Tysinger, supra note 9.

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