United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Springfield, MA, Employer
__________________________________________

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Appearances:
Shawn P. Allyn, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0524
Issued: April 18, 2019

Case Submitted on the Record

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

JURISDICTION
On January 17, 2018 appellant, through counsel, filed a timely appeal from a November 29,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

Appellant, through counsel, timely requested oral argument pursuant to 20 C.F.R. § 501.5(b). By order dated
March 1, 2019, the Board exercised its discretion and denied the request, finding that the arguments on appeal could
be adequately addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument,
Docket No. 18-0524 (issued March 1, 2019).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted January 31, 2017 employment incident.
FACTUAL HISTORY
On February 1, 2017 appellant, then a 47-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on January 31, 2017 he injured his neck and right shoulder while
operating a pallet jack while in the performance of duty. He indicated that when the pallet jack hit
a groove in the floor, it pulled on his arm. Appellant stopped work on February 1, 2017.
Appellant was initially treated in urgent care. In an examination report dated February 1,
2017, Suzanne F. Dabakis-Choquette, a nurse practitioner, related that appellant sustained an
injury “last night” while operating a pallet jack and complained of right shoulder and neck pain.
Examination of appellant’s right shoulder showed positive Hawkins and Neer signs and pain along
the trapezius. A February 1, 2017 right shoulder x-ray showed no fracture or dislocation and
normal acromioclavicular (AC) and glenohumeral joints. She diagnosed a shoulder strain and
advised appellant to avoid heavy lifting. A February 2, 2017 work status note from the same urgent
care facility indicated “[right] shoulder injury,” and advised that appellant could resume work on
February 6, 2017 performing light duty, with a 10-pound lifting restriction. Appellant was to
continue light duty through February 13, 2017.
In an examination report and duty status report (Form CA-17) dated February 13, 2017,
Dr. Talal Khan, a Board-certified internist, related that he had treated appellant for a right shoulder
injury that occurred on January 31, 2017. He reported that appellant was driving a power jack and
drove over a groove on the platform, which jolted his right shoulder. Dr. Khan reported that on
clinical examination appellant’s pain “could be secondary to rotator cuff injury.” He diagnosed
rotator cuff injury and checked a box indicating that appellant could not work. Dr. Khan referred
appellant for a right shoulder magnetic resonance imaging (MRI) scan.
A February 27, 2017 right shoulder MRI scan revealed AC joint degeneration, acromion
anatomic morphology, rotator cuff tendinopathy, and intra-articular bicipital tendinopathy without
full-thickness rotator cuff tear.

3

5 U.S.C. § 8101 et seq.

4
The Board notes that following the November 29, 2017 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.

2

On February 28, 2017 Dr. Jennie V. Garver, a Board-certified orthopedic surgeon,
diagnosed right rotator cuff tendinitis and referred appellant for physical therapy. Appellant began
physical therapy on March 10, 2017, which OWCP authorized.
In a report dated March 24, 2017, Dr. Garver indicated that she had seen appellant on
February 28, 2017 and that he was under her care for a right shoulder injury. She also indicated
that she would evaluate appellant’s ability to return to work at his next appointment on
April 4, 2017.
In a follow-up note dated April 4, 2017, Dr. Garver indicated that appellant’s status was
essentially unchanged since his February 28, 2017 visit. She recommended that appellant remain
off work for another six weeks while he continued with physical therapy. Dr. Garver also provided
an April 4, 2017 duty status report (Form CA-17) with a diagnosis of right shoulder labral injury.
In an undated attending physician’s report (Form CA-20), Dr. Garver described a history
of injury of “jarring injury” to the right shoulder on January 31, 2017. She diagnosed right
shoulder labral injury. Dr. Garver checked a box marked “yes” indicating that appellant’s
condition was caused or aggravated by the employment activity. She explained: “jarring injury
caused labral injury.” Dr. Garver noted that appellant remained disabled from work.
In an April 25, 2017 development letter, OWCP noted that when appellant’s claim was
first received it appeared to be a minor injury that resulted in minimal or no lost time from work
and was therefore administratively approved for a payment of a limited amount of medical
expenses. It reported that the medical evidence addressing his claim had not been formally
considered and that additional factual and medical evidence was necessary to establish his claim.
OWCP requested that appellant provide additional factual and medical evidence to establish his
claim and provided a questionnaire for his completion. It afforded him 30 days to respond.
OWCP subsequently received appellant’s completed questionnaire dated May 16, 2017.
Appellant described that he was on dock 6 operating a pallet jack when the wheel of the pallet jack
hit some grooves in the floor and made the handle move hard to the right, pulling his arm, and
jerking his head and body.
OWCP also received additional physical therapy treatment records dated through
May 11, 2017.
By decision dated May 26, 2017, OWCP denied appellant’s traumatic injury claim. It
accepted that the January 31, 2017 incident occurred as alleged and that there was a diagnosed
right shoulder condition. However, OWCP denied appellant’s claim finding insufficient medical
evidence of record to establish that his right shoulder condition was causally related to the accepted
January 31, 2017 employment incident.
Following the decision, OWCP received narrative reports by Dr. Garver dated April 4 and
May 16, 2017. Dr. Garver noted appellant’s complaints of pain over the anterior and lateral
aspects of his right shoulder. Upon physical examination of appellant’s right shoulder, he observed
mild tenderness to palpation over the subacromial space. Neer and Hawkins tests were positive.
Dr. Garver reported that appellant had a “jarring injury” to the right shoulder on January 31, 2017,
which appeared to have resulted in a rotator cuff strain.
3

On June 19, 2017 appellant, through counsel, requested a hearing before an OWCP hearing
representative.
Appellant submitted additional medical evidence. In a narrative reports dated June 13
through July 31, 2017, Dr. Garver described that on January 31, 2017 appellant was at work when
a “pallet jack he was driving hit an immovable object, resulting in a jarring injury to the shoulder.”
She noted appellant’s complaints of right shoulder pain and diminished range of motion.
Dr. Garver reported examination findings of mild tenderness over the subacromial space of
appellant’s right shoulder and positive Neer and Hawkins tests. She indicated that a right shoulder
MRI scan showed no evidence of rotator cuff tear, but there were concerns for strain and early
capsulitis. In the July 31, 2017 report, Dr. Garver opined that appellant “sustained a jarring injury
to the right shoulder on [January 31, 2017], resulting in a likely strain to the rotator cuff.” She
also reported that appellant may have adhesive capsulitis and recommended that he return to
physical therapy treatments.
Dr. Garver also completed Form CA-20 and Form CA-17 reports dated June 13, 2017. She
noted a January 31, 2017 date of injury and diagnosed right shoulder labral injury. Dr. Garver
checked a box marked “yes” indicating that appellant’s condition was caused by his employment.
She reported “jarring injury caused labral injury.”
In a narrative report dated September 12, 2017, Dr. Garver accurately described the
January 31, 2017 employment injury. She reported dramatic improvement in appellant’s shoulder
symptoms since his cortisone injection and returning to physical therapy treatments. Upon
examination of appellant’s right shoulder, Dr. Garver observed no tenderness to palpation and
improved range of motion. Speed and Neer tests were mildly positive. Dr. Garver again reported
that appellant had a “jarring injury to the right shoulder at work on January 31, 2017 likely
resulting in a strain to the rotator cuff.” She recommended that appellant return to part-time,
limited duty for four hours per day beginning September 19, 2017.
On September 19, 2017 appellant returned to work in a part-time, limited-duty capacity.
A hearing was held on October 13, 2017.
In a letter dated October 9, 2017, Dr. Garver related that appellant had been under her care
since February 28, 2017. She described that, on January 31, 2017, appellant was steering a pallet
jack at work when it struck something, resulting in a jarring injury to the right shoulder. Dr. Garver
indicated that on initial evaluation of appellant’s right shoulder on February 28, 2017, she observed
tenderness over the subacromial space and long head biceps tendon. Range of motion was mildly
restricted. She opined: “I believe that the jarring injury to the shoulder likely caused a strain to
the rotator cuff and/or biceps tendon with subsequent development of this inflammation.”
Dr. Garver discussed the medical treatment she provided. She further explained: “While rotator
cuff inflammation can occur without injury, the onset of the patient’s symptoms correlates
temporally with the jarring injury sustained at work on [January 31, 2017], and I believe with a
reasonable degree of medical certainty that the patient’s right shoulder complaints are the result of
that injury.”

4

Dr. Garver provided another narrative report dated October 16, 2017. She described the
claimed January 31, 2017 employment injury and provided examination findings similar to her
September 12, 2017 evaluation. Dr. Garver again noted that appellant had a “jarring injury to the
shoulder at work on [January 31, 2017], resulting in a strain of the rotator cuff.” She recommended
that appellant increase his work hours to six hours per day.
In an October 19, 2017 letter, counsel requested that OWCP review five color photographs
that were enclosed.
By decision dated November 29, 2017, an OWCP hearing representative affirmed the
May 26, 2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,6 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.7 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.8
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.9 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.10 The second component is whether the employment incident caused a
personal injury.11
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.12 A physician’s opinion on whether there is causal relationship
5

Supra note 3.

6
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

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

10

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

11

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

12

T.H., supra note 9; Robert G. Morris, 48 ECAB 238 (1996).

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between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.13 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).14
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted January 31, 2017 employment incident.
Appellant submitted several narrative reports, CA-20 and CA-17 forms, and letters by
Dr. Garver dated February 28 to October 16, 2017. In an April 4, 2017 narrative report, Dr. Garver
described that on January 31, 2017 appellant injured his right shoulder when the pallet jack he was
driving hit something. She provided examination findings of observed mild tenderness to
palpation over the right shoulder subacromial space and positive Neer and Hawkin’s signs. In
reports dated July 13 to September 12, 2017, Dr. Garver opined that appellant sustained a “jarring
injury” to the right shoulder, which “likely resulted” in a rotator cuff strain. She also noted that
appellant “may have adhesive capsulitis.” The Board finds that Dr. Garver’s determination of a
“likely” rotator cuff strain and her opinion that he “may have” adhesive capsulitis is speculative
and equivocal and does not constitute a definitive diagnosis.16 Likewise, Dr. Garver’s opinion in
his February 13, 2017 note and Form CA-17 that appellant’s right shoulder pain “could be
secondary” to a rotator cuff injury is speculative and equivocal.17 An award of compensation may
not be based on surmise, conjecture, or speculation.18 Thus, the Board finds that these medical
reports are insufficient to establish appellant’s claim.
Dr. Garver’s assessment regarding causal relationship is similarly equivocal. In an
October 9, 2017 letter, she opined: “I believe that the jarring injury to the shoulder likely caused
a strain to the rotator cuff and/or biceps tendon.” Dr. Garver did not definitively opine that the
“jarring injury” to appellant’s right shoulder on January 31, 2017 caused or contributed to
appellant’s current right shoulder condition. The Board has found that a physician’s opinion must
13

M.V., Docket No. 18-0884 (issued December 28, 2018).

14

Id.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

16

Ricky S. Storms, 52 ECAB 349, 352 (2001).

17

Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Supra note 15 at Chapter 2.803.4a(6) (August 2012).
18

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

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be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and a
claimant’s employment.19
In an October 16, 2017 report, Dr. Garver again provided an accurate history of the
January 31, 2017 work incident and findings on examination. She noted that appellant had a
“jarring injury to the shoulder at work on [January 31, 2017], resulting in a strain of the rotator
cuff.” Dr. Garver, however, did not explain how appellant’s diagnosed rotator cuff condition was
causally related to the accepted employment incident. Medical evidence that states a condition,
but does not offer any rationalized medical explanation regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.20 The need for
rationalized medical opinion evidence is particularly important in this case because a February 27,
2017 right shoulder MRI scan showed AC degenerative joint disease.21 Dr. Garver did not provide
a discussion of the underlying degenerative condition or provide medical rationale explaining how
appellant’s current right shoulder condition resulted from the January 31, 2017 employment
incident and not the underlying degenerative condition.22
Dr. Garver also provided Form CA-17 reports which did not provide an opinion on causal
relationship. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition is of no probative value on the issue of causal relationship.23
Appellant also submitted Form CA-20 reports dated April 4 to June 13, 2017 where she checked
a box marked “yes” indicating that appellant’s condition had been caused or aggravated by the
employment activity. She notated: “jarring injury caused labral injury.” The Board has held that
when a physician’s opinion on causal relationship consists only of responding “yes” to a form
question, without explanation or rationale, that opinion is of diminished probative value and is
insufficient to establish a claim.24
The remaining medical evidence of record also fails to establish appellant’s claim. The
diagnostic examination reports, including the February 1, 2017 right shoulder x-ray examination
and February 27, 2017 right shoulder MRI scan do not contain an opinion on the causal
relationship between appellant’s diagnosed right shoulder conditions and the accepted January 31,
2017 employment incident and therefore lack probative value.25 In addition, the February 1, 2017
19

M.V., supra note 13.

20

D.H., Docket No. 17-1913 (issued December 13, 2018); J.F., Docket No. 09-1061 (issued November 17, 2009);
A.D., 58 ECAB 149 (2006).
21

See supra note 15.

22

W.S., Docket No. 17-1769 (issued July 26, 2018); S.W., Docket No. 08-2538 (issued May 21, 2009).

23

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

24
M.E., Docket No. 18-0330 (issued September 14, 2018); D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty,
54 ECAB 340 (2003).
25

The Board has held that reports of diagnostic tests lack probative value as they fail to provide an opinion on the
causal relationship between appellant’s employment duties and the diagnosed conditions. See M.S., Docket No. 181280 (issued March 12, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

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urgent care treatment records are of no probative value because a nurse practitioner is not
considered a “physician” as defined under FECA.26 The physical therapy treatment records are
similarly insufficient to establish entitlement to FECA benefits.27
On appeal counsel contends that OWCP did not reference the photographs of the work
place conditions that caused appellant’s injury. The Board notes, however, that the January 31,
2017 employment incident has been accepted and is therefore not in dispute. The issue is whether
the accepted January 31, 2017 employment incident caused or contributed to appellant’s right
shoulder condition. Counsel argues that there is no medical evidence in the record to contradict
Dr. Garver’s opinion on causal relationship. For the reasons explained above, however,
Dr. Garver’s medical reports are insufficient to establish that appellant’s right shoulder condition
was causally related to the accepted incident. Causal relationship is a medical issue and the
medical evidence generally required to establish causal relationship is rationalized medical opinion
evidence.28 Because appellant has failed to provide such evidence, he has not met his burden of
proof to establish his traumatic injury claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted January 31, 2017 employment incident.

26

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316,
320 n.11 (2006). A report from a nurse practitioner or physical therapist will be considered medical evidence if
countersigned by a qualified physician. Supra note 15 at Chapter 2.805.3a(1).
27

Id.

28

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the November 29, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 18, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Round Brook, NJ, Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0885
Issued: November 25, 2016

Case Submitted on the Record

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

JURISDICTION
On March 23, 2016 appellant, through counsel, filed a timely appeal from a February 18,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met his burden of proof to establish a right knee injury
causally related to the accepted June 10, 2014 employment incident.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 11, 2014 appellant, then a 56-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on June 10, 2014 his right knee buckled while he was
descending stairs on the way down from the second floor bathroom. He stopped work on
June 11, 2014. Appellant’s supervisor noted that appellant had previous problems with his
knees.3
Appellant submitted the first page of Form CA-16 authorization for examination and/or
treatment along with June 10, 2014 patient discharge instructions for a knee sprain from Robert
Wood Johnson University Hospital Somerset.
In a June 16, 2014 letter, OWCP advised appellant of the deficiencies in his claim and
provided him the opportunity to submit additional factual and medical evidence. This included a
detailed narrative medical report from his treating physician which contained a history of the
injury and a medical explanation with objective evidence of how the reported work incident
caused or aggravated the claimed condition. He was afforded 30 days to submit such evidence.
In response, OWCP received medical notes from Dr. Stephen Schneider, a Boardcertified orthopedic surgeon. In a June 16, 2014 note, Dr. Schneider reported that appellant had
a fall at work on June 10, 2014 when his right knee spontaneously gave out. He reviewed x-rays
and indicated that appellant probably had an exacerbation of pain due to the buckling and fall
over some osteoarthritic changes in his knee. In the June 23, 2014 note, Dr. Schneider indicated
that appellant had significant osteoarthritic changes in the patellofemoral joint. In a June 23,
2014 physical therapy referral form and June 30, 2014 authorization request, he diagnosed a right
knee sprain. In a July 14, 2014 duty status report (Form CA-17), Dr. Schneider indicated that on
June 10, 2014 appellant was walking down stairs from a bathroom and felt right knee pop. He
diagnosed right knee pain and opined that appellant was temporarily disabled.
A July 11, 2014 physical therapy evaluation was also submitted.
By decision dated July 24, 2014, OWCP denied the claim as the medical evidence did not
establish that the claimed right knee condition was related to the June 10, 2014 work incident.
On January 28, 2015 OWCP received a January 19, 2015 request for reconsideration. In
a January 19, 2015 brief, counsel argued that the newly submitted evidence supported causal
relationship and provided a discussion on the medical evidence.
In a November 5, 2014 report, Dr. Hari P. Bezwada, a Board-certified orthopedic
surgeon, indicated that he initially saw appellant in December 2013 for mild degenerative
changes in his knees and was treated conservatively. He reported that appellant had a prior
history of surgical arthroscopy on both knees in 2009. In September 2014, appellant returned as
a result of a June 10, 2014 injury to his right knee while climbing stairs to use the bathroom at
work. Dr. Bezwada noted appellant’s medical course along with his September 30, 2014
3

The employing establishment indicated that appellant had been on light duty since December 19, 2013 as an
accommodation for nonwork-related medical conditions.

2

examination findings and diagnosed mild right knee arthritis with probable medical meniscus
tear and possible medial collateral ligament sprain. Appellant underwent a magnetic resonance
imaging (MRI) scan on October 7, 2014, which was consistent with a medial meniscus tear. On
November 3, 2014 he underwent right knee surgical arthroscopy, which revealed medial
meniscal tear, osteochondral defect of the medical femoral condyle, a lateral meniscal tear and
osteochondral defect of the lateral femoral condyle, and osteochondral defect with delaminating
cartilage in the patella. Dr. Bezwada advised that while it was likely appellant had some baseline
arthritis, his symptoms were relatively mild and were treated with conservative measures.
Subsequent to the June 10, 2014 injury, appellant had progressive mechanical symptoms
involving the right knee, which were of limiting and disabling nature. Dr. Bezwada opined that
appellant sustained a work-related injury involving the right knee, which included a medical
arthroscopy, which revealed medial meniscal tear, lateral meniscal tear, and osteochondral
defects.
In his October 7, 2014 report, Dr. Bezwada indicated that appellant’s MRI scan of the
right knee showed a medial meniscus tear and surgical arthroscopy was therefore recommended.
He noted that appellant’s mechanical symptoms were problematic, painful, and that he was
severely limited. Dr. Bezwada opined that those symptoms were related to appellant’s fall as he
has had those symptoms since his fall at work.
In a December 19, 2013 prescription note, Dr. Bezwada indicated that appellant had
severe limitations due to knee arthritis and set forth work restrictions.
Reports from Dr. Schneider were also received. In a June 23, 2014 duty status report, he
provided an unreadable diagnosis and opined that appellant was temporarily disabled. Reports
dated August 11 and 14, 2014 concerned the need for an additional MRI scan.
Also received were copies of physical therapy reports, an October 3, 2014 MRI scan of
the right knee, and a November 3, 2014 operative report for right knee medical meniscus tear
with an admission form diagnosing right knee medial meniscus tear.
By decision dated April 20, 2015, OWCP denied modification of its July 24, 2014
decision. It found that the medical evidence submitted was insufficient to establish causal
relation.
On November 20, 2015 OWCP received appellant’s November 15, 2015 request for
reconsideration along with counsel’s brief in support of reconsideration.
New evidence included a partial October 23, 2014 Equal Employment Opportunity
(EEO) investigative affidavit completed by appellant, an April 21, 2015 MRI scan report, a
picture of a handrail, a copy of the June 10, 2014 accident report, hospital records of
November 3, 2014 and May 27, 2015 for right knee medial meniscus tear were submitted along
with a November 3, 2014 and May 27, 2015 operative report for same diagnosis, and a June 10,
2014 emergency room report with discharge diagnosis of knee sprain.
In an April 28, 2015 report, Dr. Bezwada indicated that appellant sustained a workrelated injury involving his right knee. He noted the history of injury as appellant climbing stairs
to use the bathroom and his right knee buckled, at which point appellant fell onto his buttock.
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Dr. Bezwada further noted that, as a result of this work injury, appellant underwent surgical
intervention with both surgical arthroscopy and then viscosupplementation. He indicated that
further treatment was medically necessary and appropriate.
In an August 6, 2015 report, Dr. Bezwada indicated that he reviewed appellant’s medical
records, including his operative reports and follow-up visits by Dr. Gregory J. Lane, a Boardcertified orthopedic surgeon. He indicated that appellant’s work injury occurred on June 10,
2014 while he was descending the staircase from the second floor bathroom. He described how
appellant used both handrails on his way down until the handrail on one side ended about
halfway down. While holding on to just one handrail, appellant’s right knee buckled, causing
him to fall down onto the stairs, landing on his buttocks. He was removed from the stairs by
emergency personnel and taken to the emergency room. Dr. Bezwada provided a history of
appellant’s medical course. He summarized that appellant had previous treatment involving his
knees, with the development of some degree of chondrosis and degenerative meniscal problems
involving the knees. Dr. Bezwada previously underwent conservative treatment and was doing
well until the June 10, 2014 work-related incident, which he opined permanently aggravated the
preexisting knee conditions since appellant’s symptoms persisted and were problematic and
required additional treatments and repeat surgical arthroscopy.
In an April 5, 2011 report, Dr. Lane reported that appellant’s right knee pain was causally
related to a fall of March 4, 2009.
By decision dated February 18, 2016, OWCP denied modification of its prior decision. It
found the medical evidence of record insufficient to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while 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.4 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.5
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that he actually
experienced the employment incident that is alleged to have occurred.6 An employee has not
met his burden of proof in establishing the occurrence of an injury when there are such
4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001).

4

inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.7 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.8
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.9 Neither the fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.10
ANALYSIS
Appellant filed a traumatic injury claim alleging his right knee condition and subsequent
surgeries resulted when he was descending stairs from the second floor bathroom and his knee
gave out on him on June 10, 2014. OWCP accepted that the June 10, 2014 incident occurred as
alleged, but denied the claim as it found that the diagnoses of record were not causally related to
the accepted incident.
The Board finds that appellant has not met his burden of proof to establish a right knee
injury causally related to the June 10, 2014 work incident.
Several medical reports from Dr. Schneider were received. In his June 16, 2014 report,
he reported that appellant had a fall at work on June 10, 2014 when his right knee spontaneously
gave out. While Dr. Schneider reviewed x-rays and indicated that appellant probably had an
exacerbation of pain due to the buckling and fall over some osteoarthritic changes in his knee, he
did not diagnose any condition. On the June 30, 2014 Form CA-16 and in a July 14, 2014 duty
status report, he diagnosed right knee pain. However, Dr. Schneider’s description of pain in his
June 16, 2014 report and diagnosis of right knee pain on the CA-16 form is a description of a
symptom rather than a clear diagnosis of a medical condition.11 In the June 23, 2014 physical
therapy referral form and June 30, 2014 authorization request, he diagnosed a right knee sprain.
However, Dr. Schneider provided no medical rationale as to how the June 10, 2014 work
7

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

8

Deborah L. Beatty, 54 ECAB 340 (2003).

9

Solomon Polen, 51 ECAB 341 (2000).

10

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

11

C.B., Docket No. 09-2027 (issued May 12, 2010); Robert Broom, 55 ECAB 339 (2004). (The Board has
consistently held that pain is a symptom rather than a compensable medical diagnosis).

5

incident caused the right knee sprain. Without explaining how physiologically the act of
descending stairs caused or contributed to the diagnosed condition, Dr. Schneider’s diagnosis is
of limited probative value.12 The other reports from Dr. Schneider fail to diagnose a medical
condition. Therefore, Dr. Schneider’s reports are insufficient to establish a medical diagnosis in
connection with the injury.
Several reports were received from Dr. Bezwada. In his November 5, 2014 and April 28,
2015 reports, Dr. Bezwada provides an inaccurate history of injury. Appellant indicated on his
CA-1 form that he was descending stairs from the second floor bathroom when his knee gave out
on him. In his November 5, 2014 report, Dr. Bezwada indicates that appellant was climbing
stairs, instead of descending. In his April 28, 2015 report, he again erroneously noted the history
of injury as appellant climbing stairs to use the bathroom when his right knee buckled.
Dr. Bezwada additionally advised that appellant fell onto his buttock. However, it does not
appear from the record that appellant indicated that he fell on his buttocks. The Board has held
that medical reports must be based on a complete and accurate factual and medical background.
Medical opinions based on an incomplete or inaccurate history are of limited probative value.13
Dr. Bezwada did not provide a well-rationalized medical opinion explaining how appellant’s
right knee condition was causally related to his accepted employment incident of descending
stairs. As his description of the June 10, 2014 incident is inaccurate, his opinion pertaining to the
causal relationship of appellant’s right knee condition is of little probative value.14 Therefore,
Dr. Bezwada’s reports are insufficient to establish causal relationship.
In his August 6, 2015 report, Dr. Bezwada indicated an accurate history of the June 10,
2014 work incident as he noted that it occurred while appellant was descending the staircase
from the second floor bathroom. He indicated that appellant had previous treatment involving
his knees, with the development of some degree of chondrosis, and degenerative meniscal
problems involving the knees. Dr. Bezwada reported that appellant previously underwent
conservative treatment and was doing well until the June 10, 2014 work-related incident, when
he started to have increased symptoms. He noted appellant’s medical course, including a
recurrent meniscal tear in April 2015. Dr. Bezwada opined that the June 10, 2014 work incident
permanently aggravated the preexisting knee conditions since appellant’s symptoms persisted,
were problematic, and required additional treatments and repeat surgical arthroscopy. However,
he provided no rationalized explanation supported by objective findings to establish how the
recurrent meniscal tear or claimed aggravation were caused or aggravated by the June 10, 2014
work incident. Dr. Bezwada only notes appellant’s subjective complaints of increased pain and
symptoms. He does not distinguish the effects of appellant’s preexisting bilateral knee
conditions from the claimed work-related aggravation or explain how the June 10, 2014 work
incident caused the alleged aggravation. This report therefore is insufficient to establish that
appellant’s right knee conditions are causally related to the June 10, 2014 work incident.15
12

See Lee R. Haywood, 48 ECAB 145 (1996).

13

C.L., Docket No. 14-1585 (issued December 16, 2014); J.R., Docket No. 12-1099 (issued November 7, 2012);
Douglas M. McQuaid, 52 ECAB 382 (2001).
14

See F.H., Docket No. 16-0204 (issued April 8, 2016).

15

T.W., Docket No. 15-1603 (issued October 20, 2015).

6

The additional medical evidence of record is of limited probative value. The MRI scan
reports, hospital and surgical reports, while diagnosing a right knee condition, fail to offer a
medical opinion as to how the reported work incident caused or aggravated a medical condition.
The Board has held that 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.16 A
medical opinion is especially needed in this case as the record reflects that appellant has
preexisting knee conditions. Thus, these reports are insufficient to establish appellant’s claim.
Also of record are reports and records from physical therapists. However, physical
therapists are not considered physicians under FECA and are not competent to render a medical
opinion.17 Thus, these reports are insufficient to establish appellant’s claim.
Dr. Lane’s April 5, 2011 report relating appellant’s right knee pain to a fall of March 4,
2009, predates the established June 10, 2013 work incident, and is irrelevant to this claim.
The nonmedical evidence, such as counsel’s statements regarding the probative value of
the medical evidence, the EEO report, and pictures of a handrail, are of no probative value.
Causal relationship is a medical question that must be established by probative medical opinion
from a physician.18
In this case, the Board finds that none of the medical evidence appellant submitted
constitutes rationalized medical evidence, based upon a specific and accurate history of
employment conditions, which are alleged to have caused or exacerbated his medical condition.19
Accordingly, the Board finds that he has not established causal relationship between the work
incident and his diagnosed conditions.
On appeal, counsel asserts that appellant’s statement of factual and legal arguments
challenging and disagreeing with OWCP’s decision would be forthcoming. However, the Board
has not received such a document. As found above, appellant has not established causal
relationship between the June 10, 2014 work incident and his diagnosed conditions. None of the
medical evidence he submitted constituted rationalized medical evidence, based upon a specific
and accurate history of employment conditions, which are alleged to have caused or exacerbated
his medical condition.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.20 An award of compensation may not
be based on surmise, conjecture, speculation, or on the employee’s own belief of causal relation.
Appellant’s belief that the June 10, 2014 employment incident caused his medical injury is not in
16

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
17

G.G., 58 ECAB 389 (2007). See 5 U.S.C. § 8101(2).

18

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

19

Patricia J. Bolleter, 40 ECAB 373 (1988).

20

Daniel O. Vasquez, 57 ECAB 559 (2006).

7

question, but that belief, however, sincerely held, does not constitute the medical evidence
necessary to establish causal relationship. To establish a firm medical diagnosis and causal
relationship, appellant must submit a physician’s report in which the physician reviews those
factors of employment alleged to have caused his condition and, taking these factors into
consideration, as well as findings upon examination and his medical history, explain how these
employment factors caused or aggravated any diagnosed condition, and present medical rationale
in support of his opinion.21
Finally, the Board notes that the employing establishment executed a Form CA-16 on
June 11, 2014 authorizing medical treatment. The Board has held that where an employing
establishment properly executes a Form CA-16, which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.22 Although OWCP denied appellant’s claim for an injury, it did
not address whether he is entitled to reimbursement of medical expenses pursuant to the Form
CA-16. The Board finds that, upon return of the case record, this matter should be addressed.23
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a right knee
injury causally related to the accepted June 10, 2014 employment incident.

21

C.B., supra note 11; S.E., Docket No. 08-2214 (issued May 6, 2009).

22

See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. §§ 10.300 and 10.304.

23

See T.K., Docket No. 16-0813 (issued July 20, 2016).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 18, 2016 is affirmed.
Issued: November 25, 2016
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Florence, AZ, Employer
__________________________________________

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

Docket No. 21-1413
Issued: March 28, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 20, 2021 appellant filed a timely appeal from an April 20, 2021 merit
decision and a May 7, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award; and
1
The Board notes that, following the May 7, 2021 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.
2

5 U.S.C. § 8101 et seq.

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 8, 2019 appellant, then a 28-year-old deportation officer, filed a traumatic injury
claim (Form CA-1) alleging that she developed cysts on both wrists on July 5, 2019 during
physical training while in the performance of duty.3 OWCP accepted the claim for bilateral carpal
tunnel syndrome and left wrist ganglion and resulting surgery. It authorized wage-loss
compensation on the supplemental rolls beginning on June 9, 2020. Appellant returned to fulltime light-duty work on July 12, 2020 and full-duty work on September 13, 2020.
On November 25, 2019 appellant underwent electromyogram and nerve conduction
velocity (EMG/NCV) studies of the upper extremities, which exhibited no electrodiagnostic
evidence of neuropathy or radiculopathy.
On December 2, 2019 appellant underwent a magnetic resonance imaging (MRI) scan of
her left wrist, which demonstrated small synovial cyst and capsular defect of the radiocarpal
articulation without vascular involvement, and a tiny partial tear or degeneration of the triangular
fibrocartilage complex.
On June 9, 2020 appellant underwent OWCP-authorized bilateral carpal tunnel surgical
releases and left snuffbox ganglion excision.
On July 29, 2020 appellant underwent an MRI scan of her right wrist due to a right wrist
lump following her carpal tunnel release surgery. This scan demonstrated joint effusion.
In a report dated October 9, 2020, appellant’s attending physician, Dr. Joseph L. Haber, a
Board-certified hand and plastic surgeon, found that she had reached maximum medical
improvement (MMI) with excellent sensation of the digits, a negative Tinel’s sign over the median
nerves, and intact sensation. He reported that appellant had zero percent disability.
On March 9, 2021 appellant filed a claim for (Form CA-7) for a schedule award. By letter
dated March 15, 2021, she noted that she received a response to her Form CA-7, that she would
need to be seen by a doctor for an impairment rating and requested approval to see a different
doctor.
In a March 15, 2021 development letter, OWCP requested that appellant provide an
impairment rating using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).4 It afforded her 30 days to submit
additional medical evidence in support of her schedule award claim.

3

In her April 11, 2020 response to an OWCP development questionnaire, appellant clarified that her claim was for
an occupational disease developing from June through July 2019.
4

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

2

In a March 22, 2021 report, Dr. Haber found that appellant had no permanent impairment.
In a letter of even date, appellant requested an evaluation by another physician.
By decision dated April 20, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
On April 25, 2021 appellant requested reconsideration of the April 20, 2021 decision. She
asserted that Dr. Haber failed to consider the fluid in her right wrist, her pain, and her inability to
perform common tasks such as pushups as well as gripping and carrying heavy objects.
By decision dated May 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA 5 and its implementing regulations 6 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. OWCP has adopted the
A.M.A., Guides as the uniform standard applicable to all claimants. As of May 1, 2009, the sixth
edition of the A.M.A., Guides is used to calculate schedule awards. 7
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in A.M.A.,
Guides, Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying
relevant text.8 In Table 15-23, grade modifier levels (ranging from zero to four) are described for
the categories of test findings, history, and physical findings. The grade modifier levels are
averaged to arrive at the appropriate overall grade modifier level and to identify a default rating
value. The default rating value may be modified up or down based on functional scale, an
assessment of impact on daily living activities (QuickDASH).9
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 10 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence, which
shows that the impairment has reached a permanent and fixed state and indicates that the date on
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5.a. (March 2017); Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides 449.

9

Id. at 448-49.

10

J.P., Docket No. 21-0801 (issued December 22, 2021); N.S., Docket No. 21-0508 (issued September 22, 2021);
Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

3

which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be
visualized on review, and computes the percentage of impairment in accordance with the A.M.A.,
Guides.11 Its procedures further provide that, if a claimant has not submitted a permanent
impairment evaluation, it should request a detailed report that includes a discussion of how the
impairment rating was calculated. 12 If the claimant does not provide an impairment evaluation
and there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award. 13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedu le award.
OWCP, on March 15, 2021, requested that appellant submit a permanent impairment
evaluation from her physician addressing the extent of any employment-related permanent
impairment using the A.M.A., Guides. Appellant did not, however, submit any medical evidence
establishing permanent impairment.
In his October 9, 2020 report, Dr. Haber found that appellant had reached MMI with
excellent sensation of the digits, a negative Tinel’s sign over the median nerves, and intact
sensation. He did not report any permanent impairment.
As noted above, appellant must submit an evaluation from a physician that includes a
description of impairment in sufficient detail so that the claims examiner and others reviewing the
file will be able to clearly visualize the impairment with its resulting restrictions and limitations. 14
As she has not submitted any medical evidence supporting permanent impairment of a scheduled
member or function of the body due to her accepted conditions, the Board finds that she has not
met her burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

11

Supra note 7 at Chapter 2.808.5 (March 2017).

12

Id. at Chapter 2.808.6a. (March 2017).

13

Id. at Chapter 2.808.6c. (March 2017).

14

See D.J., Docket No. 20-0017 (issued August 31, 2021); B.V., Docket No. 17-0656 (issued March 13, 2018);
C.B., Docket No. 16-0060 (issued February 2, 2016); P.L., Docket No. 13-1592 (issued January 7, 2014).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 15
To require OWCP to reopen a case for merit review, pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.16
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 17 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 18 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request fo r reconsideration without
reopening the case for review on the merits. 19
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
OWCP previously denied her claim because the medical evidence of record was
insufficient to establish permanent impairment of scheduled member or function of the body,
warranting a schedule award. Thus, the Board must determine if appellant presented sufficient
evidence or argument regarding her schedule award claim to warrant a merit review pursuant to
5 U.S.C. § 8128(a).20
In her April 25, 2021 reconsideration request, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law and did no t advance a new and relevant
15

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
16

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
17

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
18

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

19

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

20

See S.M., Docket No. 21-0392 (issued August 12, 2012); H.T., Docket No. 20-1318 (issued April 27, 2021).

5

legal argument not previously considered by OWCP. Accordingly, the Board finds that appellant
is not entitled to a review of the merits based on the first and second above -noted requirements
under 20 C.F.R. § 10.606(b)(3).21
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. With her reconsideration request, appellant submitted a
statement noting her disagreement with Dr. Haber’s October 9, 2020 report finding no evidence of
permanent impairment. The underlying issue of the present case is whether appellant has
submitted sufficient medical evidence to establish impairment of scheduled member o r function
of the body. The Board has held that the submission of evidence or argument which does not
address the particular issue involved does not constitute a basis for reopening a case. 22 Thus, she
is not entitled to a review of the merits of her claim based on the third requirement under 20 C.F.R.
§ 10.606(b)(3). 23
The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of her claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.24
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award. The
Board further finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

21

Supra note 15.

22

A.M., Docket No. 20-1417 (issued July 30, 2021); E.J., Docket No. 19-1509 (issued January 9, 2020); M.K.,
Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).
23

Supra note 15; see T.H., Docket No. 18-1809 (issued May 23, 2019); Johnny L. Wilson, Docket No. 98-2536
(issued February 13, 2001).
24

See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020);
Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening
the case for a review on the merits).

6

ORDER
IT IS HEREBY ORDERED THAT the April 20 and May 7, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, 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
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Costa Mesa, CA, Employer
__________________________________________

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

Docket No. 18-1102
Issued: February 22, 2019

Case Submitted on the Record

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

JURISDICTION
On May 7, 2018 appellant filed a timely appeal from a March 2, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision, dated May 15, 2017, to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 2, 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 18, 2013 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on October 2, 2013 she sustained a left foot injury while pushing
a dolly while in the performance of duty. She noted that she felt something stretch and pain in her
left foot/ankle while walking on the edge of cement and grass. Appellant did not stop work
following the injury, but worked a limited-duty position before later returning to full-duty work.
OWCP accepted the claim for left foot sprain.
In a December 20, 2013 report, Dr. Hosea Brown, III, a treating Board-certified internist,
diagnosed left knee and ankle sprains, left knee internal derangement, left knee medial and lateral
meniscal tears, and left ankle ligament tear, which he attributed to the October 2, 2013 work injury.
He noted that appellant had related that the injury occurred when she attempted to stop a 20-pound
tub of mail from falling off a dolly and she developed pain and discomfort in her left ankle and
knee while trying to stabilize herself on the dolly. Dr. Brown opined that this awkward
biomechanical maneuver of stabilizing herself and trying to stop mail from falling of the dolly
caused increased stress to her left ankle and knee, resulting in injury.
On January 10, 2014 appellant filed a claim for intermittent wage-loss compensation (Form
CA-7) for the period December 31, 2013 to January 10, 2014.
Dr. Brown, in a January 22, 2014 report reiterated appellant’s diagnoses and his opinion
that these conditions were due to the awkward biomechanical maneuver she used in trying to
stabilize herself while at the same time trying to prevent mail from falling off a dolly.
OWCP referred appellant for a second opinion evaluation with Dr. Steven M. Ma, a Boardcertified orthopedic surgeon, on January 29, 2014. In a report dated February 20, 2014, Dr. Ma,
based upon a review of the statement of accepted facts, medical records, and physical examination,
diagnosed left knee sprain and left ankle sprain due to the October 2, 2013 work injury. He opined
that, if diagnostic testing established ligament tears, they were unrelated to either her work duties
or her October 2, 2013 work injury. Dr. Ma observed that appellant’s work injury was relatively
minor and she had fully recovered as of November 19, 2013, based on medical records he
reviewed. He further found that she sustained no aggravation of any condition and that she was
capable of working full duty from December 31, 2013 to January 10, 2014.
By decision dated April 1, 2014, OWCP denied appellant’s claim for wage loss from
December 30, 2013 to March 21, 2014 and continuing due to the accepted left ankle sprain.
By letter dated April 1, 2014, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits, finding that she no longer had any disability or residuals due
to her accepted right ankle sprain.

2

By decision dated May 23, 2014, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective May 23, 2014, finding that the weight of the medical opinion
evidence rested with the report of the second opinion examiner, Dr. Ma, who concluded that there
was no employment-related disability or residuals causally related to the October 2, 2013 work
injury. It discounted Dr. Brown’s opinion as it found that his opinion was based on an inaccurate
history of the injury and lacked sufficient medical rationale.
By a form dated June 6, 2014 and postmarked June 9, 2014, appellant requested an oral
hearing before an OWCP hearing representative, which was held on January 15, 2015. By
decision dated April 21, 2015, the hearing representative found that OWCP had met its burden of
proof to terminate her wage-loss compensation and medical benefits, effective May 23, 2014.
On August 5, 2015 appellant requested reconsideration and submitted a July 21, 2015
report from Dr. Brown in support of her request.
In his July 21, 2015 report, Dr. Brown requested reversal of OWCP’s termination decision
and requested that the acceptance of the claim be expanded to include left knee anterior cruciate
ligament tear, medial anterior meniscal tear, and aggravation of left knee chondromalacia as
causally related to the October 2, 2013 work injury. He referenced medical reports, diagnostic
testing, and her description of the injury in support of the request.
By decision dated August 26, 2015, OWCP denied modification of its prior decision,
finding that the weight of the medical evidence rested with the report of the second opinion
examiner, Dr. Ma, who concluded that there was no employment-related disability or residuals
causally related to the October 2, 2013 work injury. It explained that the medical evidence
submitted by appellant was insufficient to establish that she had any continuing disability or
residuals due to her accepted left ankle sprain. OWCP further found the medical evidence
insufficient to warrant expansion of the acceptance of her claim to include left knee anterior
cruciate ligament tear, medial anterior meniscal tear, and aggravation of left knee chondromalacia
as causally related to the October 2, 2013 work injury.
OWCP received reports dated September 23, 2015 from Dr. Brown repeating his opinion
and diagnoses from prior reports. In a letter dated February 15, 2016, appellant requested
reconsideration.
On February 14, 2017 appellant requested reconsideration and subsequently submitted a
January 27, 2016 report from Dr. Brown, reiterating his opinion and diagnoses.3
By decision dated May 10, 2016, OWCP denied modification of its prior decision, finding
Dr. Ma’s opinion continued to constitute the weight of the medical opinion evidence as it was well
rationalized. It found that Dr. Brown’s reports contained no rationale explaining why appellant
continued to require medical treatment for her accepted injury.

3

On February 18, 2016 appellant filed an appeal to the Board. On June 21, 2016 she requested that her appeal to
the Board be dismissed. The Board granted appellant’s request on June 21, 2016. Order Dismissing Appeal,
Docket No. 16-0646 (issued June 21, 2016).

3

In progress reports dated May 11 and July 20, 2016, Dr. Brown provided examination
findings and diagnosed left knee anterior cruciate ligament tear, medial anterior meniscal tear, left
ankle tibiocalcaneal, calcaneofibular, and talofibular ligament tears, and left foot sprain.
In an August 18, 2016 report, Dr. Stephen C. Wan, a treating podiatrist, provided
examination findings and noted a history of left ankle and foot sprains.
In reports dated August 30 and November 11, 2016, Dr. Charles Herring, a treating Boardcertified orthopedic surgeon, noted an injury date of October 2, 2013 and diagnosed left knee
anterior cruciate ligament tear, chondromalacia, and medial anterior horn meniscal tear. In a
September 27, 2016 letter, he opined that appellant sustained left knee and ankle conditions as the
result of the traumatic October 2, 2013 employment injury. Dr. Herring opined that her preexisting
degenerative condition had been permanently aggravated by the October 2, 2013 work injury. He
disagreed with Dr. Ma on whether the injury caused a torn ligament. In support of his opinion,
Dr. Herring noted the lack of any history of a prior left knee injury and the fact that appellant
continued to have positive joint effusion three years after the work injury.
Dr. Wan, in September 22, 2016 report, provided examination findings and diagnosed
chronic left ankle sprain involving the anterior distal syndesmotic ligament/distal anterior
tibiofibular ligament. He reviewed Dr. Ma’s report and opined that Dr. Ma missed the mechanism
of injury.
Dr. Brown, in an October 26, 2016 report, provided examination findings and diagnosed
chronic left ankle sprain, left ankle multiple ligament dysfunctions, left knee anterior cruciate
ligament tear, left knee medial anterior horn meniscal tear, and left knee chondromalacia. He
referenced treatment by Dr. Wan and Dr. Herring, including diagnoses from their reports.
On January 25, 2017 Dr. Brown requested OWCP expand the acceptance of appellant’s
claim to include the conditions of chronic left ankle sprain, left ankle multiple ligament
dysfunctions, left knee anterior cruciate ligament tear, left knee medial anterior horn meniscal tear,
and temporary aggravation of left knee chondromalacia as due to the October 2, 2013 work injury.
He further disagreed with the termination of her medical benefits as she continued to require
medical treatment for injuries sustained as the result of the October 2, 2013 work injury.
Moreover, Dr. Brown claimed that there was an unresolved conflict in medical opinion between
Dr. Ma, serving as the second opinion physician, and himself regarding the necessity of future
medical care. He reported that, in accordance with “FECA Guidelines,” OWCP should refer her
for a referee examination to resolve this conflict.
By decision dated May 15, 2017, OWCP denied modification of its prior decision, as it
found that the weight of the medical opinion evidence continued to rest with Dr. Ma’s wellrationalized opinion. It further found that the medical evidence appellant submitted was
insufficiently rationalized to support her claim of continuing residuals or disability or to warrant
expansion of her claim or to create a conflict with Dr. Ma’s opinion.
On August 7, 2017 appellant requested reconsideration and submitted additional reports
from Dr. Brown.

4

Dr. Brown in a letter dated July 17, 2017, noted his disagreement with OWCP’s decision
denying modification. He again opined that the medical evidence was sufficient to establish that
the October 2, 2013 work injury caused additional conditions from which appellant had not
recovered and which required further medical treatment. Dr. Brown also claimed that there was a
conflict in medical opinion between Dr. Ma, serving as the second opinion physician, and her
treating physicians regarding the necessity of future medical care. He reiterated his request to refer
appellant for a referee examination to resolve this conflict.
In a July 17, 2017 progress report, Dr. Brown provided examination findings and diagnoses
of chronic left ankle sprain, multiple left ankle ligament dysfunctions, temporary aggravation of
left knee chondromalacia, left knee medial anterior meniscal tear, and left knee anterior cruciate
ligament tear.
By decision dated November 3, 2017, OWCP denied reconsideration of the merits of
appellant’s claim as it found that the medical evidence submitted was cumulative and repetitious.
In a letter dated February 5, 2018 appellant, through a representative, requested
reconsideration contending that the weight of the medical opinion evidence rested with Dr. Brown,
appellant’s treating physician or in the alterative that there was an unresolved conflict in the
medical opinion evidence between Dr. Brown and Dr. Ma. Appellant also contended that her
claim should be upgraded or expanded to include left ankle and knee conditions. No new evidence
accompanied the reconsideration request.
By decision dated March 2, 2018, OWCP denied reconsideration. It found that appellant
failed to submit new and relevant evidence or argument in support of her claim. OWCP noted that
argument regarding an unresolved conflict in the medical opinion evidence had been previously
raised and considered.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review of
an OWCP decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.6 When a claimant fails to meet one of the

4

5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

5

above standards, OWCP will deny the application for review without reopening the case for a
review on the merits.7
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.8 He or she needs only
to submit relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an
OWCP decision denying merit review, the function of the Board is to determine whether OWCP
properly applied the standards set for at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.10
The Board has held that the submission of evidence which repeats or duplicates evidence
already of record does not constitute a basis for reopening a case. The Board has also held that the
submission of evidence which does not address the particular issue involved does not constitute a
basis for reopening a case. While the reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention does
not have a reasonable color of validity.11
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant did not show that OWCP erroneously applied or interpreted
a specific point of law. The representative argued that the weight of the medical opinion evidence
rested with Dr. Brown, appellant’s treating physician or that in the alternative there was an
unresolved conflict in the medical opinion evidence between Dr. Brown and Dr. Ma. He further
contended that OWCP erred in failing to expand acceptance of appellant’s claim to include
additional conditions. These arguments were previously raised and considered by OWCP in its
prior decisions. Evidence or argument that repeats or duplicates evidence previously of record has
no evidentiary value and does not constitute a basis for reopening a case.12 As such, appellant is
not entitled to a review of the merits of her claim based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).
Appellant failed to submit any relevant and pertinent new evidence with the February 5,
2018 request for reconsideration. Since issuing its November 3, 2017 nonmerit decision, OWCP
did not receive any additional evidence relevant to whether she continued to have residuals and
disability due to her accepted employment injury, or that her claim should be expanded to include
7

Id. at § 10.608(b).

8

J.F., Docket No. 17-1508 (issued March 28, 2018).

9

Id.; see also Mark H. Dever, 53 ECAB 710 (2002).

10

Supra note 8; Annette Louise, 54 ECAB 783 (2003).

11

K.T., Docket No. 18-0193 (issued May 21, 2018); M.E., 58 ECAB 694 (2007).

12

See M.G., Docket No, 18-0654 (issued October 17, 2018); D.K., 59 ECAB 141 (2007).

6

additional medical conditions. Because appellant did not provide any relevant and pertinent new
evidence, she is not entitled to a review of the merits based on the third requirement under
section 10.606(b)(3).13
As appellant’s reconsideration request did not meet any of the three requirements
enumerated under section 10.606(b)(3), the Board finds that OWCP properly denied the request
for reconsideration without reopening the case for a review on the merits.14
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 22, 2019
Washington, DC

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

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

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

13

20 C.F.R. § 10.606(b)(3)(iii). See K.C., Docket No. 16-1526 (issued June 4, 2018).

14

C.F., Docket No. 18-0360 (issued July 19, 2018); R.C., Docket No. 17-0595 (issued September 7,
2017); M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE NAVY, NAVAL SEA
)
SYSTEMS COMMAND, Keyport, WA, Employer )
__________________________________________ )
E.S., Appellant

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

Docket No. 15-236
Issued: March 20, 2015

Case Submitted on the Record

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

JURISDICTION
On November 10, 2014 appellant filed a timely appeal from an October 28, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish hearing loss due to his
employment.
FACTUAL HISTORY
On April 4, 2014 appellant, then a 70-year-old retired planner and estimator, filed a claim
for compensation alleging that he developed bilateral hearing loss due to his federal employment.
He became aware of his hearing loss on September 1, 2012 and realized it was causally related to
1

5 U.S.C. § 8101 et seq.

his employment on the same day.
September 30, 1997.

Appellant retired from employing establishment on

Accompanying the claim, appellant provided responses to a hearing loss check list. He
noted that he had no prior history of hearing loss and no hobbies that involve loud noise.
Appellant noted that he was last exposed to hazardous noise on September 30, 1997 and that he
worked around loud noise. He submitted an audiogram dated April 4, 2014, signed by an
audiologist.
By letter dated April 16, 2014, OWCP advised appellant of the type of evidence needed
to establish his claim. It also requested that the employing establishment address appellant’s
workplace noise exposure.
Appellant responded that from 1964 to 1968 he was in the navy and worked as an
electronics repair technician and was exposed to noise from high frequency radar rooms and air
conditioning. No hearing protection was worn. From 1969 to 1979 appellant worked for the
employing establishment as an electronics mechanic and was exposed to noise from testing
torpedoes. From 1979 to 1991 he worked for the employing establishment as a planningprogressor and was exposed to noise from machine shop lathes and drills. Appellant wore foam
earplugs. He noted that from 1991 to 1997 he worked as a planning estimator for the employing
establishment and was exposed to noise in the machine shops while checking the progress of
jobs. Appellant wore foam earplugs. From 1999 to 2000 he worked as a church treasurer and
since 2000, he stated that he worked as a carrier without noise exposure. Appellant indicated
that he participated in a hearing conservation program while working for the employing
establishment.
The employing establishment submitted medical records dated August 1, 1977 to
August 30, 1992 and the employing establishment audiograms taken from the hearing
conservation program from November 7, 1968 to July 15, 1985.2 Also submitted was a
September 17, 1997 notification which confirmed appellant’s retirement on September 30, 1997.
On August 21, 2014 OWCP referred appellant to Dr. Gerald G. Randolph, a Boardcertified otolaryngologist. In a September 16, 2014 report, Dr. Randolph noted examining
appellant and noted appellant’s exposure to noise. He diagnosed bilateral sensorineural hearing
loss. Dr. Randolph advised that the external auditory canals, tympanic membranes, and drum
motility were normal. There was no indication of acoustic neuroma or Meniere’s disease.
Dr. Randolph noted audiometric findings and advised that tympanograms were normal
bilaterally. He stated that the earliest audiogram in appellant’s record was dated November 7,
1968 which was essentially normal for both ears. Dr. Randolph noted that the audiogram
performed in his office on September 16, 2014 revealed bilateral sensorineural hearing loss with
significant hearing loss in the lower tones sloping off to more severe hearing loss in higher
frequencies. He noted a slight notch at 6,000 cycles per second in the right ear, which might be
suggestive of hearing loss, potentially aggravated by noise exposure. However, Dr. Randolph

2

The July 15, 1985 audiogram revealed, at the frequency levels of 500, 1,000, 2,000, and 3,000, the following
thresholds: left ear 15, 15, 10, and 15 decibels; right ear 10, 10, 5, and 10 decibels.

2

advised that the hearing loss had an audiometric configuration due to factors other than injurious
noise exposure.
Audiometric testing conducted on the doctor’s behalf and at the frequency levels of 500,
1,000, 2,000, and 3,000 revealed the following: right ear 35, 45, 40, and 50 decibels; left ear 45,
45, 45, and 45 decibels. Appellant reported noticing progressive hearing loss for four years. He
did not have tinnitus. Dr. Randolph noted that appellant left federal employment in 1997 and his
last industrial audiogram was performed on July 15, 1985 which was essentially normal and not
ratable. He indicated that he had no way of knowing if appellant had significant noise-induced
hearing loss at or near the time he left his federal job as the last work audiogram was essentially
normal. Dr. Randolph noted hearing loss due to noise exposure occurs at the time of noise
exposure and does not get worse at a later date. Therefore, it was unlikely appellant had
significant hearing loss at or near the time he left his federal employment.
Dr. Randolph opined that the workplace exposure as described in the statement of
accepted facts was of significant intensity and duration to have caused or aggravated hearing loss
if hearing protection had not been adequately utilized. He could not specifically identify the
“major cause” of appellant’s hearing loss, which significantly affected his hearing in frequencies
not generally aggravated by noise exposure; he added that aging was an aggravating factor.
Dr. Randolph noted that appellant was a candidate for bilateral hearing aids. He stated that he
had no idea if appellant would have been a candidate for hearing aids at the time he left his
federal job as hearing loss due to noise exposure does not get worse at a later date. Dr. Randolph
stated that he could not offer further opinion regarding the cause of appellant’s hearing loss
without an audiogram at or near the time he left his federal work.
On September 30, 2014 OWCP requested clarification from Dr. Randolph. It requested
that he provide an unequivocal opinion as to whether appellant’s measured hearing loss was due
to noise exposure in the federal employment. OWCP confirmed that there were no other
industrial audiograms available.
In an October 2, 2014 supplemental report, Dr. Randolph noted that in the absence of
scientific data such as industrial audiograms performed at or near the time appellant left his civil
service retirement in 1997 “an equivocal answer” to the question of causal relationship of
appellant’s hearing loss “requires speculation” and he did not like to “speculate in legal matters.”
However, he noted that appellant had only noticed hearing loss for approximately four years.
Dr. Randolph indicated that, since appellant left his civil service employment in 1997, it was
questionable as to whether he would have significant hearing loss at the time he left his civil
service employment. He reasoned that hearing loss from noise exposure occurs at the time of the
exposure and does not worsen over time because of past noise exposure. Dr. Randolph advised
that he could not be certain whether appellant had some noise-induced hearing loss at the time he
left federal employment. However, appellant’s history, and the audiogram performed on him,
led the doctor to conclude that his hearing loss was the result of factors other than noise
exposure. Dr. Randolph did not rule out the possibility of finding some hearing loss from noise
exposure at the time appellant left government employment if appropriate audiograms had been
available for review.

3

In an October 28, 2014 decision, OWCP denied the claim finding that the medical
evidence did not support that the hearing loss was causally related to workplace noise exposure.
It found that Dr. Randolph’s September 16 and October 2, 2014 reports did not establish hearing
loss due to noise exposure from federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
ANALYSIS
It is not disputed that appellant was exposed to noise for a number of years in the course
of his federal employment. On October 28, 2014 OWCP denied the claim finding that the
medical evidence did not support that the hearing loss was causally related to workplace noise
exposure. It based its decision on the reports of the second opinion physician, Dr. Randolph,
dated September 16 and October 2, 2014. The Board has carefully reviewed Dr. Randolph’s
reports and finds that he did not properly resolve the issue before him, specifically whether
appellant’s hearing loss was causally related to his employment noise exposure.
3

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

4

Solomon Polen, 51 ECAB 341 (2000).

4

The Board has noted that in assessing medical evidence the weight of such evidence is
determined by its reliability, its probative value, its convincing quality, and the factors which
enter in such an evaluation include the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, and
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5 In his September 16, 2014 report, Dr. Randolph noted that appellant left
civil service employment in 1997. Appellant’s last industrial audiogram was performed on
July 15, 1985 and revealed essentially normal hearing. Dr. Randolph stated that he had no way
of knowing whether appellant had significant noise-induced hearing loss at the time he retired.
He opined that the workplace exposure as described in the statement of accepted facts would
have caused or aggravated hearing loss if hearing protection had not been adequate, but he was
unable to specifically identify the major cause of appellant’s hearing loss.
In an October 2, 2014 supplemental report, Dr. Randolph noted that, in the absence of scientific
data, such as industrial audiograms performed at or near the time appellant left his civil service
retirement in 1997, an answer regarding causal relationship would be speculative and he did not
like to speculate in legal matters. He found that, since appellant’s last audiogram was in 1985
and as appellant left his federal work in 1997, it was questionable as to whether he had
significant hearing loss at the time he left his civil service employment. However, appellant’s
history and the audiogram performed for him “suggest” his hearing loss was due to factors other
than noise exposure after he left his federal employment. Dr. Randolph indicated that this did
not rule out the possibility of some evidence of additional noise exposure at the time he left his
civil service employment if appropriate audiograms were performed.
The Board finds that Dr. Randolph’s reports are speculative and equivocal, noting that in
the absence of audiograms performed at or near the time appellant left his federal job in 1997 an
opinion on causal relationship of appellant’s hearing loss would require “speculation.”
Dr. Randolph further advised that there was “no way that I can be certain” as to whether
appellant had some degree of noise-induced hearing loss at the time he left civil service
employment, but rather, he opined that the history and recent audiogram “suggest” the hearing
loss was due to factors other than noise exposure. He did not provide any medical rationale other
than these speculative statements to explain why such hearing loss would not be caused or
aggravated by appellant’s employment.6 Dr. Randolph’s reports are insufficient to resolve the
question of whether appellant’s workplace noise exposure caused or contributed to his hearing
loss.7 The Board has held that, when OWCP refers a claimant for a second opinion evaluation

5

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1959).

6

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).
7

An employee is not required to prove that occupational factors are the sole cause of his claimed condition. If
work-related exposures caused, aggravated, or accelerated appellant’s condition, he is entitled to compensation. See
Beth P. Chaput, 37 ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008).

5

and the report does not adequately address the relevant issues, OWCP should secure an
appropriate report on the relevant issues.8
Therefore, the medical evidence is insufficiently developed with regard to whether
appellant’s hearing loss was causally related to employment noise exposure. Proceedings under
FECA are not adversarial in nature nor is OWCP a disinterested arbiter. While the claimant has
the burden to establish entitlement to compensation, OWCP shares responsibility in the
development of the evidence. It has the obligation to see that justice is done.9 Once OWCP
undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issue.10
The case is remanded for OWCP to refer appellant to a new second opinion physician for
a detailed, reasoned medical opinion explaining whether appellant’s hearing loss was caused or
aggravated by workplace noise exposure. Following this and such other development as deemed
necessary, OWCP shall issue a de novo decision.
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.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

See Ayanle A. Hashi, 56 ECAB 234 (2004) (when OWCP refers a claimant for a second opinion evaluation and
the report does not adequately address the relevant issues, OWCP should secure an appropriate report on the
relevant issues).
9

John W. Butler, 39 ECAB 852 (1988).

10

Richard F. Williams, 55 ECAB 343, 346 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the October 28, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with the decision of the Board.
Issued: March 20, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7