United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.L., Appellant
and
SMALL BUSINESS ADMINISTRATION,
REGIONAL OFFICE, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 18-1051
Issued: March 24, 2021

Case Submitted on the Record

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

JURISDICTION
On April 26, 2018 appellant filed a timely appeal from November 30, 2017 and January 26,
2018 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 this case.2
ISSUES
The issues are: (1) whether OWCP properly suspended appellant’s compensation benefits
for failure to submit a Form CA-1032, as requested; (2) whether OWCP properly determined that
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 26, 2018 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.

appellant received an overpayment of compensation in the amount of $13,926.71 because
postretirement basic life insurance (PRBLI) premiums were not properly deducted from his
compensation benefits for the period November 25, 1995 through January 7, 2017, for which he
was without fault; (3) whether OWCP properly denied appellant’s request for waiver of recovery
of the overpayment; and (4) whether OWCP properly required recovery of the overpayment by
deducting $200.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On February 24, 1988 appellant, then a 36-year-old industrial specialist, ﬁled a traumatic
injury claim (Form CA-1) alleging that he was injured on February 23, 1988 when attempting to
subdue an intruder in the workplace while in the performance of duty. OWCP accepted that he
sustained a contusion and sprain of the right ﬁnger, laceration of the right thigh, post-traumatic
stress disorder, and major depression with psychosis. Appellant stopped work shortly after his
February 23, 1988 injury and returned to full-duty work on April 13, 1992. On October 23, 1992
the employing establishment reduced the hours of his job as an industrial specialist to 32 hours per
week per an attending physician’s recommendation. By decision dated February 17, 1993, OWCP
determined that appellant’s part-time work as an industrial specialist fairly and reasonably
represented his wage-earning capacity.
On October 12, 2016 OWCP received documentation from the Office of Personnel
Management (OPM) which established that on June 15, 1995 appellant elected PRBLI coverage
at a 50 percent reduction. Those premium deductions commenced on November 25, 1995.3
On December 15, 2016 appellant notified OWCP by telephone that his life insurance
premiums had not been deducted from his FECA compensation.
During a January 5, 2017 telephone call, an OWCP official advised appellant that PRBLI
premiums would be deducted from his FECA compensation commencing January 8, 2017. The
official informed appellant that there would be an overpayment of compensation.4 OWCP
subsequently adjusted appellant’s FECA compensation to reinstate his PRBLI deductions
commencing January 8, 2017.
By decision dated June 15, 2017, OWCP advised appellant of its preliminary determination
that he received an overpayment of compensation in the amount of $13,926.71 for the period
November 25, 1995 through January 7, 2017 because PRBLI premiums were not properly
deducted from his compensation benefits for this period. It also made a preliminary determination
that he was without fault in the creation of the overpayment. OWCP advised appellant of his right
to request a telephone conference, a final decision based on the written evidence, or a

3

On September 20, 2016 appellant changed his PRBLI coverage election to Option B (3x -- no reduction). The
change was to commence on November 1, 2016.
4

On May 15, 2017 OWCP added computerized overpayment calculation documents to the case record.

2

prerecoupment hearing, and requested that he complete and submit an overpayment recovery
questionnaire form (Form OWCP-20) regarding his finances. It afforded him 30 days to respond.5
On June 16, 2017 appellant requested waiver of recovery of the overpayment and
completed a Form OWCP-20.
On October 2, 2017 OWCP informed appellant that federal regulations required him to
execute an affidavit relative to any earnings or employment during the previous year and that a
Form CA-1032 was enclosed for that purpose. It notified him that he must fully answer all
questions on the enclosed Form CA-1032 and return it within 30 days or his benefits would be
suspended. The letter was sent to appellant’s address of record. No response was received.
By decision dated November 30, 2017, OWCP suspended appellant’s compensation
benefits, effective January 7, 2018, due to his failure to submit the Form CA-1032, as requested.
It noted that, if he completed and returned an enclosed copy of the Form CA-1032, his
compensation benefits would be restored retroactively to the date they were suspended.
By decision dated January 26, 2018, OWCP finalized its June 15, 2017 preliminary
overpayment determination that appellant had received an overpayment of compensation in the
amount of $13,926.71 because PRBLI premiums were not properly deducted from his
compensation benefits for the period November 25, 1995 through January 7, 2017. It further
found that he was without fault in the creation of the overpayment, but denied waiver of recovery
of the overpayment because his monthly income exceeded his monthly expenses by more than
$50.00. OWCP required recovery of the overpayment by deducting $200.00 from appellant’s
continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the manner
and at the times the Secretary specifies.6
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work which the employee has performed for the prior 15 months.7 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that

5

On October 19, 2017 OWCP also made a preliminary determination that appellant received an overpayment of
compensation in the amount of $577.07 due to nondeduction of premiums for Option B (3x -- no reduction) life
insurance for the period October 16, 2016 through January 7, 2017. Appellant repaid the $577.07 to OWCP on
November 15, 2017. Therefore, that overpayment was not addressed in the January 26, 2018 final overpayment
determination and that matter is not currently before the Board.
6

5 U.S.C. § 8106(b).

7

20 C.F.R. § 10.528.

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time, OWCP will reinstate compensation retroactive to the date of suspension if the employee
remains entitled to compensation.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to suspend appellant’s
compensation for failing to submit a Form CA-1032, as requested.
On October 2, 2017 OWCP provided appellant with a Form CA-1032 and notified him that
federal regulations required him to complete the form and answer all questions concerning his
employment or earnings. It properly notified him that, if he did not completely answer all
questions and return the statement within 30 days, his benefits would be suspended. The record
reflects that OWCP’s letter was properly sent to appellant’s address of record and there is no
indication that it was returned as undeliverable.9
The record shows no response prior to the November 30, 2017 OWCP decision suspending
appellant’s benefits. Thus, the Board finds that OWCP properly suspended appellant’s
compensation benefits, effective January 7, 2018, pursuant to 20 C.F.R. § 10.528.10
LEGAL PRECEDENT -- ISSUE 2
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in basic life insurance (BLI) and one or more forms optional life insurance (OLI).11
The coverage for BLI is effective unless waived,12 and premiums for BLI coverage are withheld
from the employee’s pay.13 Upon retirement or upon separation from the employing establishment
or being placed on FECA periodic compensation rolls, an employee may choose to continue BLI
and OLI coverage, in which case the schedule of deductions made will be used to withhold
premiums from his or her annuity or compensation payments.14 BLI coverage shall be continued
without cost to an employee who retired or began receiving compensation on or before

8

Id.; see also id. at § 10.525.

9

C.C., Docket No. 17-0043 (issued June 15, 2018); A.H., Docket No. 15-0241 (issued April 3, 2015) (Under the
mailbox rule, a document mailed in the ordinary course of the sender’s business practices to the addressee’s last known
address is presumed to be received by the addressee).
10

See M.W., Docket No. 15-0507 (issued June 18, 2015); see also James A. Igo, 49 ECAB 189 (1997).

11

Supra note 1 at § 8702(a).

12

Id. at § 8702(b).

13

Id. at § 8707.

14

Id. at § 8706.

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December 31, 1989,15 however, the employee is responsible for payment of premiums for OLI
coverage which is accomplished by authorizing withholdings from his or her compensation.16
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by 2 percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by 1 percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).17
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remains in effect.18 Any employee who
does not file a Life Insurance Election with his or her employing office, in a manner designated by
OPM, specifically electing any type of optional insurance, is considered to have waived it and does
not have that type of optional insurance.19 When an under-withholding of life insurance premiums
occurs, the entire amount is deemed an overpayment of compensation because OWCP must pay
the full premium to OPM upon discovery of the error.20
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of duty.21 When
an overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which the individual is entitled.22
OWCP’s procedures provide that, once an overpayment is identified, it is responsible for
determining whether the claimant was with fault or without fault, issuing a preliminary finding,
15

Id. at § 8707(b)(2).

16
Id. at § 8706(b)(3)(B). See B.B., Docket No. 17-1733 (issued March 26, 2018); S.B., Docket No. 16-1795 (issued
March 2, 2017).
17

See C.A., Docket No. 18-1284 (issued April 15, 2019); James J. Conway, Docket No. 04-2047 (issued
May 20, 2005).
18

5 C.F.R. § 870.504(a)(1).

19

Id. at § 870.504(b).

20

Supra note 1 at § 8707(d); see also B.B., supra note 16.

21

Id. at § 8102(a).

22

Id. at § 8129(a).

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and unless a hearing is requested, OWCP is responsible for issuing a final decision.23 These
procedures note that, if the claimant is determined to be without fault, a preliminary overpayment
determination must be released along with a Form OWCP-20 within 30 days of the date the
overpayment is identified. Both the reason that the overpayment occurred and the reason for the
finding of without fault must be clearly stated. A preliminary overpayment determination informs
the claimant of the right to submit evidence and the right to a prerecoupment hearing on the issues
of: (a) fact and amount of overpayment; and (b) waiver of recovery of the overpayment. Along
with the preliminary overpayment determination, OWCP should provide a clearly written
statement explaining how the overpayment was created.24
ANALYSIS -- ISSUE 2
As noted, when an under-withholding of life insurance premiums occurs, the entire amount
is deemed an overpayment of compensation because OWCP must pay the full premium to OPM
upon discovery of the error.25 In telephone call January 5, 2017, an OWCP official advised
appellant that PRBLI premiums would be deducted from his FECA compensation commencing
January 8, 2017. As such, an overpayment of compensation was identified in connection with
OWCP’s failure to deduct life insurance premiums from appellant’s compensation benefits. It was
not until June 15, 2017, however, that OWCP issued a preliminary determination, finding an
overpayment in the amount of $13,926.71 had been created for the period November 25, 1995
through January 7, 2017. By decision dated January 26, 2018, OWCP finalized the preliminary
overpayment determination. It found that appellant was without fault in the creation of the
$13,926.71 overpayment, but denied waiver of recovery of the overpayment. OWCP required
recovery of the overpayment by deducting $200.00 from appellant’s continuing compensation
payments every 28 days.
The Board finds that OWCP failed to follow its procedures in issuing the January 26, 2018
overpayment decision. As noted, OWCP’s procedures provided that a preliminary overpayment
determination must be released along with a Form OWCP-20 within 30 days of the date the
overpayment is identified.26 In this case, it first identified the overpayment of compensation on
January 5, 2017, but it did not, however, issue a preliminary notice regarding the overpayment
until June 15, 2017, more than 30 days later.
The Board thus finds that OWCP failed to follow its established procedures in determining
that appellant received an overpayment of compensation in the amount of $13,926.71 for the
period November 25, 1995 through January 7, 2017.27

23

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a)(2) (May 2004).
24

Id.; see also L.P., Docket No. 18-0095 (issued March 12, 2020).

25

See supra note 16.

26

See supra note 20.

27

In light of the Board’s disposition of Issue 2, Issues 3 and 4 are rendered moot.

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CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits for
failure to submit a Form CA-1032, as requested. The Board also finds that OWCP improperly
determined that he received an overpayment of compensation in the amount of $13,926.71 for the
period November 25, 1995 through January 7, 2017.
ORDER
IT IS HEREBY ORDERED THAT the November 30, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
IT IS FURTHER ORDERED THAT the January 26, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 24, 2021
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Amityville, NY, Employer
__________________________________________

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

Docket No. 11-919
Issued: December 19, 2011

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 March 2, 2011 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs (OWCP) dated February 2, 2011. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a neck injury on April 29,
2010 in the performance of duty at the time, place and in the manner alleged.
FACTUAL HISTORY
On May 3, 2010 appellant, a 57-year-old mail clerk, filed a Form CA-1 claim for
traumatic injury alleging that she experienced pain in her neck on April 29, 2010 while retrieving
parcels of mail from a bulk mail container. The employing establishment controverted the claim.
1

5 U.S.C. § 8101 et seq.

Appellant’s supervisor, Magaly Alvarez, asserted that appellant did not report the alleged work
incident until Monday, May 3, 2010 and was unable to specify the time, place or manner in
which the incident occurred.
In an April 30, 2010 report, Dr. Gary Spero, a chiropractor, stated that appellant had
injured herself at work on April 29, 2010. He diagnosed cervical disc syndrome and brachial
neuritis and advised that she was unable to perform her work until further notice due to the
severity and multiplicity of her condition.
In a statement received by OWCP on May 5, 2010, Postmaster Debbie Gordon asserted
that appellant telephoned the employing establishment at approximately 12:30 p.m. on May 3,
2010 to advise that she had injured her back at work. She noted that appellant was unable to
state with certainty how and when the incident happened. Ms. Gordon had previously spoken to
appellant in the late morning or early afternoon of Friday, April 30, 2010. Appellant called that
day and stated that her back was hurting and that she was going to see her chiropractor; she never
mentioned, however, that she had sustained the injury at work.
Dr. Spero submitted reports dated April 30 to July 2, 2010. He listed that appellant
sustained a neck injury on April 29, 2010 and checked a box indicating that her injury
corresponded with her description of how the April 29, 2010 work incident occurred.
In a May 17, 2010 report, Dr. Spero again indicated that appellant had injured herself at
work on April 29, 2010. Appellant was lifting heavy mail trays and buckets from an overhead
position when she felt a pulling in her neck. The next day, she experienced severe neck pain and
stiffness with burning pain into her right arm. On examination, Dr. Spero found decreased
cervical ranges of motion, which he measured at 30 percent of normal, a positive cervical
compression test, provoking increased neck pain and arm pain on the right, and hypoesthesia on
the right at C5 and C6. He recommended that appellant undergo x-ray testing and a magnetic
resonance imaging (MRI) scan. Dr. Spero diagnosed cervical subluxation, cervical disc
syndrome and cervical brachial neuritis. He reiterated that appellant was unable to perform any
work duties at that time and projected that she could resume limited work starting on
June 1, 2010.
In a report dated June 23, 2010, Dr. Charles B. Goodwin, Board-certified in orthopedic
surgery, stated that appellant had complaints of four herniated discs. He related that she felt a
pop in her neck and was injured at work on April 29, 2010 after she lifted heavy equipment.
Dr. Goodwin noted that appellant’s work required her to lift heavy trays overhead. He stated that
appellant had a history of sciatica dating back 15 years that radiated into her right arm.
Appellant underwent x-ray testing of the cervical spine which showed disc space narrowing at
C5-6. She also underwent an MRI scan on June 2, 2010 which indicated posterior disc bulging
at C2-3, C5-6, C6-7, and T1-T2, in addition to anterior cervical subluxation at C4-5 with
posterior disc bulge. Dr. Goodwin diagnosed severe right cervical radiculopathy.
By memorandum dated July 1, 2010, the employing establishment noted that it had
investigated appellant and determined that her neck injury did not result from the alleged
April 29, 2010 work incident. Although appellant asserted on her Form CA-1 that she injured a
disc in her neck while picking up parcels, Ms. Gordon related that appellant had called on May 3,
2

2010 to report that she was not coming to work and would take sick leave for a bad back.
Appellant had provided an equivocal response when Ms. Gordon asked her to describe how or
when she injured her back. On May 5, 2010 Ms. Gordon sent a supervisor to appellant’s
residence and obtained a written statement regarding the injury. In the statement, appellant
indicated that on Thursday April 29, 2010 she felt a tingle in her neck while taking parcels and
trays from an overhead bulk mail container. She did not report the incident on that date because
she felt okay until late Friday, April 30, 2010, when she returned to her chiropractor to seek
treatment. Appellant stated that she had been previously getting treatment for a pinched nerve,
which worsened due to lifting heavy parcels and engaging in heavy sorting with her right arm.2
The employing establishment’s investigation also showed that she was a member of a running
club who had participated in several long distance races prior to her alleged April 29, 2010 work
incident.3 The most recent of these races took place on April 25, 2010, four days prior to
appellant’s injury, when she ran in the Central Park, New York City half marathon, a distance of
13.1 miles. The investigation revealed that she had an account with Facebook. Appellant stated
in her April 25, 2010 Facebook entry, “finished more ½ in central park, the worst day ever glad
to be done and finally warm now lazy.” In her April 27, 2010 entry, two days before her alleged
work incident, she stated, “Shouldn’t be driving but I can’t stay in anymore. macy’s, kohls here
I come.”4
By letter dated July 12, 2010, OWCP advised appellant that she needed to submit
additional factual and medical evidence in support of her claim. It stated that she had 30 days to
submit the requested information.
In a July 15, 2010 statement, appellant reiterated that her neck injury resulted from an
incident at work which occurred on April 29, 2010. She was removing heavy trays overhead
from a bulk mail container when she heard a pop in the back of her neck and immediately
experienced pain. The pain became progressively worse and appellant called in sick at work on
April 30 and May 1, 2010. She sought treatment from her chiropractor, Dr. Spero, to ameliorate
her neck pain and told him that the pain stemmed from the April 29, 2010 work incident.
Appellant stated that she reported the incident to her supervisor, Mr. Alvarez, who immediately
came to her residence to complete the injury-related paperwork.
Appellant rebutted the employing establishment’s July 1, 2010 investigative
memorandum. She denied competing in a marathon or in any physical activity on any of the
dates indicated in the report. Appellant experienced difficulty driving her vehicle for the
previous two and a half months because it caused pain in her arm.
In a July 7, 2010 report received by OWCP on July 26. 2010, Dr. Alan Mechanic, Boardcertified in neurosurgery, stated that appellant injured her neck while lifting a heavy object
2

A copy of this undated statement is attached to the report.

3

On March 13, 2010 appellant participated in a 15 kilometer (9.3 mile) road race; on March 21, 2010 she ran in
the Central Park Half Marathon in New York City, a 13 mile road race; on March 21, 2010 she participated in a 10
kilometer (6.1 mile) run; on April 10, 2010 appellant participated in a 3 mile race. The report supports these
references with copies of the official list of runners who participated in these races.
4

The report supports these references with copies of appellant’s Facebook entries, which she made online.

3

overhead and experienced a pop in the back of her neck, in addition to neck, shoulder and right
arm pain which radiated to the fingers of the right hand. Appellant experienced this pain on a
daily basis. Dr. Mechanic advised that she had been unable to return to work since that time. He
reviewed the results of a June 3, 2010 cervical MRI scan and opined that appellant had a
herniated disc at C5-6.
In a report dated July 23, 2010, Dr. John M. Stamatos, Board-certified in pain
management and anesthesiology, stated that he was treating appellant for cervical radiculopathy.
Appellant had been in excellent health until she injured her neck while lifting a palate over the
top of her head at work. Dr. Stamatos stated that her neck pain radiated down to her arm and
into the fingers of right arm, which also went numb on occasion.
In a July 27, 2010 memorandum, the employing establishment reiterated its contentions
and referenced additional information pertaining to appellant. It had taken photographs which
depicted her participation in races which occurred on March 21 and April 25, 2010, in addition to
a videotape of appellant running in a race on June 24, 2010.
By decision dated August 18, 2010, OWCP denied the claim, finding that appellant had
failed to meet her burden to establish fact of injury.
By letter dated September 13, 2010, appellant requested a review of the written record.
In a statement dated September 17, 2010, received by OWCP on October 12, 2010,
appellant reiterated her allegations. She stated that her job required her to remove heavy trays,
parcels and large bags of mail which caused her to injure her neck on April 29, 2010 and that she
did not experience excruciating neck pain until later in the day. Appellant called in sick on Friday,
April 30, 2010 and Saturday, May 1, 2010 so that she could rest her right arm. She denied telling
the employing establishment that she was experiencing back problems when she called in sick on
these dates, given that the April 29, 2010 work incident was related to upper disc problems.
Appellant stated that she had been scheduled for a chiropractor visit on April 30, 2010, at which
time she discovered that the pop she experienced on April 29, 2010 was a herniated or bulged disc
that impinged on the nerve.
By decision dated February 2, 2011, an OWCP hearing representative affirmed the
August 18, 2010 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.6 These are the essential elements of each and every
5

5 U.S.C. § 8101 et seq.

6

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

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compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged.8 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
OWCP cannot accept fact of injury if there are such inconsistencies in the evidence as to
seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged, or whether the alleged injury was in the performance of duty,10 nor can OWCP
find fact of injury if the evidence fails to establish that the employee sustained an “injury” within
the meaning of FECA. An injury does not have to be confirmed by eyewitnesses in order to
establish the fact that an employee sustained an injury in the performance of duty, as alleged, but
the employee’s statements must be consistent with surrounding facts and circumstances and her
subsequent course of action.11 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged injury,
and failure to obtain medical treatment may case doubt on an employee’s statements in
determining whether he or she has established his or her claim.12
ANALYSIS
The Board finds that appellant has not established fact of injury because of inconsistencies
in the evidence that cast serious doubt as to whether the specific event or incident occurred at the
time, place and in the manner alleged.
Appellant alleged on her May 3, 2010 CA-1 form that she felt pain in her neck while
retrieving parcels of mail on April 29, 2010. In addition, Dr. Spero related in his April 30 and
May 17, 2010 reports that appellant told him that her neck injury caused her April 29, 2010 work
incident. He stated in his May 17, 2010 report that she was lifting heavy mail trays and
containers from an overhead position when she felt a pulling in her neck. Drs. Mechanic,
Goodwin and Stamatos also stated that appellant felt a pop in her neck while lifting a heavy
object overhead during this incident. The description of the incident progresses from one
recitation to another from pain, to pulling, to a pop. These statements are also contradicted by
7

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

8

John J. Carlone, 41 ECAB 354 (1989).

9

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(e)(e).

10

Pendleton, supra note 6.

11

See Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
12

See Constance G. Patterson, 42 ECAB 206 (1989).

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the statements from Mr. Alvarez and Ms. Gordon. Mr. Alvarez stated that appellant called on
April 30 and May 1, 2010 and stated that she was not coming to work and that she was taking
sick leave for a bad back. Ms. Gordon provided a similar account in her May 5, 2010 statement.
According to her, appellant stated that she had injured her back at work and that she was sorry
she did not report her work incident previously. Ms. Gordon asserted that, due to her back pain,
appellant stated that she was going to see her chiropractor. When appellant initially called in
sick on April 30, 2010, however, she never stated that she had sustained the injury at work.
Ms. Gordon also asserted that appellant was unable to state with certainty how and when any
incident happened.13 In her May 5, 2010 statement, however, appellant stated that on Thursday,
April 29, 2010 she felt a tingle in her neck while taking parcels and trays from an overhead bulk
mail container. She asserted that she did not report the incident on that date because the pain did
not become severe until late Friday, April 30, 2010, when she returned to her chiropractor for a
previously scheduled appointment. Appellant has also noted that she had previously received
treatment for a pinched nerve, which worsened due to lifting heavy parcels and engaging in
heavy sorting with her right arm. In a September 11, 2010 statement, she denied that she told the
employing establishment that she was experiencing back pain on April 29 and 30, 2010, despite
the fact that Mr. Alvarez and Ms. Gordon both asserted on several occasions that she did.
Based on the instant record, therefore, there are discrepancies in the accounts of injury
appellant provided to different people. This contradictory evidence created an uncertainty as to the
time, place and in the manner in which appellant sustained her alleged neck injury. Appellant
allegedly injured her neck during the April 29, 2010 work incident, but according to her
supervisors she did not provide notification to the employing establishment for four days, after
initially advising that she had injured her back during the incident.14 In addition, while not
relevant to the issue of whether appellant injured her neck on April 29, 2010, appellant’s
credibility is further diminished because she denied running in several long distance races in
March and April 2010, despite the fact that the employing establishment produced documentary
evidence and a Facebook entry which indicated that she participated in several races during this
period. Moreover, it is unclear if the physicians of record had an accurate history of the April 29,
2010 incident as they related differing accounts of how the neck injury allegedly occurred and
did not indicate an awareness that appellant had initially complained of a back injury stemming
from the alleged April 29, 2010 incident.15 Furthermore, the form reports from Dr. Spero that
support causal relationship with a checkmark are insufficient to establish the claim, as the Board
has held that, without further explanation or rationale, a checked box is not sufficient to establish
causation.16

13

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of
Compensation, Chapter 2.900(b)(3) (September 1990).
14

Id.

15

See Geraldine H. Johnson, 44 ECAB 745 (1993).

16

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

6

Appellant failed to submit to OWCP a corroborating witness statement in response to its
request. This casts additional doubt on her assertion that she injured her neck while engaging in
heavy overhead lifting of mail parcels on April 29, 2010. OWCP requested that appellant submit
additional factual and medical evidence explaining how she injured her neck on the date in
question. Appellant failed to submit such evidence. Therefore, given the inconsistencies in the
evidence regarding how she sustained her injury, the Board finds that there is insufficient evidence
to establish that she sustained an injury in the performance of duty as alleged.17
For the reasons stated above, the Board finds that appellant did not meet her burden of
proof to establish fact of injury. Appellant may submit new evidence or argument with a written
request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly found that appellant failed to meet her burden of
proof to establish that she sustained a neck injury in the performance of duty on April 29, 2010.
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 19, 2011
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
17

See Mary Joan Coppolino, 43 ECAB 988 (1992) (where the Board found that discrepancies and inconsistencies in
appellant’s statements describing the injury created serious doubts that the injury was sustained in the performance of
duty).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, HARVEST POST
OFFICE, Harvest, AL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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)
)
)
)
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)

Docket No. 21-0585
Issued: March 11, 2022

Case Submitted on the Record

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

On March 5, 2021 appellant filed a timely appeal from a November 13, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 21-0585.
On May 7, 2018 appellant, then a 58-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 4, 2018,1 at approximately 8:30 a.m., he strained his back when
picking up a delivery point sequence (DPS) tray while in the performance of duty. He stopped
work on the alleged date of injury. OWCP assigned the claim OWCP File No. xxxxxx463.2

1

Appellant indicated on his claim form that the injury occurred on May 5, 2018. In a June 11, 2018 letter, however,
appellant clarified that the correct date of injury was May 4, 2018. In a June 13, 2018 letter, the employing
establishment notified OWCP that the correct date of injury was May 4, 2018. In a June 19, 2018 letter, OWCP
notified appellant that his date of injury was changed to May 4, 2018.
2

The record reflects that appellant has a prior cla im for a February 4, 2009 traumatic injury, that was accepted for
lumbar sprain under OWCP File No. xxxxxx873. Appellant also has a prior claim for a June 7, 2011 traumatic injury
accepted for shoulder and upper arm sprains; abrasions/friction burn; contusion; face, neck, and scalp
abrasions/friction; neck sprain; lumbar sprain; and concussion under OWCP File No. xxxxxx378. Additionally, he
filed a Form CA-1 on September 29, 2017 alleging that he sustained a work-related back and neck injury on that date
under OWCP File No. xxxxxx574. Appellant subsequently filed a nother Form CA-1 alleging that on November 16,
2017 he strained his mid-back under OWCP File No. xxxxxx665.

By decision dated January 14, 2019, OWCP accepted that the May 4, 2018 incident
occurred as alleged, but denied appellant’s claim as the medical evidence of record was insufficient
to establish causal relationship between a diagnosed medical condition and the accepted
employment incident.
OWCP received additional medical evidence.
On September 21, 2019 appellant requested reconsideration.
By decision dated November 8, 2019, OWCP modified the January 14, 2019 decision to
find that appellant had not established the factual component of his claim.
On February 4, 2020 appellant requested reconsideration and submitted additional medical
evidence.
By decision dated March 23, 2020, OWCP denied modification.
On June 19, 2020 appellant requested reconsideration. By decision dated September 11,
2020, OWCP denied modification of the March 23, 2020 decision.
On October 1, 2020 appellant requested reconsideration and submitted additional evidence.
By decision dated November 13, 2020, OWCP denied modification.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files. 3 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required. 4 In the present claim,
appellant alleged injuries to his back, shoulders, and neck. He has prior claims before OWCP
alleging neck, shoulder, and back injuries, including previously accepted claims under OWCP File
Nos. xxxxxx873 and xxxxxx378. However, OWCP has not administratively combined appellant’s
claims.
For a full and fair adjudication of appellant’s current claim, the case must be remanded to
OWCP to administratively combine the current case record with OWCP File Nos. xxxxxx873,
xxxxxx378, xxxxxx574, and xxxxxx665.5 Following this and other such further development as
OWCP deems necessary, it shall issue a de novo decision.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

5

Id.

2

IT IS HEREBY ORDERED THAT the November 13, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 11, 2022
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
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and
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DEPARTMENT OF LABOR, EMPLOYMENT
)
STANDARDS ADMINISTRATION,
)
Tampa, FL, Employer
)
___________________________________________ )
E.M., Appellant

Appearances:
William Hackney, for the appellant
Office of Solicitor, for the Director

Docket No. 08-472
Issued: August 14, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 5, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated October 11, 2007 which denied modification of a
decision denying appellant’s claim for an occupational disease. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
developed carpal tunnel syndrome, arthritis and low back pain while in the performance of duty.
FACTUAL HISTORY
On November 29, 2005 appellant, then a 49-year-old wage and hour compliance
specialist, filed an occupational disease claim alleging that she developed carpal tunnel
syndrome, arthritis and low back pain from performing repetitive duties at work. She became
aware of her condition on May 1, 2003. Appellant did not stop work.

On December 7, 2005 the Office advised appellant of the type of factual and medical
evidence needed to establish her claim, particularly requesting that appellant submit a
physician’s reasoned opinion addressing the relationship of her claimed condition and specific
employment factors.
Appellant submitted reports from Dr. Michael Coleman, a Board-certified physiatrist,
noting appellant’s treatment in late 2000 for neck pain and strain which he felt was aggravated
by work. From March 15 to June 7, 2005, she was treated by Dr. Rafael Rodriguez, a Boardcertified internist, for severe bilateral arm numbness. Dr. Rodriguez noted that appellant’s
history had a motor vehicle accident in August 2004 in which she was rear-ended and
subsequently had arthritis in her spine and neck pain radiating into her shoulder. He noted a
nerve conduction study revealed moderate carpal tunnel syndrome and cubital tunnel syndrome
on the left side and an electromyogram (EMG) revealed evidence of C7-8 radiculopathy,
possible left carpal tunnel syndrome and ulnar neuropathy. Dr. Rodriguez diagnosed bilateral
carpal tunnel syndrome, moderately severe, C7-8 radiculopathy on the right, left ulnar
compressive neuropathy at the elbow on the left and cervical cord compression. Appellant
sought treatment from Dr. Donna Saatman, a neurologist, on September 27, 2005, for neck pain
and weakness and numbness on the right side. Dr. Saatman diagnosed degeneration of the
cervical intervertebral disc, degeneration of lumbar or lumbosacral intervertebral disc and right
carpal tunnel syndrome. She opined that appellant’s right arm symptoms originated from
cervical radiculopathy and peripheral neuropathy and coincided with the diagnosis of bilateral
carpal tunnel syndrome and right S1 radiculopathy. On January 3, 2006 Dr. Saatman advised
that appellant would be totally disabled from January 9 to February 13, 2006.
On January 23, 2006 the Office denied appellant’s claim on the grounds that the medical
evidence did not establish that her condition was caused by her employment duties.
Thereafter, appellant submitted treatment notes from Dr. Antonio Rivera, a Boardcertified physiatrist, who treated appellant beginning in 2001 for various conditions including
neck and shoulder pain.1 She also requested reconsideration and provided additional medical
evidence. On May 2, 2006 Dr. Rodriguez diagnosed bilateral carpal tunnel syndrome and opined
that the condition was caused by repetitive work duties. On May 26, 2006 appellant was treated
by Dr. Diana Roque, a Board-certified internist, who opined that appellant’s right carpal tunnel
was caused by computer-related work. In a June 12, 2006 report, Dr. Saatman noted performing
a right carpal tunnel release on January 9, 2006. She noted that “it is the feeling” that appellant’s
condition was caused by data entry, excessive writing and computer work she performed for nine
years.
In a decision dated August 24, 2006, the Office denied modification of the prior decision
on the grounds that evidence of record was insufficient to establish that the condition claimed
was caused or worsened by her work duties.2
1

On March 13, 2006 appellant requested an oral hearing which the Office denied, on April 14, 2006, as not being
timely filed.
2

On August 25, 2006 appellant filed a claim for carpal tunnel syndrome, Claim No. 112036262. The Office, on
September 15, 2006, advised that this was a duplicate of Claim No. 11-2032027. It deleted the duplicate claim.

2

On November 6 and 13, 2006 appellant requested reconsideration and noted performing
repetitive tasks while working at the employment establishment for 17 years. Medical evidence
submitted included a May 3, 2001 cervical spine x-ray showing mild degenerative change at C5C6, and a July 29, 2006 magnetic resonance imaging (MRI) scan of the lumbar spine showing
paracentral L5-S1 disc protrusion affecting the right S1 nerve. On September 12, 2006
Dr. Roque diagnosed left carpal tunnel syndrome, cervical spondylosis and lumbar disc disease
and noted appellant could work full time with restrictions. On September 13, 2006 she stated
that appellant’s carpal tunnel syndrome, tendinitis and cervical radiculitis were employment
related. In October 13 and November 3, 2006 notes, Dr. Roque stated that appellant had severe
neck pain with radiation to her arms and carpal tunnel syndrome since 2001. She opined that
appellant’s work significantly worsened her condition and she was presently disabled. On
October 16, 2006 Dr. Saatman noted treating appellant since July 7, 2005 and diagnosed cervical
spine disc degeneration and bilateral carpal tunnel syndrome. Appellant attributed her back and
neck pain and left carpal tunnel syndrome to her work but the physician stated that it was
impossible to speculate what caused appellant’s carpal tunnel, cervical spine spondylosis and
lumbar degeneration; however, she opined that appellant’s employment duties could
significantly contribute to the progression of her disease.
In a decision dated February 23, 2007, the Office denied modification of the prior
decision on the grounds that the medical evidence of record was insufficient to establish a causal
connection between the claimed condition and the specific work-related activity.
On May 8, 2007 appellant requested reconsideration. She submitted an April 26, 2007
report from Dr. Saatman who opined that appellant’s work activities including computer typing,
lifting files, conducting negotiations and transcribing statements contributed to her carpal tunnel
syndrome, cervical spine spondylosis and lumber spine degeneration. Dr. Saatman noted that
appellant’s symptoms began in November 2000, before her 2004 automobile accident. In a
May 2, 2007 note, Dr. Roque diagnosed bilateral carpal tunnel syndrome and cervical and
lumbar radiculopathy and opined that appellant’s symptoms worsened when she was at work
lifting, carrying and repetitively using her hands when typing.
In a June 29, 2007decision, the Office denied modification of its prior decision as the
medical evidence did not establish that her claimed conditions were work related.
On August 23, 2007 appellant requested reconsideration and submitted an August 8, 2007
attending physician’s report from Dr. Saatman who diagnosed bilateral carpal tunnel syndrome,
cervical spine spondylosis and noted with a checkmark “yes” that appellant’s condition was
caused or aggravated by her employment. She explained that appellant used her hands to
perform repetitive duties including typing, carrying a briefcase and data entry which precipitated
and aggravated her preexisting carpal tunnel and cervical spondylosis. In an August 14, 2007
report, Dr. Saatman noted appellant’s diagnoses and opined that her work duties, including
computer typing, lifting files, conducting negotiations and transcribing statements significantly
worsened her carpal tunnel syndrome, cervical spine spondylosis and lumber spine degeneration.
An August 10, 2007 cervical spine MRI scan revealed a C5-6 anterior fusion with C4-5 and C6-7
disc protrusions. An August 10, 2007 MRI scan of the right wrist showed a small ganglion cyst.

3

In an October 11, 2007 decision, the Office denied modification of the claim finding that
the medical evidence did not establish that her claimed conditions were work related.3
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the injury was
sustained in the performance of duty as alleged, and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5

3

On November 16, 2007 appellant filed an occupational disease claim for bilateral carpal tunnel syndrome, Claim
No. 11-2042209. The Office consolidated Claim No. 11-2042209 with the current claim before the Board, No. 112032027, as both claims allege appellant developed the same conditions from performing repetitive duties at work.
On December 5, 2007 appellant appealed the October 11, 2007 decision to the Board. She submitted additional
evidence to the Office after issuance of the Office’s October 11, 2007 decision. On February 7, 2008 the Office
issued a merit decision accepting appellant’s claim for bilateral carpal tunnel syndrome and aggravated cervical
spondylosis without myelopathy. However, as the Board acquired jurisdiction over the appeal on December 5,
2007, the February 7, 2008 Office decision is null and void. The Board and the Office may not have concurrent
jurisdiction over the same issue in a case; see Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41
ECAB 880 (1990). The Board also may not consider new evidence on appeal. 20 C.F.R. § 501.2(c).
4

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

5

Solomon Polen, 51 ECAB 341 (2000).

4

ANALYSIS
It is not disputed that appellant’s duties as a wage and hour compliance specialist
included repetitive activities using her hands including typing, keyboarding, transcribing and
sitting for long periods of time. It is also not disputed that appellant has been diagnosed with
bilateral carpal tunnel syndrome, cervical spine spondylosis and lumber spine degeneration.
However, appellant has not submitted sufficient medical evidence to establish that bilateral
carpal tunnel syndrome, cervical spine spondylosis and lumber spine degeneration are causally
related to specific employment factors or conditions.
Appellant submitted reports from Dr. Coleman from late 2000 diagnosing neck pain and
strain that were aggravated by work. However, Dr. Coleman did not provide rationale regarding
causal relationship that explained how or why the employment activities caused or contributed to
a diagnosed condition.6 His opinion is insufficient to establish the claim.
In reports dated March 15 to June 7, 2005, Dr. Rodriguez noted diagnoses and advised
that appellant’s history was significant for a motor vehicle accident in August 2004 after which
she had arthritis in her spine and severe neck radiating pain. He did not attribute appellant’s
condition to her work duties, rather, he attributed her condition to a motor vehicle accident in
2004. On May 2, 2006 Dr. Rodriguez diagnosed bilateral carpal tunnel syndrome and opined
that appellant’s condition was caused by her repetitive work duties. However, this report is
conclusory and does not contain rationale in which the physician explains the reasons why
appellant’s bilateral carpal tunnel condition was work related and why appellant’s symptoms
would not be attributable to the 2004 motor vehicle accident.
In a report dated June 12, 2006, Dr. Saatman diagnosed carpal tunnel syndrome and
noted that “it is the feeling” that appellant’s condition was promoted by her occupation of data
entry. On October 16, 2006 she diagnosed cervical spine disc degeneration and bilateral carpal
tunnel syndrome and advised that it was “impossible to speculate” on the cause of appellant’s
bilateral carpal tunnel, cervical spine spondylosis and lumbar spine degeneration but that
appellant’s employment “can exacerbate” the progression of her disease. Although, Dr. Saatman
indicated that appellant’s job could exacerbate her medical conditions, this opinion was couched
in speculative terms. The Board has held that medical opinions which are speculative or
equivocal in character have little probative value.7 In reports dated April 26 and August 14,
2007, Dr. Saatman diagnosed bilateral carpal tunnel syndrome, cervical spine spondylosis and
lumber spine degeneration and opined that appellant’s work activities significantly caused and
worsened the carpal tunnel syndrome, cervical spine spondylosis and lumber spine degeneration.
These reports are insufficient because Dr. Saatman did not provide a rationalized opinion
6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001). Furthermore, a diagnosis of pain does
not constitute the basis for payment of compensation. Robert Broome, 55 ECAB 339 (2004).
7

See Kathy A. Kelley, 55 ECAB 2006 (2004) (where the Board found a physician’s statement that appellant’s work
duties “may be” aggravating his knee condition to be speculative and of diminished probative value); Jennifer Beville,
33 ECAB 1970 (1982) (where the Board found a physician’s statement that appellant’s complaints “could have been”
related to an employment incident to be speculative and of limited probative value).

5

regarding the causal relationship between appellant’s conditions and the factors of employment
believed to have caused or contributed to such condition.8 For example, the physician did not
explain the process by which repetitive activities would cause the diagnosed conditions and why
such conditions would not be due to nonwork factors such as the 2004 car accident which caused
chronic neck and shoulder pain. Likewise, in an August 8, 2007 attending physician’s report
Dr. Saatman opined that certain duties caused or aggravated appellant’s diagnosed condition but
she did not explain the processes by which performance of such duties would cause or aggravate
any medical condition. Other reports from Dr. Saatman did not specifically address whether
appellant’s employment activities caused or aggravated a diagnosed condition.
Reports from Dr. Roque, dated May 26, 2006 to May 2, 2007, diagnosed bilateral carpal
tunnel syndrome and cervical and lumbar radiculopathy and opined that appellant’s work duties
including repetitive use of her hands made her condition worse. However, these reports do not
contain rationale in which the physician explains the reasons why appellant’s bilateral carpal
tunnel syndrome and cervical and lumbar radiculopathy were work related and why appellant’s
symptoms would not be attributable to the automobile accident in which she was rear-ended
in 2004.
The remainder of the medical evidence, including reports from Dr. Rivera, MRI scans of
the lumbar spine and wrist, fail to provide a specific opinion on the causal relationship between
appellant’s job duties and her diagnosed carpal tunnel syndrome, cervical spine spondylosis and
lumber spine degeneration. For this reason, this evidence is not sufficient to meet appellant’s
burden of proof.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.10 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence, and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
developed an employment-related injury in the performance of duty.

8

See Jimmie H. Duckett, supra note 6.

9

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
10

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

6

ORDER
IT IS HEREBY ORDERED THAT the October 11, June 29 and February 23, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 14, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE AIR FORCE,
PETERSON AIR FORCE BASE, CO, Employer
__________________________________________

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)

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

Docket No. 09-1544
Issued: March 2, 2010

Case Submitted on the Record

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

JURISDICTION
On May 29, 2009 appellant filed a timely appeal of the May 4, 2009 schedule award
decision of the Office of Workers’ Compensation Programs. 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 more than a two percent binaural (both ears) hearing
loss, for which he received schedule awards.
On appeal, appellant contends that he is entitled to 19 years of compensation for his
hearing loss.
FACTUAL HISTORY
On May 14, 2008 appellant, then a 58-year-old maintenance supervisor, filed an
occupational disease claim alleging that on August 8, 1988 he first became aware of his bilateral
hearing loss and tinnitus, and realized that his conditions were caused by his federal

employment. He stated that an audiologist from the Air Force Academy advised him that his
hearing loss was produced by noise from heating, ventilating and cooling (HVAC) equipment.
By letter dated May 23, 2008, the Office requested that the employing establishment
provide information regarding appellant’s noise exposure at work. It also advised appellant that
the evidence submitted was insufficient to establish his claim. The Office addressed the factual
evidence that he needed to submit, including a history of his employment and noise exposure in
the stated jobs, whether he was still exposed to noise at work and the dates he first became aware
of his hearing loss and first realized that his condition was work related.
The employing establishment submitted annual audiograms conducted between
August 30, 2005 and April 2008. Medical records dated September 22, 2002 and November 2,
2005 from the health unit advised that appellant was fit for duty with noise restrictions.
Appellant was fitted for hearing protection and was considered to be a borderline candidate for
hearing aids.
An April 29, 2008 medical report of Dr. Edgar B. Galloway, a Board-certified
otolaryngologist, reviewed a history that appellant’s hearing loss had progressively worsened
during the past 10 years. He stated that, as a HVAC supervisor for 32 years, appellant was
exposed to noise at work. Dr. Galloway diagnosed subjective tinnitus and bilateral sensorineural
hearing loss of combined types. He opined that the diagnosed conditions were caused by
appellant’s employment.
In a May 21, 2008 narrative statement, appellant provided a history of noise exposure in
his employment. He worked at a private plumbing company and federal agencies including the
current employing establishment. Appellant first became aware of his hearing loss in the mid1980s as a result of yearly occupational hearing tests which demonstrated bilateral hearing loss.
He was currently exposed to noise at the employing establishment four to six hours per day.
Appellant wore hearing protection whenever possible.
The employing establishment submitted environmental studies that were performed on
intermittent dates between May 30, 1996 and March 4, 2008. The employees working in the
mechanical rooms were exposed to hazardous noise and should remain on the hearing
conservation program. In a March 19, 2008 letter, the employing establishment acknowledged
that appellant was exposed to hazardous noise in the workplace, two to three hours per day.
By letter dated December 28, 2008, the Office referred appellant, together with a
statement of accepted facts and the case record, to Dr. Richard L. Cundy, a Board-certified
otolaryngologist, for an otologic examination and audiological evaluation. In a November 17,
2008 report, Dr. Cundy reviewed appellant’s exposure to loud noise while working as an
equipment mechanic at the employing establishment. He opined that this exposure was
sufficient in intensity and duration to cause appellant’s hearing loss. Dr. Cundy noted that
compressors operated at 90 decibels and other machines operated at levels greater than 80
decibels. He diagnosed bilateral neurosensory hearing loss and tinnitus that were due in part to
noise exposure. Dr. Cundy recommended hearing aids. He advised that appellant’s hearing loss
was well beyond what would be expected at his age without noise exposure. Dr. Cundy included
a November 17, 2008 audiogram which demonstrated on the right 5 decibels at 500 hertz (Hz);

2

10 decibels at 1,000 Hz; 30 decibels at 2,000 Hz and 50 decibels at 3,000 Hz. On the left at the
same frequency levels, the audiogram demonstrated 10, 10, 40 and 45 decibels, respectively.
On December 11, 2008 an Office medical adviser reviewed the medical evidence. He
agreed with Dr. Cundy that appellant sustained binaural sensorineural hearing loss and reached
maximum medical improvement on November 17, 2008. Based on the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment1 (A.M.A.,
Guides), the Office medical adviser found that appellant had a 1.88 percent hearing impairment
of the left ear and no ratable impairment of the right ear, or in a 1.6 binaural hearing impairment.
He opined that appellant had zero percent impairment for tinnitus. The medical adviser
authorized hearing aids.
By letter dated January 8, 2009, the Office accepted appellant’s claim for binaural
hearing loss. On January 21, 2009 appellant filed a claim for a schedule award.
By decision dated February 19, 2009, the Office granted appellant a schedule award for a
two percent monaural hearing loss in his left ear.
In a March 4, 2009 letter, he requested reconsideration. Appellant submitted audiograms
conducted by the employing establishment between July 24, 1989 and April 4, 2008 which
reflected bilateral hearing loss.
In a May 4, 2009 decision, the Office modified the February 19, 2009 schedule award
decision to reflect that appellant was entitled to a two percent binaural hearing impairment. The
period of the schedule award was from November 17 to December 14, 2008, representing four
weeks of compensation.2 The Office explained that the original calculation was in error
“because the two percent impairment for monaural hearing loss award for 1.04 weeks was less
than the award for two percent impairment for binaural hearing loss for 4 weeks.”
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, 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

1

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

2

In the May 4, 2009 decision, the Office noted that appellant was previously paid for 1.04 weeks of
compensation from November 17 to 24, 2008 for a two percent monaural hearing loss in the left ear based on the
February 19, 2009 schedule award decision. Appellant was entitled to an additional 2.96 weeks of compensation for
the newly awarded two percent binaural hearing loss (4 weeks less the 1.04 weeks already paid).
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

3

uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.5
The Office 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.7 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.8 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.9 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.10 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.11
The A.M.A., Guides provides that tinnitus in the presence of unilateral or bilateral
hearing impairment may impair speech discrimination. Therefore, add up to five percent for
tinnitus in the presence of measurable hearing loss if the tinnitus impacts the ability to perform
activities of daily living.12 However, subjective information regarding the impact of tinnitus on
daily life should not be the sole criteria for determining impairment. Objective data must be
integrated with the subjective data to estimate the degree of impairment.13
ANALYSIS
The Board finds that appellant does not have more than a two percent binaural hearing
loss.
Dr. Cundy, the Office referral physician, examined appellant and submitted a
November 17, 2008 report finding that he sustained bilateral neurosensory hearing loss and
tinnitus causally related to his work-related noise exposure. An audiogram of that date
accompanied his report.
The Office medical adviser authorized hearing aids and applied the Office’s standardized
procedures to the November 17, 2008 audiogram. Testing of the right ear at frequency levels of
5

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

A.M.A., Guides 250.

7

Id.

8

Id.

9

Id.

10

Id.

11

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
12

Id.

13

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

4

500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of 5, 10, 30 and 50, respectively for a
total of 95 decibels. When divided by 4, the result is an average hearing loss of 23.75 decibels.
The average loss of 23.75 is reduced by 25 decibels to equal 0, which, when multiplied by the
established factor of 1.5, results in 0 percent hearing loss for the right ear.
Testing of the left ear at the same above-noted frequency levels revealed decibel losses of
10, 10, 40 and 45, respectively for a total of 105 decibels. When divided by 4, the result is an
average hearing loss of 26.25 decibels. The average loss of 26.25 decibels is reduced by 25
decibels to equal 1.25, which, when multiplied by the established factor of 1.5, results in a 1.875,
rounded up to a two percent hearing loss for the left ear.14
On reconsideration the Office medical adviser then calculated appellant’s binaural
hearing loss. The 1.88 percent hearing loss for the left ear, when multiplied by five, yielded a
product of 9.40. The 9.4 percent loss was then added to the 0 percent hearing loss for the right
ear to obtain a total of 9.4. The 9.4 percent loss was then divided by six which resulted in 1.56,
rounded up to a 2 percent binaural hearing loss.
The Board finds that the Office medical adviser properly applied the Office’s standards to
the findings in Dr. Cundy’s November 17, 2008 audiogram and concluded that appellant
sustained a two percent binaural hearing loss.
Appellant submitted audiograms performed by the employing establishment between
July 24, 1989 and April 4, 2008. However, none of the audiograms were certified or
accompanied by a physician’s discussion of the employment factors believed to have caused or
contributed to his hearing loss. The Board finds, therefore, that the audiograms from
audiologists do not constitute probative medical evidence.15
The Board notes that, although Dr. Cundy found that appellant had tinnitus, he did not
opine that the condition affected appellant’s ability to perform activities of daily living. Further,
the Office medical adviser opined that appellant did not have any additional impairment for
tinnitus. The Board finds, therefore, that appellant is not entitled to an additional schedule award
for tinnitus.
The Act establishes a maximum of 200 weeks of compensation as the award for total
binaural hearing loss.16 A partial loss of hearing is compensated at a proportionate rate.17
14

The Office’s procedure manual explains with respect to hearing loss, the number is rounded up from .50 and
down from .49. Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)
(September 1994); Carl J. Cleary, 57 ECAB 563 (2006).
15

See 5 U.S.C. § 8101(2). See Robert E. Cullison, 55 ECAB 570 (2004) (the Office does not have to review
every uncertified audiogram, which has not been prepared in connection with an examination by a medical
specialist); See also Herman L. Henson, 40 ECAB 341 (1988) (an audiologist is not considered a physician under
the Act); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can
only be given by a qualified physician).
16

5 U.S.C. § 8107(c)(13)(B).

17

Id. at § 8107(c)(19).

5

Appellant had two percent binaural hearing loss or entitlement to four weeks of compensation.18
He has been compensated for his two percent binaural hearing loss.
CONCLUSION
The Board finds that appellant has no more than a two percent binaural hearing loss, for
which he received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the May 4, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 2, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

18

This figure is reached by multiplying 200 by two percent.

6