United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carteret, NJ, Employer
__________________________________________

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

Docket No. 10-1799
Issued: March 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 30, 2010 appellant filed a timely appeal from the February 17, 2010 merit
decision of the Office of Workers’ Compensation Programs denying her traumatic injury claim
and the May 24, 2010 nonmerit decision denying her request for reconsideration. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.1
ISSUES
The issues are: (1) whether appellant sustained injuries to her head, arm or face while in
the performance of duty on June 5, 2009; and (2) whether the Office properly refused to reopen
the case for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

The Board notes that appellant submitted additional evidence on appeal. The Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision. 20 C.F.R. § 501.2(c); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Therefore, this new evidence cannot
be considered by the Board on appeal. Appellant may submit this evidence to the Office, together with a formal
request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On June 12, 2009 appellant, a 29-year-old mail handler, filed a traumatic injury claim
alleging that she injured her face, arm and the right side of her head when she fell off of a tow
motor at work on June 5, 2009.
Appellant submitted a letter dated June 11, 2009 from Dr. Vinod Kapoor, a neurologist,
who stated that appellant was under his care “because of an episode of dizziness and passing out
while driving a tow motor at work. Dr. Kapoor noted that she was undergoing tests and would
be unable to return to work until July 8, 2009.
In a June 6, 2009 statement, Carolyn Counts, a coworker, reported that on June 5, 2009
she saw appellant fall from a tow motor and “hit the floor hard.” She ran to appellant and
observed that she was having a seizure. Terique Davis stated that at 12:50 p.m. on the date in
question, he saw appellant shaking on her tow motor “which led to her fallin[g] head first and
hittin[g] her head on the ground.
On June 12, 2009 the employing establishment controverted the claim on the grounds that
the evidence failed to establish that appellant’s alleged condition was causally related to her
employment.
In a letter dated June 16, 2009, the Office informed appellant that the information
submitted was insufficient to establish her claim and allowed her 30 days to submit additional
information, including a detailed account of the alleged injury and a physician’s report, with a
diagnosis and a rationalized opinion as to the cause of the diagnosed condition.
In a statement dated June 16, 2009, appellant indicated that, on the date in question, she
started to feel dizzy while driving the tow motor because of the new safety light that turned
around and around. She fell from the tow motor and hit her head on the floor. Appellant did not
remember the fall, but believed that she must have fallen on her right side because she was not
able to move her right arm and she had bruises on her right leg and ankle. She stated that she
had no history of fainting spells or any other condition that would cause her to fall.
By decision dated July 20, 2009, the Office denied appellant’s claim. Although it
accepted that the work event occurred as alleged, the Office found that the medical evidence did
not contain a diagnosis that could be connected to the accepted event or an explanation as to
whether the fall was due to a preexisting condition or unknown cause. The evidence, therefore,
was insufficient to establish that appellant had sustained an injury under the Federal Employees’
Compensation Act on June 5, 2009.
On August 17, 2009 appellant requested an oral hearing.
In a December 18, 2009 letter, Dr. Kapoor reported that on June 8, 2009 appellant
informed him that, while driving a tow motor at work, she became dizzy from its flashing light,
fell off the tow motor and struck her head on the floor. Appellant stated that the fall caused her
to have a seizure. The record contains copies of x-rays of her right shoulder.

2

At a December 23, 2009 hearing, appellant testified that on June 5, 2009 she became
dizzy after watching the blinking strobe light on the tow motor for several hours. She fell from
the tow motor, hitting her head on the floor and experiencing a seizure.
In a February 17, 2010 decision, an Office hearing representative affirmed the July 20,
2009 decision, finding that the medical evidence was insufficient to establish the fact of injury.
On March 15, 2010 appellant requested reconsideration.
Appellant submitted a February 24, 2010 letter from Dr. Kapoor reflecting that he was
treating appellant for seizure disorder. Dr. Kapoor related her statement that she had a seizure at
work on June 3, 2009, which was caused or triggered by the light on the tow motor.
By decision dated May 24, 2010, the Office denied appellant’s request for
reconsideration on the grounds that the evidence presented was insufficient to warrant merit
review.
LEGAL PRECEDENT -- ISSUE 1
The Act provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.2 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of employment.3
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim, including the fact that the individual is an employee of the
United States within the meaning of the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that an injury was sustained in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.4 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury, and generally this can be established only by medical evidence.5

2

5 U.S.C. § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004).

5

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury,” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).

3

The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship.7 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.8 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.9
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on
whether there is a causal relationship between the claimant’s diagnosed condition and the
established incident or factor of employment. The opinion 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 established incident or factor of employment.10
It is a well-settled principle of workers’ compensation law, and the Board has so held,
that an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology
causes an employee to collapse and to suffer injury upon striking the immediate supporting
surface, and there is no intervention or contribution by any hazard or special condition of
employment -- is not within coverage of the Act.11 Such an injury does not arise out of a risk
connected with the employment and is, therefore, not compensable. However, as the Board has
made equally clear, the fact that the cause of a particular fall cannot be ascertained or that the
reason it occurred cannot be explained, does not establish that it was due to an idiopathic
condition.
This follows from the general rule that an injury occurring on the industrial premises
during working hours is compensable unless the injury is established to be within an exception to
such general rule.12 If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted
and caused the fall.13
6

Katherine J. Friday, 47 ECAB 591, 594 (1996).

7

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

Id.

9

20 C.F.R. § 10.303(a).

10

John W. Montoya, 54 ECAB 306 (2003).

11

See Carol A. Lyles, 57 ECAB 265 (2005).

12

Dora J. Ward, 43 ECAB 767, 769 (1992); Fay Leiter, 35 ECAB 176, 182 (1983).

13

John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB
200 (1974).

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ANALYSIS -- ISSUE 1
The Office accepted that appellant was a federal employee, that she timely filed her
claim for compensation benefits and that the June 5, 2009 workplace incident occurred as
alleged.14
The issue, therefore, is whether appellant has submitted sufficient medical evidence
establishing that the employment incident caused an injury. The medical evidence presented
does not contain a rationalized medical opinion establishing that the work-related incident
caused or aggravated any particular medical condition or disability. Therefore, appellant has
failed to satisfy her burden of proof.
Medical evidence submitted by appellant consisted of letters from Dr. Kapoor dated
June 11 and December 18, 2009 and copies of right shoulder x-rays. On June 11, 2009
Dr. Kapoor stated that appellant was under his care “because of an episode of dizziness and
passing out while driving a tow motor at work.” He noted that she was undergoing tests and
would be unable to return to work until July 8, 2009. His report did not contain a definitive
diagnosis or examination findings; nor did it provide an opinion as to the cause of appellant’s
condition. Therefore, his report is of limited probative value.15
On December 18, 2009 Dr. Kapoor reported that on June 8, 2009 appellant informed him
that, while driving a tow motor at work, she became dizzy from its flashing light, fell off the tow
motor and struck her head on the floor. She stated that the fall caused her to have a seizure. This
report does not contain a diagnosis, examination findings or an opinion from Dr. Kapoor on the
cause of appellant’s condition, but rather merely repeats appellant’s allegations. Therefore, it is
of diminished probative value. The remaining medical evidence of record, which does not
contain an opinion on causal relationship, is of limited probative value and insufficient to
establish appellant’s claim.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of her condition. Appellant failed to submit
appropriate medical documentation in response to the Office’s request. As there is no probative,
rationalized medical evidence addressing how her claimed condition was caused or aggravated
by her employment, appellant has not met her burden of proof in establishing that she sustained
an injury in the performance of duty causally related to factors of her federal employment.

14

As noted above, an injury resulting from an idiopathic fall is not compensable. Carol A. Lyles, supra note 11.
In this case, however, the factual and medical evidence of record is insufficient to establish that appellant’s fall was
idiopathic. In fact, the record does not contain any medical opinion evidence as to the cause of appellant’s fall.
Therefore, it must be considered as merely an unexplained fall, one which is distinguishable from a fall in which it is
definitely proved that a physical condition preexisted the fall and caused the fall. Steven S. Saleh, 55 ECAB 724
(2002); Judy Bryant, supra note 13; Martha G. List, supra note 13. The Board, thus, finds that the episode remains
an unexplained fall while appellant was engaged in activities related to her employment duties.
15

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. Michael E. Smith, 50 ECAB 313 (1999).

5

On appeal, appellant contends that she was injured on the job. She asserts that she was
first treated by Dr. Kapoor on June 8, 2008. The Board finds that the incident did occur in the
performance of duty but that appellant failed to meet her burden of proof to establish that she
sustained a traumatic injury on June 5, 2009 as a result of the incident.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.17 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.18 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.19 The Board has held that the submission of
evidence which does not address the particular issue involved does not constitute a basis for
reopening a case.20
16

ANALYSIS -- ISSUE 2
Appellant’s March 15, 2010 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, she did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(2).
In support of her request for reconsideration, appellant submitted a February 24, 2010
letter from Dr. Kapoor reflecting that he was treating appellant for seizure disorder and relating
her statement that she had a seizure at work on June 3, 2009, which was caused or triggered by
the light on the tow motor. Dr. Kapoor’s letter does not provide a definitive diagnosis,
examination findings or a rationalized opinion as to the cause of appellant’s condition. It merely
reiterates information contained in documents previously received and reviewed by the Office
and is, therefore cumulative and duplicative in nature.21 The Board finds that his February 24,
2010 report does not constitute relevant and pertinent new evidence not previously considered by

16

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(2).

18

Id. at § 10.607(a).

19

Id. at § 10.608(b).

20

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

21

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

6

the Office.22 Therefore, the Office properly determined that this evidence did not constitute a
basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
further review of the merits pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her March 15, 2010 request for reconsideration.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a traumatic injury in the performance of duty on June 5, 2009. The Board further finds
that the Office properly refused to reopen appellant’s case for further review of the merits
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 24 and February 17, 2010 are affirmed.
Issued: March 21, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

22

See Susan A. Filkins, 57 ECAB 630 (2006).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Lauderdale, FL, Employer
__________________________________________

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

Docket No. 10-830
Issued: January 3, 2011

Case Submitted on the Record

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

JURISDICTION
On February 3, 2010 appellant filed a timely appeal from an August 19, 2009 decision of
the Office of Workers’ Compensation Programs regarding a wage-earning capacity
determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether the Office properly determined that the selected position of
receptionist properly represented appellant’s wage-earning capacity as of August 30, 2009.
On appeal, counsel asserts that the selected receptionist position exceeded her medical
restrictions.
FACTUAL HISTORY
The Office accepted that on June 28, 1999 appellant, then a 34-year-old distribution
clerk, sustained a left shoulder strain, impingement with bursitis, adhesive capsulitis and cervical
radiculitis when she pulled on a stuck file cabinet drawer. She returned to limited duty on

April 13, 2000. The Office also accepted that on May 9, 2000 appellant sustained a left shoulder
sprain, villonodular synovitis of the left upper arm and aggravation of a herniated cervical disc
when pulling tubs of mail. Appellant stopped work on May 9, 2000 and did not return.1 She
received compensation for total disability on the daily and periodic rolls beginning in July 2000.
Dr. Alan M. Lazar, an attending Board-certified orthopedic surgeon, treated appellant
beginning in May 2000 for left shoulder impingement with bursitis. He performed arthroscopic
decompression of the left shoulder on April 4, 2002. Dr. D. Barry Lotman, a Board-certified
orthopedic surgeon and second opinion physician, opined in November 2001 that appellant’s
shoulder pain was due to a preexisting herniated C6-7 disc. The Office found a conflict between
Dr. Lazar and Dr. Lotman regarding the nature of her condition and selected Dr. Franklin Reyes,
a Board-certified orthopedic surgeon, as impartial medical examiner. In a May 23, 2002 report,
Dr. Reyes attributed appellant’s symptoms to idiopathic degenerative disc disease. He noted that
she could perform full-time modified duty.
Based on Dr. Reyes’ opinion, the Office referred appellant for vocational rehabilitation.
On August 2, 2002 Dr. Lazar approved an offered modified clerk position. In a March 27, 2003
letter, he opined that, based on surveillance video obtained by the employing establishment,2
appellant could return to full-time work with no restrictions.3 Appellant did not return to work at
the employing establishment.4
Beginning in November 2007, appellant was followed by Dr. Rahul V. Deshmukh, an
attending Board-certified orthopedic surgeon. In reports through February 2008, Dr. Deshmukh
diagnosed shoulder pain.5 He opined that appellant could work eight hours a day with no
reaching, pulling, pulling, lifting or climbing.
In an April 7, 2008 report, Dr. John E. Carey, an attending Board-certified
anesthesiologist, diagnosed disc herniations and osteophytes from C3 to C7. He administered
periodic cervical facet injections.
On August 8, 2008 the Office obtained a second opinion report from Dr. Vaughan
Frigon, a Board-certified orthopedic surgeon, who reviewed the medical record and statement of
1

The employing establishment terminated appellant on August 11, 2000 due to unacceptable conduct after
surveillance showed her engaging in activities inconsistent with her medical restrictions.
2

The employing establishment’s inspection service conducted video surveillance of appellant from December 12,
2002 to March 3, 2003, showing her using her left arm to lifting luggage and a bicycle, use a bicycle pump and
reach above shoulder level to close the trunk of her car.
3

By notice dated April 15, 2003 and finalized May 16, 2003, the Office terminated appellant’s compensation
benefits as based on Dr. Lazar’s opinion. It vacated the termination by February 23, 2004 decision, finding that it
improperly relied on Dr. Lazar’s opinion and not that of Dr. Reyes. The Office reinstated compensation
retroactively.
4

The Office obtained periodic second opinion reports from several Board-certified orthopedic surgeons: on
May 20, 2003 from Dr. John M. Flinchbaugh; on August 25, 2004 from Dr. Steven Lancaster and on January 10,
2007 from Dr. Douglas P. Hein. Each physician found appellant able to perform full-time limited-duty work.
5

A January 9, 2008 left shoulder arthrogram showed a probable partial tear of the supraspinatus tendon.

2

accepted facts provided by the Office. On examination, Dr. Frigon found mild limitation of
cervical and left shoulder motion and a positive impingement sign in the left shoulder. He
diagnosed a left infraspinatus tendon tear and multilevel degenerative cervical disc disease.
Dr. Frigon opined that the May 9, 2000 injuries had not resolved. He noted that appellant could
work eight hours a day with permanent restrictions against reaching above shoulder level with
the left arm. Dr. Frigon limited lifting, pulling and pushing to 20 pounds.
As the medical evidence established that appellant was not totally disabled for work, the
Office referred her for vocational rehabilitation. On January 7, 2009 a vocational rehabilitation
counselor performed a transferable skills analysis, noting her work experience as a store
manager, supervisor and clerk. Appellant signed a job development plan on February 20, 2009,
with employment goals of clerical office work.
In a March 17, 2009 report, Dr. Eric W. Scott, a Board-certified neurosurgeon, to whom
appellant was referred by Dr. Carey, diagnosed cervical spondylostenosis from C4 to C7.
Dr. Carey administered nerve block injections through June 2009.
In April 22, 2009 reports, Dr. Deshmukh restricted appellant to working six hours a day,
with no reaching above the shoulder and lifting limited to five pounds. He opined that she
required additional left shoulder surgery as prolonged conservative treatment had not improved
the accepted conditions. Dr. Deshmukh requested that the Office authorize a left rotator cuff
repair, distal clavicle excision and subacromial decompression. On May 1, 2009 the Office
approved the proposed surgery.
On June 9, 2009 the vocational rehabilitation counselor performed a labor market survey
for four clerical occupations, including receptionist, Department of Labor, Dictionary of
Occupational Titles #237.367-038. The position was classified as sedentary, with occasional
lifting, carrying, pushing and pulling up to 10 pounds. Entry level positions were reasonably
available in appellant’s commuting area with wages of $360.00 a week. The counselor noted
that she had the necessary job skills to perform an entry level receptionist position.
On June 10, 2009 the Office approved a 90-day job placement plan. Appellant did not
follow through with job leads provided by the counselor.
By notice dated July 16, 2009, the Office proposed reducing appellant’s wage-loss
compensation based on her ability to earn $360.00 a week in the selected position of receptionist.
It found that position to be suitable work. The Office afforded appellant 30 days to submit
additional evidence or argument.
Appellant responded by August 12, 2009 letter, contending the job was beyond
Dr. Deshmukh’s medical restrictions and that she was awaiting left shoulder surgery. She
submitted an August 12, 2009 report from Dr. Deshmukh noting that she would soon undergo
left shoulder surgery and could not push, pull or lift any weight. Appellant also provided reports
from Dr. Carey dated through July 21, 2009 noting nerve block and trigger point injections.
By decision dated August 19, 2009, the Office reduced appellant’s compensation
effective August 30, 2009 under sections 8106 and 8115 of the Federal Employees’
Compensation Act, based on her ability to earn $360.00 a week in the selected position of
3

receptionist. It found that the additional evidence submitted did not establish that she was
medically unable to work as a receptionist. The Office accorded the weight of the medical
opinion to Dr. Frigon. It noted that appellant remained entitled to medical benefits for treatment
of the accepted conditions.
LEGAL PRECEDENT
Under section 8115(a) of the Act,6 wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.7 The formula for
determining loss of wage-earning capacity based on actual earnings, developed in the Board’s
decision in Albert C. Shadrick,8 has been codified by regulations at 20 C.F.R. § 10.403. Office
procedures provide that a determination regarding whether actual earnings fairly and reasonably
represent wage-earning capacity should be made after an employee has been working in a given
position for more than 60 days.9 The amount any compensation paid is based on the
wage-earning capacity determination and it remains undisturbed until properly modified.10
ANALYSIS
The Office accepted that June 28, 1999 and May 9, 2000 work incidents caused a left
shoulder strain with adhesive capsulitis, bursitis and impingement syndrome, aggravation of
preexisting degenerative disc disease and cervical radiculitis. Appellant underwent arthroscopic
decompression of the left shoulder on April 4, 2002.
Following vocational rehabilitation and a 90-day job placement plan, the Office issued an
August 19, 2009 decision reducing appellant’s wage-loss compensation based on the selected
position of receptionist. The Board finds that this reduction was improper as the medical
evidence establishes a conflict in medical opinion as to appellant’s work restrictions.
The Office found the selected receptionist position to be suitable work based on the
medical opinion of Dr. Frigon, a Board-certified orthopedic surgeon and second opinion
physician. As of August 8, 2008, Dr. Frigon found appellant able to work full time with lifting
limited to 20 pounds and no reaching above shoulder level with the left arm. Based on these
limitations, the Office developed a vocational rehabilitation plan, resulting in the selection of the
receptionist position, a sedentary job with occasional lifting up to 10 pounds.
6

5 U.S.C. §§ 8101-8193, 8115(a).

7

Hayden C. Ross, 55 ECAB 455 (2004).

8

Albert C. Shadrick, 5 ECAB 376 (1953).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (December 1993).
10

See Sharon C. Clement, 55 ECAB 552 (2004).

4

Following issuance of a proposed notice of reduction of compensation, appellant
contended that the selected position exceeded limitations given by Dr. Deshmukh, an attending
Board-certified orthopedic surgeon, who explained on April 22, 2009 that she required repeat
arthroscopy of the left shoulder and could not lift more than five pounds. The Office approved
the requested surgery on May 1, 2009. On August 12, 2009 Dr. Deshmukh noted that appellant
was unable to lift any weight pending the approved left shoulder surgery. By August 19, 2009
decision, the Office reduced her compensation, relying on Dr. Frigon’s August 8, 2008
restrictions. It did not address the outstanding surgery authorization or restrictions provided by
Dr. Deshmukh.
The Board finds that a conflict in medical opinion exists between Dr. Deshmukh and
Dr. Frigon on appellant’s capacity to perform the duties of the selected position. The Office did
not properly consider the conflict in medical limitations in determining her ability to perform the
selected position.11 Therefore, it did not meet its burden of proof in reducing appellant’s wageloss compensation based on the selected position of receptionist.
On appeal, appellant contends that the selected receptionist position exceeded her
medical restrictions. As stated, the Office did not properly consider her medical limitations.
CONCLUSION
The Board finds that the selected position of receptionist did not properly represent
appellant’s wage-earning capacity as of August 30, 2009. The case is returned to the Office for
reinstatement of appropriate compensation retroactive to August 30, 2009.

11

John D. Jackson, 55 ECAB 465 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 19, 2009 is reversed.
Issued: January 3, 2011
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF THE ARMY, TRAINING &
DOCTRINE COMMAND, Fort Sill, OK,
Employer
__________________________________________

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

Docket No. 13-1826
Issued: January 9, 2014

Case Submitted on the Record

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

JURISDICTION
On August 1, 2013 appellant filed a timely appeal from the merit decision of
May 20, 2013 and the nonmerit decision of June 20, 2013 of the Office of Workers’
Compensation Programs’ (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant has more than a 10 percent impairment of her right
upper extremity, for which she received a schedule award; and (2) whether OWCP properly
refused to reopen her case for reconsideration under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 10, 2010 appellant, then a 60-year-old human resources assistant, injured
her right thumb, right hand and left thumb and left hand when she tripped and fell while
ascending a flight of stairs. She filed a claim for benefits, which OWCP accepted for bilateral
osteoarthrosis of the forearms; bilateral traumatic arthropathy of the hands; bilateral
enthesopathy of the wrist and carpus; bilateral tenosynovitis of the hand and wrist; left thumb
contusion and a left radial nerve injury.
On November 5, 2010 appellant underwent a trapezium resection arthroplasty to
ameliorate osteoarthritis of the carpometacarpal (CMC) joint in the right wrist and de Quervain’s
syndrome of the right wrist. The procedure was performed by Dr. Mehdi N. Adham, a Boardcertified hand surgeon.
In a Form CA-7 dated January 25, 2012, appellant requested a schedule award based on a
partial loss of use of her right arm.
In a report dated March 6, 2012, Dr. Adham stated that appellant had a five percent
permanent impairment based on pinch testing, JAMAR testing and post right carpometacarpal
joint surgery for osteoarthritis under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (sixth edition) (A.M.A., Guides).
In a report dated January 22, 2013, OWCP’s medical adviser stated that Dr. Adham’s
impairment rating and report was not in conformance with the protocols of the A.M.A., Guides
or sufficient by which to rate impairment under the A.M.A., Guides. He recommended that
appellant be referred to an appropriate medical specialist to evaluate impairment of the right arm.
In order to determine the degree of appellant’s right upper extremity impairmen, OWCP
referred her to Dr. Sofia M. Weigel, Board-certified in physical medicine and rehabilitation. In a
March 15, 2013 report, Dr. Weigel found that appellant had a 10 percent impairment based on
the November 5, 2010 CMC arthroplasty. Relying on Table 15-2 at page 394 of the A.M.A.,
Guides, Wrist Regional Grid,2 the Table utilized to rate upper extremity digital impairments, she
stated that appellant’s right thumb CMC arthroplasty yielded a class 3 impairment, with a default
value of 30 percent. Dr. Weigel applied the net adjustment formula at pages 406, 410 and 411 of
the A.M.A., Guides,3 finding that appellant had a grade modifier of 3 for functional history
(GMFH) under Table 15-7, based on a QuickDASH score of 77 for pain/symptoms with less than
normal activity; a grade modifier of 2 for physical examination (GMPE) for pain in the
hand/thumb; and a grade modifier of 3 for clinical studies (GMCS) based on the findings of
osteoarthritis of the CMC joint in the right wrist. She subtracted the grade modifier of 3 from the
above categories for a total net adjusted grade of one, which resulted in a change from a grade C

2

A.M.A., Guides 394.

3

Id. at 406, 410-11.

2

to grade B impairment or 28 percent impairment of the digit. This represented 10 percent
impairment of the right upper extremity at Table 15-12, page 421 of the A.M.A., Guides.4
In an April 18, 2013 report, OWCP’s medical adviser agreed with Dr. Weigel’s 10
percent right upper extremity impairment rating based on right thumb CMC arthroplasty,
pursuant to Table 15-2 of the A.M.A., Guides.
By decision dated May 20, 2013, OWCP granted appellant a schedule award for a 10
percent permanent impairment of the right upper extremity. It ran from March 6 to October 10,
2012, for a total of 31.2 weeks of compensation.
On May 29, 2013 appellant requested reconsideration. She did not submit any additional
medical evidence with her request.
By decision dated June 20, 2013, OWCP denied appellant’s application for review. It
found that she did not raise any substantive legal questions or include new and relevant evidence
sufficient to require OWCP to review its prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by

4

Id. at 421.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

7

Id.

8

Veronica Williams, 56 ECAB 367, 370 (2005).

9

A.M.A., Guides, supra note 3 at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.

3

grade modifiers based on GMFH, GMPE and GMCS.10 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS -- ISSUE 1
OWCP accepted numerous conditions stemming from the February 10, 2010 employment
injury, including osteoarthritis of the right thumb/right wrist. Appellant sought a schedule award
for the right upper extremity based on impairment from osteoarthritis of the right thumb and
right wrist. OWCP’s medical adviser found that the March 6, 2012 report from Dr. Adham,
appellant’s treating physician, who performed the November 5, 2010 right thumb CMC
arthroplasty, did not provide a sufficient basis for an impairment rating. He referred appellant to
Dr. Weigel, who rated a 10 percent right upper extremity impairment based on the CMC
arthroplasty under the sixth edition of the A.M.A., Guides in her March 15, 2013 report.
The section of the A.M.A., Guides which rates diagnosis-based impairments for the upper
extremities is located at Chapter 15, which states at page 387, Section 15.2 that impairments are
defined by class and grade. This section states:
“The impairment class is determined first, by using the corresponding diagnosisbased regional grid. The grade is then determined using the adjustment grids
provided in Section 15.3.
“Once the impairment class has been determined, based on the diagnosis, the
grade is initially assigned the default value, ‘C.’ The final impairment grade,
within the class, is calculated using the grade modifiers, or nonkey factors, as
described in Section 15.3. Grade modifiers include functional history, physical
examination, and clinical studies. The grade modifiers are used on the Net
Adjustment Formula described in Section at 15.3d to calculate a net adjustment.
The final impairment grade is determined by adjusting the grade up or down the
default value C. by the calculated net adjustment.” The lowest possible grade is
A, and adjustments less than minus 2 from the default value C will automatically
be considered A; the highest possible grade is E, and adjustments greater than
plus 2 will automatically be considered E.

10

Id. at 385-419

11

Id. at 411.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

4

“The regional grid is used for 2 purposes: (1) to determine the most appropriate
class for a specific regional diagnosis and (2) to determine the final impairment
after appropriate adjustments are made using the grade modifiers.”13
Using the formula above and the net adjustment formula outlined at pages 406 to 411 of
the A.M.A., Guides, Dr. Weigel found that appellant’s diagnosis of CMC right thumb resection
arthroplasty was a class 3 impairment for functional history at Table 15-2, a class C, 30 percent
impairment. She then applied the net adjustment formula at pages 406, 410 and 411 of the
A.M.A., Guides, finding that appellant had a grade modifier of 3 for GMFH, a grade modifier of
2 for GMPE and a grade modifier of 3 for GMCS. Dr. Weigel then subtracted the grade modifier
of 3 from the above categories for a total net adjusted grade of one, which resulted in a change
from a grade C to grade B impairment or 28 percent. This equated to a 10 percent digital
impairment of the right upper extremity at Table 15-12, page 421. As this finding was rendered
in accordance with the applicable tables and protocols in the A.M.A., Guides for rating right
upper extremity impairments based on digital impairments, the Board finds that Dr. Weigel and
OWCP’s medical adviser properly rated a 10 percent right upper extremity impairment for
appellant’s accepted right thumb/right wrist osteoarthritis condition.
The Board finds that the record supports that appellant has no more than a 10 percent
right upper extremity impairment, for which she received a schedule award. OWCP’s medical
adviser concurred with Dr. Weigel’s assessment that appellant had 10 percent right upper
extremity impairment under the A.M.A., Guides based on the right thumb CMC resection
arthroplasy. OWCP properly found in its May 20, 2013 decision that appellant had a 10 percent
permanent impairment of the right upper extremity.
Appellant may request an 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.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by OWCP or by submitting
relevant and pertinent evidence not previously considered by OWCP.14 Evidence that repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a
basis for reopening a case.15

13

A.M.A., Guides 387.

14

20 C.F.R. § 10.606(b). See generally 5 U.S.C. § 8128(a).

15

Howard A. Williams, 45 ECAB 853 (1994).

5

ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has she advanced a relevant legal argument not previously
considered by OWCP. She did not submit any medical evidence with her request for
reconsideration. Appellant’s reconsideration request failed to show that OWCP erroneously
applied or interpreted a point of law nor did it advance a point of law or fact not previously
considered by OWCP and did not abuse its discretion in refusing to reopen her claim for a
review on the merits.
CONCLUSION
The Board finds that appellant has no more than a 10 percent impairment of the right
arm, for which she received a schedule award. The Board finds that OWCP properly refused to
reopen appellant’s case for reconsideration on the merits under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 20 and May 20, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 9, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 10-1243
Issued: November 23, 2010

Case Submitted on the Record

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

JURISDICTION
On March 26, 2010 appellant filed a timely appeal from an October 6, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty, causally related to her employment.
FACTUAL HISTORY
On August 7, 2009 appellant, a 53-year-old city carrier, filed an occupational disease
claim (Form CA-2) in which she alleged that walking six to eight hours per day, five to six days
per week, aggravated her congenital right-foot hammertoes. She first became aware of her
condition on March 9, 2009. Appellant recognized that her condition was caused by her federal
employment on April 1, 2009.

On March 9, 2009 Dr. Travis Piper, a podiatrist, presented findings on examination,
reviewed appellant’s history of injury and diagnosed hammertoes of the right fourth and fifth
digits with exostosis in the right medial fifth digit.
By report (Form CA-20) dated June 10, 2009, Dr. Piper presented findings on
examination and diagnosed hammertoes.
On September 10, 2009 Dr. Piper opined that appellant’s condition, hammertoes, were of
congenital origin but “may be aggravated by long periods of walking.”
By decision dated October 6, 2009, the Office denied the claim because the evidence of
record did not demonstrate the established employment factors caused a medically-diagnosed
condition.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
Under the Act, when employment factors cause an aggravation of an underlying physical
condition, the employee is entitled to compensation for the periods of disability related to the
aggravation.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
1

Appellant requested reconsideration before the Office on January 7, 2010. The Office had not issued a decision
regarding this request for reconsideration as of the date of this appeal.
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

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

5

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

Raymond W. Behrens, 50 ECAB 221, 222 (1999); James L. Hearn, 29 ECAB 278, 287 (1978).

2

factual and medical background of the employee, 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 employee.8
ANALYSIS
Appellant established the employment factors she deemed responsible for her condition.
Her burden is to demonstrate these employment factors caused a medically-diagnosed condition.
Causal relationship is a medical issue that can only be proven by probative medical opinion
evidence. The Board finds that appellant has not submitted the requisite medical evidence based
upon a complete factual background which explains how the established employment factors
aggravated appellant’s congenital hammertoe condition.9
Dr. Piper diagnosed hammertoes. He opined that this condition was of congenital origin.
Dr. Piper also speculated that appellant’s hammertoes “may be aggravated by long periods of
walking.” He, however, never documented a work history and never explained how
physiologically her walking required by her job would have aggravated her congenital condition.
While Dr. Piper speculated that appellant’s work duties may have aggravated the condition, use
of the word “may” indicates his opinion is speculative or equivocal and thus has diminished
probative value.10 Therefore, Dr. Piper’s reports and notes do not establish the required causal
relationship.
An award of compensation may not be based on surmise, conjecture or speculation.11
Appellant has not submitted sufficient medical evidence supporting her claim, evidence
containing a reasoned discussion explaining how the established employment factors caused a
medically-diagnosed condition.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty, causally related to her employment.

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

On appeal, appellant submitted additional evidence. The Board may not consider evidence for the first time on
appeal, which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB 293 (2008) (holding the Board’s jurisdiction is limited to reviewing the evidence that was before the
Office at the time of its final decision).
10

Cecelia M. Corley, 56 ECAB 662 (2005).

11

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).

3

ORDER
IT IS HEREBY ORDERED THAT the October 6, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, D.C., Employer
__________________________________________

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

Docket No. 10-350
Issued: September 7, 2010

Case Submitted on the Record

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

JURISDICTION
On November 10, 2009 appellant filed a timely appeal from a May 13, 2009 merit
decision of the Office of Workers’ Compensation Programs’ denying his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant sustained a traumatic injury to his left hand and shoulder
on September 12, 2008.
FACTUAL HISTORY
On September 22, 2008 appellant, a 49-year-old Equal Employment Opportunity
alternate dispute resolution program analyst, filed a traumatic injury claim alleging that he
sustained injuries to his left hand and shoulder when he blacked out and fell to the conference
room floor due to stress on September 12, 2008. The employing establishment was allegedly
aware that he suffered from chronic hypertension.

Appellant submitted a September 12, 2008 disability slip from Dr. H. Zimmerman, a
treating physician, who diagnosed headache, hypertension, syncope and weakness. In a
September 23, 2008 work excuse, Dr. John H. Pope, Board-certified in the field of family
medicine, recommended a 30-day leave due to recent problems which resulted in hospitalization.
The employing establishment controverted the claim on the grounds that appellant’s fall
did not occur in the performance of duty, as it was not related to a specific work factor.
In an October 6, 2008 letter, the Office informed appellant that the evidence and
information submitted was insufficient to establish that he had experienced the incident as
alleged. Appellant was advised to submit details surrounding the claimed event, as well as a
medical report which contained a diagnosis and a reasoned opinion as to the cause of the
diagnosed condition.
Appellant submitted a September 13, 2008 medication record, bearing an illegible
signature, from the Georgetown University Hospital emergency department; a September 13,
2008 report of a magnetic resonance imaging (MRI) scan of the brain; and an October 23, 2008
prescription for physical therapy from Dr. N.D. Boardman, III, a Board-certified orthopedic
surgeon, who diagnosed left rotator cuff bursitis. On October 27, 2008 Dr. Nazir A.
Chaundhary, a treating physician, diagnosed adjustment disorder with depressed mood.
Appellant submitted July 18 and August 6, 2008 reports from Dr. Pope reflecting a
diagnosis of chronic hypertension. In a September 30, 2008 attending physician’s report,
Dr. Pope stated that appellant had experienced an episode of syncope on September 12, 2008,
“which resulted in him blacking out, falling back and injuring his left hand and shoulder.” His
findings included “abnormal [computerized tomography] of the head, injury to left hand and left
shoulder that was evaluated at Georgetown.”
In a September 22, 2008 attending physician’s report, Dr. Ibrahim M. Hegab, a treating
physician, diagnosed cervical radiculitis, in addition to the primary diagnosis of syncope. He
stated that appellant fell after blacking out on September 12, 2008, hitting his left hand and
shoulder. Appellant was experiencing “shooting pain along the medial nerve of the left hand.”
His September 23, 2008 report reflected appellant’s belief that he fractured his left index finger
when he lost consciousness and fell at work on the date in question. Since the fall, he had
experienced shooting electrical shock-like pains running from the anterior shoulder to the left
index finger. Dr. Hegab provided examination findings and diagnosed syncope, cervical
radiculopathy and acute reaction to stress. On October 22, 2008 he provided examination
findings, noting that nerve conduction studies were normal.
In an undated statement, appellant alleged that he became angry on September 12, 2008
during a conversation with Coworker Tracy Wattree Bond. As a result of the confrontation, he
fell on the floor and hurt his left hand and shoulder.
By decision dated November 13, 2008, the Office denied appellant’s claim on the
grounds that the medical evidence failed to establish that he was injured in the performance of
duty. On November 17, 2008 appellant requested an oral hearing.

2

During a March 2, 2008 telephonic hearing, appellant testified that during a meeting with
Ms. Bond on September 12, 2008, he was told that his work would be monitored because he was
not completing assignments on time. He became dizzy. When appellant stood up, he blacked
out and fell on his left hand. His left shoulder hit a chair as he fell to the floor. For two or three
months, appellant was unable to use his hand, which was diagnosed with a bruised nerve in the
left index finger. His left shoulder received a diagnosis of impingement syndrome.
In an undated statement, appellant reiterated that his fall was due to “being provoked” by
Ms. Bond and that he worked in a stressful and hostile work environment. On April 30, 2009
Ms. Bond denied that she raised her voice or abused appellant during the September 12, 2008
meeting.
In a decision dated May 13, 2009, an Office hearing representative affirmed the
November 13, 2008 decision, which he modified to reflect denial based on failure to establish a
causal relationship between a diagnosed condition and the established event. The representative
found that the evidence was sufficient to establish that the incidents occurred as alleged, but that
the syncopal episode remained an unexplained fall which occurred while appellant was engaged
in activities incidental to his employment duties. As the Office failed to establish that the fall
was due to a personal, nonoccupational pathology, appellant’s injury was compensable.
Regarding the medical evidence, the hearing representative stated:
“A careful and thorough review of the medical evidence of record, fails to reflect
any medical evidence providing an accurate history of injury, definitive diagnosis
regarding the claimant’s left shoulder and/or hand and unequivocal opinion
regarding causal relationship between the accepted fall and diagnosis (es)
provided, supported by medical rationale.”
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee, resulting from personal injury sustained while in the
performance of duty.1 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”2
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.3 When an employee claims that he sustained a
1

5 U.S.C. § 8102(a).

2

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
3

Robert Broome, 55 ECAB 339 (2004).

3

traumatic injury in the performance of duty, he must establish the “fact of injury,” consisting of
two components which must be considered in conjunction with one another. The first is whether
the employee actually experienced the incident that is alleged to have occurred at the time, place
and in the manner alleged. The second is whether the employment incident caused a personal
injury and generally this can be established only by medical evidence.4
It is a well-settled principle of workers’ compensation law that an injury resulting from
an idiopathic fall -- where a personal, nonoccupational pathology causes an employee to collapse
and to suffer injury upon striking the immediate supporting surface and there is no intervention
or contribution by any hazard or special condition of employment -- is not within coverage of the
Act.5 Such an injury does not arise out of a risk connected with the employment and is therefore
not compensable. The fact, however, that the cause of a particular fall cannot be ascertained or
that the reason it occurred cannot be explained, does not establish that it was due to an idiopathic
condition. This follows from the general rule that an injury occurring on the industrial premises
during working hours is compensable unless the injury is established to be within an exception to
such general rule.6 If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted
and caused the fall.7
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship.9 Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.10 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
4

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q), (ee).
5

See Carol A. Lyles, 57 ECAB 265 (2005).

6

Dora J. Ward, 43 ECAB 767, 769 (1992); Fay Leiter, 35 ECAB 176, 182 (1983).

7

John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).

8

Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

11

20 C.F.R. § 10.303(a).

4

there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion 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 established incident or factor of employment.12
Under section 8103(a) of Act, the Office is required by statute and regulations to make
findings of fact in making a determination regarding entitlement to compensation benefits.13
Office procedure further specifies that a final decision of the Office must include findings of fact
and provide clear reasoning which allows the claimant to understand the precise defect of the
claim and the kind of evidence which would tend to overcome it.14 These requirements are
supported by Board precedent.15
ANALYSIS
The Office hearing representative accepted that appellant fell in the performance of duty
on September 12, 2008 as alleged and that any resulting injuries were compensable. He
determined, however, that the medical evidence was insufficient to establish a causal relationship
between the accepted fall and a diagnosed condition. The Board finds that the hearing
representative’s decision does not contain adequate facts and findings or clear reasoning, to
allow appellant to understand the precise defects of his claim and how to overcome them.16
The hearing representative stated that he had performed a careful and thorough review of
the medical evidence, which failed to provide an accurate history of injury, definitive diagnosis
and unequivocal opinion regarding causal relationship supported by medical rationale. He did
not, however, specifically address any of the medical reports of record or explain how they were
insufficient to establish that appellant had sustained an injury as a result of the accepted fall. The
hearing representative’s blanket statement that appellant failed to provide sufficient medical
evidence does not meet the requirements of the Act or the Office’s procedures.17
For these reasons, the Office’s stated justification for denying appellant’s claim is
insufficient. The case will be remanded to the Office for the provision of additional facts and

12

John W. Montoya, 54 ECAB 306 (2003).

13

5 U.S.C. § 8124(a) provides: The [Office] shall determine and make a finding of facts and make an award for
or against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of the
Office shall contain findings of fact and a statement of reasons.
14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

15

See T.K., 61 ECAB ___ (Docket No. 09-1729, issued May 10, 2010); James D. Boller, Jr., 12 ECAB 45,
46 (1960).
16

See supra notes 12 and 13 and accompanying text.

17

See supra notes 13 and 14 and accompanying text.

5

findings in support of its determination.18 After such development it deems necessary, the Office
shall issue an appropriate decision.19
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained an injury in the performance of duty on September 12, 2008.
ORDER
IT IS HEREBY ORDERED THAT the May 13, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: September 7, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

See T.K., supra note 15 and accompanying text.

19

The Board notes that appellant requested oral argument. As the case is not in posture for a decision, the Board
finds that oral argument is unnecessary in this instance. Consequently, the Board, in its discretion, denies
appellant’s request for oral argument. See 20 C.F.R. § 501.5(a), (b) (2009).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
CANNON AIR FORCE BASE, NM, Employer
__________________________________________

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

Docket No. 07-2413
Issued: March 4, 2008

Case Submitted on the Record

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

JURISDICTION
On September 27, 2007 appellant filed a timely appeal from January 4 and June 22, 2007
merit decisions of the Office of Workers’ Compensation Programs terminating his compensation
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss
compensation effective January 21, 2007 on the grounds that he had no further disability due to
his August 1, 2006 employment injury; and (2) whether he has established that he had
employment-related disability after January 21, 2007.
FACTUAL HISTORY
On August 18, 2006 appellant, then a 38-year-old plumbing worker, filed a claim for an
injury occurring on August 1, 2006 when he twisted his right ankle while getting out of a truck.

He stopped work on August 7, 2006 and did not return. The Office accepted the claim for a right
ankle sprain.
Dr. Joel W. Sievers, who specializes in family practice, treated appellant for his right
ankle sprain. He found that appellant could work with restrictions beginning in September 2006;
however, the employing establishment did not have light-duty work available. The Office paid
appellant compensation beginning September 21, 2006.
The employing establishment
terminated him from employment effective October 27, 2006 based on his inability to perform
his job duties.
In a progress report dated November 3, 2006, Dr. Sievers found mild swelling and
tenderness of the lateral and anterolateral right ankle with no instability or laxity. He diagnosed
an improving right ankle sprain and opined that appellant could resume regular work with no
restrictions. Dr. Sievers recommended continued rehabilitation and a follow-up appointment.
On November 27, 2006 the Office notified appellant of its proposed termination of his
wage-loss compensation on the grounds that he had no further employment-related disability.
The Office provided him 30 days to respond to the proposed termination. Appellant submitted
physical therapy reports.
In a decision dated January 4, 2007, the Office terminated his compensation effective
January 21, 2007 based on Dr. Sievers finding that he had no further disability due to his
August 1, 2006 work injury.
In a January 29, 2007 progress report, Dr. Sievers noted that appellant aggravated his
right ankle sprain when he slipped on ice. He found mild lateral swelling, mild to moderate
tenderness of the posterolateral and anterior joint and trace laxity of the anterior drawer.
Dr. Sievers diagnosed a right ankle sprain and a suspected associated chondral injury. He
recommended a magnetic resonance imaging (MRI) scan study.1
In a report dated February 19, 2007, Dr. Floyd Pacheco, Jr., a podiatrist, evaluated
appellant for Dr. Sievers. He noted that appellant sustained an injury to his right ankle on
August 30, 2006. Dr. Pacheco found edema in the lateral aspect of the right ankle with laxity of
the anterior drawer on the right versus the left. He interpreted an MRI scan study as showing an
anterior talofibular ligament tear and possible attenuation of the calcaneofibular ligament.
Dr. Pacheco diagnosed right lateral ankle instability and recommended surgery. In an
accompanying form report dated February 19, 2007, he opined that appellant was unable to work
due to right ankle instability.
On March 2, 2007 Dr. Pacheco performed a left ankle arthrotomy and a right ankle repair
of the anterior talofibular and calcaneofibular ligament. In March 8, 2007 form reports, he
asserted that appellant was unable to work due to right and left ankle instability. In a progress

1

An MRI scan study of the right ankle, obtained on February 5, 2007, revealed mild soft tissue edema of the
posterior talofibular and intermalleolar ligament, bone marrow edema in the posterior talus and low lying of the
peroneus brevis musculotendinous junction.

2

report of the same date, Dr. Pacheco opined that appellant was doing well after an ankle
stabilization and arthrotomy.
On May 1, 2007 appellant requested reconsideration. He submitted a March 29, 2007
progress report from Dr. Pacheco, who noted that appellant was status post ankle stabilization
and arthrotomy and found that he was disabled from employment. In a May 29, 2007 form
report, Dr. Pacheco diagnosed right ankle instability and opined that he was unable to work.
By decision dated June 22, 2007, the Office denied modification of its January 4, 2007
decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.2 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.3
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for right ankle strain. He stopped work on
August 7, 2006 and did not return.4 The Office paid appellant compensation for total disability
beginning September 21, 2006.
In a report dated November 3, 2006, Dr. Sievers diagnosed an improving right ankle
sprain. He found good stability, no laxity, mild lateral and anteriolateral swelling and mild
tenderness. Dr. Sievers released appellant to resume his usual employment with no physical
limitations. As appellant’s attending physician, he had a thorough knowledge of his condition.
Thus, Dr. Sievers’ opinion constitutes the weight of the medical evidence. The Office,
consequently, properly relied upon his opinion in terminating appellant’s compensation effective
January 21, 2007.5

2

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

3

Gewin C. Hawkins, 52 ECAB 242 (2001).

4

The employing establishment terminated appellant from employment effective October 27, 2006 as he could no
longer perform his employment duties.
5

Appellant submitted physical therapy reports. A physical therapist is not a “physician” within the meaning of
section 8101(2) of the Act and cannot render a medical opinion. Vickey C. Randall, 51 ECAB 357 (2000).

3

LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to him to establish that he had continuing disability after that date related to his
accepted injury.6 To establish a causal relationship between the condition as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized
medical evidence based on a complete medical and factual background, supporting such a causal
relationship.7 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.8 Rationalized medical evidence
is evidence which includes a physician’s rationalized medical opinion on the issue of whether
there is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationalize 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 -- ISSUE 2
On January 29, 2007 Dr. Sievers noted that appellant sustained a possible aggravation of
his right ankle sprain when he slipped on ice. On physical examination, he found mild lateral
swelling, mild to moderate tenderness of the posterolateral and anterior joint and trace laxity of
the anterior drawer. Dr. Sievers diagnosed a right ankle sprain and a suspected associated
chondral injury. He did not, however, address the relevant issue of whether appellant was
disabled from employment and thus his opinion is of diminished probative value. Further,
Dr. Sievers did not provide an opinion on the causal relationship between the accepted
employment injury and the diagnosed conditions of right ankle sprain and a chondral injury.
Such an opinion on causal relationship is especially necessary given the physician’s finding that
appellant may have sustained an intervening injury when he recently slipped on ice.
In a report dated February 19, 2007, Dr. Pacheco discussed appellant’s history of an
August 30, 2006 right ankle injury. He found edema in the lateral aspect of the right ankle with
laxity of the anterior drawer on the right versus the left and noted that an MRI scan study
revealed an anterior talofibular ligament tear and possible attenuation of the calcaneofibular
ligament. Dr. Pacheco diagnosed right lateral ankle instability and recommended surgery. In a
form report of the same date, he determined that appellant was unable to work due to right ankle
6

Manual Gill, 52 ECAB 282 (2001).

7

Id.

8

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

9

Leslie C. Moore, 52 ECAB 132 (2000).

10

Ernest St. Pierre, 51 ECAB 623 (2000).

4

instability. Dr. Pacheco did not, however, specifically address the cause of the diagnosed
conditions or appellant’s disability from employment. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of diminished probative value on the
issue of causal relationship.11
On March 2, 2007 Dr. Pacheco performed a left ankle arthrotomy and a right ankle repair
of the anterior talofibular and calcaneofibular ligament. In March 8, 2007 form reports, he
asserted that appellant was unable to work due to right and left ankle instability. In a progress
report of the same date, Dr. Pacheco opined that appellant was doing well after an ankle
stabilization and arthrotomy. On March 29, 2007 he diagnosed status post ankle stabilization
and arthrotomy and found that he was disabled from employment. In a May 29, 2007 form
report, Dr. Pacheco diagnosed right ankle instability and opined that he was unable to work.
Again, however, he did not address causation and thus his reports are of little probative value on
the issue of causal relationship.12
Appellant has not submitted rationalized medical evidence establishing that he was
disabled from work after January 21, 2007 due to his employment injury. Thus, he has not met
his burden of proof to show that he had any continuing employment-related disability subsequent
to the termination of his compensation effective January 21, 2007.
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss compensation
effective January 21, 2007 on the grounds that he had no further disability due to his August 1,
2006 employment injury. The Board further finds that appellant did not establish that he had
employment-related disability after January 21, 2007.

11

Conrad Hightower, 54 ECAB 796 (2003).

12

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 22 and January 4, 2007 are affirmed.
Issued: March 4, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
MOBILITY COMMAND, RANDOLPH AIR
FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 15-138
Issued: March 13, 2015

Case Submitted on the Record

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

JURISDICTION
On October 24, 2014 appellant, through counsel, filed a timely appeal from a
September 30, 2014 decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3 the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained more than 17 percent binaural hearing loss for
which he received a schedule award. On appeal appellant’s counsel argues that appellant is
entitled to an additional five percent impairment for tinnitus.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 16, 2012 appellant, then a 56-year-old heavy mobile equipment mechanic,
filed an occupational disease claim (Form CA-2) alleging that he developed bilateral hearing loss
as a result of high levels of employment-related noise exposure. He became aware of his
condition and of its relationship to his employment on June 1, 1992. Appellant notified his
supervisor on December 23, 2013. In support of his claim, he submitted a May 20, 2013
audiogram.
On June 14, 2014 appellant filed a claim for a schedule award (Form CA-7).
OWCP referred appellant, together with a statement of accepted facts (SOAF), to
Dr. William R. Lomax, a Board-certified otolaryngologist, for a second opinion evaluation.2 The
SOAF noted that appellant was employed as a heavy mobile equipment mechanic from
January 1990 to the present where he was exposed to noise from various pneumatic tools,
chipping, needle guns, grinding, and running engines.
An audiogram was completed on July 28, 2014 which revealed the following decibel
(dB) losses at 500, 1,000, 2,000, and 3,000 hertz (Hz): 20, 20, 40, and 65 for the right ear and
15, 20, 45, and 65 for the left ear. Speech reception thresholds were 20 dB on the right and 20
dB on the left, while auditory discrimination scores were 88 percent bilaterally. Dr. Lomax, on a
form report provided to him by OWCP, reported that appellant complained of tinnitus and
hearing problems getting gradually worse since 1990. He diagnosed bilateral neurosensory
hearing loss consistent with acoustic trauma and presbycusis. Dr. Lomax further noted that
appellant’s subjective tinnitus was secondary to the hearing loss. He stated that appellant’s
workplace noise exposure was sufficient as to intensity and duration to have caused the loss in
question. Dr. Lomax opined that appellant’s sensory neural hearing loss was caused by his
federal employment-related noise exposure, noting that hearing loss due to presbycusis is
calculated to be 10 dB at age 59. He stated that appellant had reached maximum medical
improvement (MMI) and recommended hearing aids.
Applying the standard provided by the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment3 (A.M.A., Guides) to the
July 28, 2014 audiometric data, Dr. Lomax calculated that appellant sustained 17 percent
monaural hearing impairment in the right ear and 17 percent monaural hearing impairment in the
left ear. He calculated a binaural hearing impairment of 17 percent. On the form report,
Dr. Lomax added five percent impairment for tinnitus, which impacted the ability to perform
activities of daily living, for a total of 22 percent binaural hearing impairment (17 percent + 5
percent for tinnitus). On the Form CA-1332 OWCP provided a location to add up to five percent
for tinnitus, on the final calculation page but did not designate a location to expand upon the
basis for such rating.
2

The Board notes that by decisions dated June 4 and July 18, 2014, OWCP suspended adjudication of appellant’s
case for failing to attend and obstructing an examination with Dr. Lomax. Subsequently, OWCP rescheduled
appellant’s examination for July 28, 2014.
3

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

2

On August 25, 2014 OWCP referred the case file to an OWCP district medical adviser
(DMA) to determine the extent of appellant’s hearing loss and permanent impairment due to his
employment-related noise exposure.
On August 26, 2014 the DMA reviewed Dr. Lomax’s otologic examination report and
agreed that appellant’s bilateral sensorineural hearing loss was due to occupational noise
exposure. He applied the audiometric data to OWCP’s standard for evaluating hearing loss
under the sixth edition of the A.M.A., Guides and determined that appellant sustained 17 percent
binaural hearing loss.4 The DMA averaged appellant’s left ear hearing levels of 15, 20, 45, and
65 dB at 500, 1,000, 2,000, and 3,000 Hz, which totaled 36.25. He then subtracted a 25-dB
fence and multiplied the balance of 11.25 by 1.5 to find 16.875 percent left ear monaural hearing
loss. The DMA then averaged appellant’s right ear hearing levels of 20, 20, 40, and 65 dB at
500, 1,000, 2,000, and 3,000 Hz, which totaled 36.25. After subtracting out a 25-dB fence, he
multiplied the remaining 11.25 balance by 1.5 to calculate a 16.875 percent right ear monaural
hearing loss. The DMA calculated 17 percent binaural hearing loss by multiplying the right ear
loss of 16.875 percent by 5, adding the 16.875 percent left ear loss and dividing this sum by 6.5
No percentage was added for tinnitus. The DMA noted the date of MMI as July 28, 2014 and
authorized hearing aids.
By decision dated September 30, 2014, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss. By decision dated September 30, 2014, it also granted appellant a
schedule award for 17 percent binaural hearing loss. The award covered a period of 34 weeks
from July 28 to September 20, 2014.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides (6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and
the Board has concurred in such adoption.7

4

Id.

5

The DMA calculated 16.875 percent binaural hearing loss which was rounded up to 17 percent. The Board notes
that it is OWCP’s policy to round the calculated percentage of impairment to the nearest whole number. See L.B.,
Docket No. 14-479 (issued August 6, 2014); J.H., Docket No. 08-2432 (issued June 15, 2009); Robert E. Cullison,
55 ECAB 570 (2004). See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.4(b)(2)(b) (September 2010).
6

5 U.S.C. §§ 8101-8193.

7

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

3

OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 dB is deducted
because, as the A.M.A., Guides points out, losses below 25 dB result in no impairment in the
ability to hear everyday speech under everyday conditions.8 The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.9
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.10 The A.M.A., Guides state that, if tinnitus
interferes with activities of daily living, including sleep, reading (and other tasks requiring
concentration), enjoyment of quiet recreation, and emotional well-being, up to five percent may
be added to a measurable binaural hearing impairment.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.12 OWCP may follow the advice
of its medical adviser or consultant where he or she has properly utilized the A.M.A., Guides.13
ANALYSIS
OWCP accepted appellant’s claim for bilateral noise-induced hearing loss. The issue is
whether appellant has more than a 17 percent binaural hearing loss for which he received a
schedule award. The Board finds that the evidence of record establishes that he has a 22 percent
binaural hearing loss.14
OWCP referred appellant, together with a statement of accepted facts, to Dr. Lomax, a
Board-certified otolaryngologist, for a second opinion evaluation. An audiogram was completed
on July 28, 2014 which revealed the following dB losses at 500, 1,000, 2,000, and 3,000 Hz: 20,
8

See A.M.A., Guides 250.

9

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).
10

See A.M.A., Guides 249.

11

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

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
13

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

14

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

4

20, 40, and 65 for the right ear and 15, 20, 45, and 65 for the left ear. Speech reception
thresholds were 20 dB on the right and 20 dB on the left, while auditory discrimination scores
were 88 percent bilaterally. Dr. Lomax reported that appellant complained of years of hearing
loss and tinnitus. He diagnosed bilateral neurosensory hearing loss and tinnitus, noting that
appellant’s subjective tinnitus was secondary to the hearing loss. Dr. Lomax opined that
appellant’s workplace noise exposure caused his bilateral neurosensory hearing loss.
Applying the June 28, 2014 audiometric data and using the sixth edition of the A.M.A.,
Guides, Dr. Lomax calculated that appellant sustained 17 percent monaural hearing impairment
in the right ear and 17 percent monaural hearing impairment in the left ear. He calculated a
binaural hearing impairment of 17 percent and added 5 percent for tinnitus, for a total of 22
percent binaural hearing impairment (17 percent + 5 percent for tinnitus).15 Dr. Lomax stated
that maximum medical improvement had been reached and recommended hearing aids.
OWCP then referred the medical evidence to an OWCP DMA, for a rating of permanent
impairment in accordance with the A.M.A., Guides.16 The DMA opined that appellant had a 17
percent binaural hearing loss under the sixth edition of the A.M.A., Guides based on the results
of the June 28, 2014 audiogram and Dr. Lomax’s second opinion report. He did not offer any
opinion on appellant’s diagnosed tinnitus.17
The Board finds that Dr. Lomax, the second opinion physician, properly evaluated
appellant’s hearing loss. Using the June 28, 2014 audiogram to calculate appellant’s hearing loss
in accordance with the A.M.A., Guides, Dr. Lomax averaged appellant’s left ear hearing levels
of 15, 20, 45, and 65 dB at 500, 1,000, 2,000 and 3,000 Hz, which totaled 36.25. He then
subtracted a 25-dB fence and multiplied the balance of 11.25 by 1.5 to find 16.875 percent left
ear monaural hearing loss. Appellant’s right ear hearing levels of 20, 20, 40, and 65 dB at 500,
1,000, 2,000, and 3,000 Hz, were then averaged to total 36.25. After subtracting out a 25-dB
fence, he multiplied the remaining 11.25 balance by 1.5 to calculate a 16.875 percent right ear
monaural hearing loss. He then calculated 17 percent binaural hearing loss by multiplying the
right ear loss of 16.875 percent by 5, adding the 16.875 percent left ear loss and dividing this
sum by 6.18
Dr. Lomax determined that appellant’s tinnitus allowed another five percent award as
permitted by the A.M.A., Guides. In a factually similar case, C.W.,19 Dr. Lomax was also the
second opinion physician and opined summarily that a five percent award should be allowed for
tinnitus as it impacted appellant’s ability to perform activities of daily living. As in the present
case, the DMA in C.W. offered no opinion regarding tinnitus. The Board found that appellant

15

Supra note 10.

16

See Hildred I. Lloyd, 42 ECAB 944 (1991).

17

Supra note 14.

18

Supra note 10.

19

Supra, note 14.

5

was entitled to the additional five percent award for tinnitus. As in C.W., the Board will grant
appellant another five percent impairment for tinnitus.
Dr. Lomax determined that appellant sustained 22 percent binaural hearing loss. The
Board finds that he properly evaluated the evidence of record. Dr. Lomax’s report is entitled to
the weight of the medical evidence.20
CONCLUSION
The Board finds that appellant has established that he has a 22 percent permanent
bilateral hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: March 13, 2015
Washington, DC

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

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

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

20

Supra note 14.

6