United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Q.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Covina, CA, Employer
__________________________________________

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

Docket No. 14-1775
Issued: June 6, 2016

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 August 13, 2014 appellant filed a timely appeal from a July 24, 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.2
ISSUE
The issue is whether appellant has established a traumatic injury in the performance of
duty as alleged.

1

2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal after OWCP rendered its July 24, 2014
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 5, 2014 appellant, then a 43-year-old city mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that at 1:05 p.m. that day, he sustained a dog bite to his right calf
while delivering mail. He explained that when he stepped out of his postal vehicle in front of a
residence on his route, a dog living at the residence rushed him and bit his right calf. Appellant
screamed, shook the dog off, and then drove a few houses away and called 911. The dog’s
owner then approached appellant’s vehicle and threatened him. On the reverse of the form,
appellant’s supervisor checked boxes indicating that appellant was in the performance of duty at
the time of the claimed injury and that his knowledge of the incident agreed with appellant’s
account of events. Appellant stopped work on April 5, 2014.
In support of his claim, appellant submitted an April 5, 2014 hospital drug prescription
from Dr. James Kojian, an attending physician Board-certified in emergency medicine,
prescribing antibiotics. Emergency room forms directed that appellant receive after care
instructions for an animal bite. Appellant also submitted April 7 and 15, 2014 reports from
Dr. Chiang Wang, a chiropractor, diagnosing shoulder and low back sprains and right leg pain.
Dr. Wang held appellant off work through April 23, 2014.3
In a May 14, 2014 letter, OWCP advised appellant of the type of evidence needed to
establish his claim, including factual evidence supporting timely filing and performance of duty.
It noted that appellant had not yet submitted factual evidence corroborating his account of the
April 5, 2014 incident. OWCP also noted that appellant had not yet provided medical evidence
supporting that he sustained a dog bite as claimed. Appellant was afforded 30 days to submit
such evidence.
In response, appellant submitted an April 5, 2014 report from a county emergency
medical response unit, noting that at 2:17 p.m. that day, they responded to appellant’s call to find
him short of breath, with a “dog bite puncture right calf.” He also provided an April 5, 2014
ambulance transport report noting that he had been found at the scene “in driver’s seat of mail
truck complaining of r[ight] calf pain due to dog bite.” Appellant was then transported to a
hospital emergency room.
By decision dated July 24, 2014, OWCP denied appellant’s claim finding that fact of
injury was not established. It found that appellant submitted insufficient factual evidence to
establish that he was bitten by a dog on April 5, 2014 as alleged. OWCP noted that the April 5,
2014 ambulance report was insufficient to establish the incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA; that the claim was filed within the applicable
time limitation; that an injury was sustained while in the performance of duty as alleged; and that
any disability and/or specific condition for which compensation is claimed are causally related to
3

In an April 16, 2014 report, a medical management nurse noted that appellant had not yet returned to work.

2

the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP begins with an analysis of whether “fact of injury” has been established. Generally,
fact of injury consists of two components that must be considered conjunctively. First, the
employee must submit sufficient evidence to establish that he actually experienced the alleged
employment incident.6 Second, the employee must submit sufficient evidence, generally only in
the form of medical evidence, to establish that the employment incident caused a personal
injury.7 An employee may establish that the employment incident occurred as alleged, but fail to
show that his or her disability or condition relates to the employment incident.8
An employee has the burden of establishing the occurrence of an injury at the time, place,
and in the manner alleged, by a preponderance of the reliable, probative, and substantial
evidence. An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action.9 An employee has not met his or her burden of proof establishing
the occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient
doubt on an employee’s statement in determining whether a prima facie case has been
established. An employee’s statement alleging that an injury occurred at a given time and in a
given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.10
ANALYSIS
Appellant alleged that he sustained a dog bite injury to his right calf on April 5, 2014.
OWCP denied the claim by July 24, 2014 decision, finding that there was insufficient evidence
to establish that the April 5, 2014 incident occurred as alleged.
The Board finds that appellant has presented sufficient evidence to meet his burden of
proof to establish that the April 5, 2014 incident occurred as alleged. However, it further finds
4

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

5

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

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541,
547 (1991).
10

D.B., 58 ECAB 529 (2007); Gregory J. Reser, 57 ECAB 277 (2005).

3

that he had not met his burden of proof to establish that he sustained any disability causally
related to the incident on April 5, 2014, as he failed to submit sufficient medical evidence in
support of his claim.
On April 5, 2014 appellant was delivering mail when he alleges that he was bitten by a
dog. He made a contemporaneous report of the incident to his supervisor and called for an
ambulance. Thereafter, appellant was treated by first responders and later an emergency room
physician for an obvious dog bite to his right calf muscles. The employing establishment has not
controverted the incident as alleged in this claim. The Board therefore finds that appellant has
met his burden of proof to establish that the incident on April 5, 2014 occurred as alleged.
In response to an initial development letter from OWCP, appellant submitted an April 15,
2014 emergency medical services report form from the Los Angeles County Fire Department.
While this medical report is probative evidence as to the occurrence of the incident alleged, the
Board has held that reports from emergency medical technicians are insufficient to establish
disability as emergency medical technicians are not considered physicians as defined under
FECA.11 In addition, appellant submitted a signed form prescription slip from Dr. Kojain. The
prescription form offered no description of the event and was devoid of any opinion as to
medical causation. The Board has held that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value.12 Lastly, appellant
submitted an April 14, 2014 excuse note from the Chaing Wang Chiropractic Corp. The reports
from a chiropractor are of no probative medical value as he or she failed to diagnose spinal
subluxation or document whether x-rays were taken.13
The evidence of record lacks probative value on the issue of causation. As such, the
Board finds that appellant did not meet his burden of proof to establish his disability claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that the appellant has met his burden of proof to establish that the
April 5, 2014 incident occurred as alleged. The Board further finds that he has failed to establish
an injury in the performance of duty on April 5, 2014.

11

E.K., Docket 09-1827 (April 21, 2010).

12

C.B., Docket no. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

13

Section 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. The term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulations by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 24, 2014 is affirmed in part and modified as set forth in this
decision.14
Issued: June 6, 2016
Washington, DC

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

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

14

James A. Haynes, Alternate Judge participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 17-0109
Issued: August 8, 2017

Case Submitted on the Record

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

JURISDICTION
On October 25, 2016 appellant filed a timely appeal from a September 23, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has
permanent impairment of her upper extremity due to her accepted conditions thereby warranting
a schedule award.
FACTUAL HISTORY
On November 18, 1996 appellant, then a 41-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that she injured her lower back and her trapezoid and deltoid
1

5 U.S.C. § 8101 et seq.

muscles on November 8, 1996 while working on a conveyor belt. The claim was adjudicated by
OWCP under File No. xxxxxx290. The employing establishment controverted the claim. On
January 10, 1997 OWCP denied the claim. By decision dated July 7, 1998, a hearing
representative with OWCP’s Branch of Hearings and Review affirmed the January 10, 1997
decision.
On October 14, 1997 appellant filed an occupational disease claim (Form CA-2) alleging
that degenerative discs in her neck were due to years of carrying a mailbag as a letter carrier.2
OWCP adjudicated this claim under File No. xxxxxx474. On January 26, 1998 it accepted
aggravation of cervical spondylosis under File No. xxxxxx474.
Appellant appealed the July 7, 1998 decision to the Board.
In an order dated March 6, 2000 regarding File No. xxxxxx290, the Board set aside
OWCP’s July 7, 1998 decision and remanded the case to OWCP to combine File Nos.
xxxxxx290 and xxxxxx474.3 The claims were administratively combined by OWCP, with File
No. xxxxxx474 serving as the master file. It later accepted the claim for a neck sprain. In 2001
appellant was employed privately as a sales representative.
On January 23, 2006 appellant filed a schedule award claim (Form CA-7) under File No.
xxxxxx474.4 By letter dated February 7, 2006, OWCP informed her that, while schedule awards
were not paid for impairment to the spine, she may submit an impairment rating of her upper
extremities in accordance with the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).5
Thereafter, OWCP received an electrodiagnostic study dated February 1, 2005, which
indicated borderline right carpal tunnel syndrome, and no electrodiagnostic evidence of right
ulnar or cervical radiculopathy.
On May 19, 2006 OWCP asked appellant’s attending family physician, Dr. O’Connor, to
rate appellant’s impairment under the fifth edition of the A.M.A., Guides. In an October 13,
2006 report, Dr. O’Connor reported that maximum medical improvement was reached in 1997.
He advised that appellant was right-arm dominant, and had diminished biceps and triceps
2

The record indicates that appellant began a casual appointment as a letter carrier on August 24, 1992 and
worked as a noncareer employee for various periods through November 3, 1996. On November 9, 1996 appellant
began a career appointment as a mail handler and was terminated during the probationary period on December 26,
1996 for failure to meet the requirements of the position and failure to follow instructions.
3

Docket No. 99-0018 (issued March 6, 2000).

4

Appellant had previously filed two CA-7 claims for compensation on October 9, 2002, one for wage-loss
compensation and one for a schedule award. OWCP sent her a development letter on October 25, 2002. Appellant
did not respond or forward medical evidence until December 23, 2003 when she submitted a February 3, 2003 report
in which Dr. T.A. O’Connor, a family physician, discussed her current condition, but did not provide an impairment
evaluation. She also submitted a January 17, 2003 magnetic resonance imaging (MRI) scan of the cervical spine
that demonstrated degenerative changes at C5-6 and C6-7, resulting in left neural foraminal encroachment and
bulging disc.
5

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

2

reflexes, diminished right hand grasp, and progressive right upper extremity atrophy.
Dr. O’Connor indicated that appellant was unemployable due to C6-8 radiculopathy and had
daily stiffness, muscle contraction, and pain that required medication. He opined that she had
100 percent right arm permanent impairment.
In a report dated August 28, 2007, Dr. Jerome Lerner, an attending Board-certified
physiatrist, noted appellant’s complaints of cervicalgia, right shoulder, mid, and low back pain.
He reported that she developed neck pain while working for the employing establishment in the
1990s which progressed to right arm radiculopathy in approximately 2004. Dr. Lerner further
indicated that appellant had been in a motor vehicle accident in 2005 where she tore her right
rotator cuff and aggravated her other conditions. He described physical examination findings of
cervical spine tenderness with moderately reduced range of motion and mild weakness of right
biceps and triceps. Dr. Lerner diagnosed displacement of cervical disc without myelopathy,
cervical radiculopathy, and myalgia/myositis, not otherwise specified. He recommended
epidurals and physical therapy.
In a July 16, 2008 report, Dr. Amon Ferry, a Board-certified orthopedic surgeon and an
OWCP medical adviser, related his review of the record including the reports of Dr. O’Connor
and Dr. Lerner. He noted the dramatic discrepancies in their physical examinations and
recommended an impairment evaluation by an orthopedic surgeon as the existing evidence was
not in posture for an impairment rating.
A statement of accepted facts (SOAF) dated May 7, 2010 indicated that the accepted
conditions were cervical spondylosis without myelopathy, closed dislocation first cervical
vertebral, brachial neuritis or radiculitis, cervicalgia, and neck sprain.
Appellant moved from Wisconsin to Arkansas in 2013. She contacted OWCP regarding
her schedule award claim in February 2015.
By decision dated September 23, 2016, OWCP denied appellant’s schedule award claim,
finding that the medical evidence of record was insufficient to establish upper extremity
impairment in accordance with the sixth edition of the A.M.A., Guides.6
LEGAL PRECEDENT
It is the claimant’s burden of proof to establish a permanent impairment of a scheduled
member or function as a result of any employment injury.7
The schedule award provisions of FECA,8 and its implementing federal regulations,9 set
forth the number of weeks of compensation payable to employees sustaining permanent
6

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

7

See Tammy L. Meehan, 53 ECAB 229 (2001).

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

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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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.10 For decisions issued
after May 1, 2009, the sixth edition will be used.11
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.12 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.14 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables outlined in a JulyAugust 2009 The Guides Newsletter.15 Specifically, OWCP will address lower extremity
impairments originating in the spine through Table 16-1116 and upper extremity impairment
originating in the spine through Table 15-14.17
ANALYSIS
The Board finds that this case is not in posture for decision regarding appellant’s
permanent impairment due to the accepted conditions. Under File Nos. xxxxxx474 and
xxxxxx290, OWCP accepted cervical spondylosis without myelopathy, closed dislocation first
cervical vertebra, brachial neuritis or radiculitis, cervicalgia, and neck sprain.

10

Id. at § 10.404(a).

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
12

Pamela J. Darling, 49 ECAB 286 (1998).

13

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

14

Rozella L. Skinner, 37 ECAB 398 (1986).

15

FECA Transmittal No. 10-04 (issued January 9, 2010); supra note 11 at Chapter 3.700, Exhibit 1, note 5
(January 2010); The Guides Newsletter is included as Exhibit 4.
16

Supra note 6 at 533.

17

Id. at 425.

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Dr. O’Connor, an attending family physician, advised that appellant was right arm
dominant, and had diminished biceps and triceps reflexes, diminished right hand grasp, and
progressive right upper extremity atrophy. He indicated that appellant was unemployable due to
C6-8 radiculopathy and had daily stiffness, muscle contraction, and pain that required
medication. Dr. O’Connor opined that appellant had 100 percent right arm permanent
impairment.
Dr. Lerner, an attending physiatrist, described examination findings of cervical spine
tenderness with moderately reduced range of motion and mild weakness of right biceps and
triceps. He diagnosed displacement of cervical disc without myelopathy, cervical radiculopathy,
and myalgia/myositis, not otherwise specified.
A review of the case record shows that Dr. Ferry, an OWCP medical adviser, noted on
July 16, 2008 that there were discrepancies in the physical examinations of Dr. O’Connor and
Dr. Lerner and recommended that appellant have an impairment evaluation by an orthopedic
surgeon. OWCP, however, did not refer appellant for a second opinion evaluation, and the case
was thereafter dormant for several years. Proceedings under FECA are not adversarial in nature
and OWCP is not a disinterested arbiter. While the claimant has the burden of proof to establish
entitlement to compensation, OWCP shares responsibility in the development of the evidence.
Once it has begun an investigation of a claim, it must pursue the evidence as far as reasonably
possible. OWCP has an obligation to see that justice is done.18
Accordingly, the Board finds this case is not in posture for decision. Further
development is required on the issue of whether appellant is entitled to schedule awards for the
accepted cervical and brachial conditions. On remand OWCP shall prepare an updated SOAF
and refer appellant to an appropriate specialist for an opinion on appellant’s permanent
impairment due to the accepted conditions, in accordance with section 3.700 of OWCP
procedures, which memorializes proposed tables outlined in a July-August 2009 The Guides
Newsletter.19 Following this and other development deemed necessary, OWCP shall issue a de
novo decision on appellant’s claim for a schedule award for the accepted conditions.20
CONCLUSION
The Board finds this case not in posture for decision.

18

A.A., 59 ECAB 726 (2008).

19

Supra note 15.

20

See M.D., Docket No. 13-503 (issued September 19, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the September 23, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: August 8, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 13-824
Issued: July 17, 2013

Case Submitted on the Record

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

JURISDICTION
On February 25, 2013 appellant filed a timely appeal from the November 30, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
greater than 21 percent bilateral hearing loss, for which he received a schedule award.
FACTUAL HISTORY
On October 31, 2011 appellant, then a 40-year-old dog handler, filed an occupational
disease claim alleging a hearing loss as a result of exposure to loud noise in his federal
employment. He first related his condition to his work on October 28, 2011. Appellant
1

5 U.S.C. § 8101 et seq.

explained that he was exposed daily to high-pitched barking and other noise from trains, planes
and tractor trailers.
In support of his claim, appellant submitted an employing establishment report, dated
October 24, 2011 from F. Rosenberg, an employing establishment medical officer, who noted
that appellant had severe hearing loss and a repeat audiogram indicated a standard threshold
shift. Mr. Rosenberg recommended that appellant obtain a complete hearing evaluation by a
specialist. An October 24, 2011 audiogram prepared by Dr. Chi D. Nguyen, a Board-certified
otolaryngologist, was submitted to the record.
OWCP advised appellant on November 14, 2011 of the deficiencies in his claim. It
requested additional information regarding his employment history, exposure to hazardous noise
at work, development of his hearing loss, as well as medical documents concerning his hearing
loss.
Appellant submitted a November 6, 2011 statement, in which he reviewed his
employment history. Regarding his current employment, he noted that from February 3, 1997
his duties as a customs and border protection officer and a narcotic dog handler exposed him to
noise from high-pitched canine barking noises, tractor trailer air brakes, diesel engine noise, as
well as jet engine noise.
On December 20, 2011 OWCP referred appellant for a second opinion examination by
Dr. Gregory S. Rowin, Board-certified in otolaryngology.
In a January 26, 2012 report, Dr. Rowin stated that appellant had sustained a mild-tomoderately severe sensorineural hearing loss in both ears that was due to noise exposure in his
employment. The audiogram for the right ear showed, at the respective frequencies of 500,
1,000, 2,000 and 3,000 Hertz (Hz), hearing levels of 35, 40, 45 and 40 decibels and for the left
ear, 30, 30, 45, and 30 decibels. The equipment was calibrated on October 13, 2011. Dr. Rowin
also assigned five percent binaural hearing impairment for tinnitus.
OWCP forwarded the record to a medical adviser for review. On March 5, 2012
Dr. Michael M. Katz, an OWCP medical adviser, reviewed Dr. Rowin’s report and the
audiometric test dated January 26, 2012. He concluded that appellant had an employmentrelated noise-induced sensorineural hearing loss in both ears. In accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides), Dr. Katz determined that appellant had a 21 percent binaural
sensorineural hearing loss. The date of maximum medical improvement was January 26, 2012.
In a March 7, 2012 decision, OWCP accepted appellant’s claim of bilateral noise-induced
hearing loss.
By decision dated November 30, 2012, OWCP granted appellant a schedule award for 21
percent binaural hearing loss which covered 42 weeks from January 26 to November 14, 2012.

2

LEGAL PRECEDENT
The schedule award provision of FECA2 provides compensation to employees sustaining
permanent loss or loss of use, of specified members of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such a determination is a matter which results 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
has been adopted by OWCP for evaluating schedule losses and the Board has concurred in such
adoption.3
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged.5 The remaining amount is multiplied by a factor of 1.5 to
arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.7 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.8
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of a disease or injury.9 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.10
OWCP procedures require that all audiological equipment authorized for testing meet the
calibration protocol contained in the accreditation manual of the American Speech and Hearing

2

5 U.S.C. §§ 8101-8193.

3

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

4

A.M.A., Guides 250.

5

Id.

6

Id.

7

Id.

8

Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

9

See A.M.A., Guides 249.

10

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

3

Association and that audiometric test results include both bone conduction and pure tone air
conduction thresholds, speech reception thresholds and monaural discrimination scores.11
ANALYSIS
To determine the nature and extent of appellant’s hearing loss, OWCP referred appellant
to Dr. Rowin, a Board-certified otolaryngologist, for a second opinion evaluation. Dr. Rowin
diagnosed bilateral sensorineural hearing loss due to appellant’s employment-related noise
exposure. He attached a January 26, 2012 audiogram showing hearing levels of 35, 40, 45 and
40 decibels in the right ear and 30, 30, 45 and 35 decibels in the left ear at Hz levels of 500,
1,000, 2,000 and 3,000, respectively. Dr. Rowin also advised that appellant had tinnitus that
interfered with activities of daily living. He calculated a 21.25 percent binaural hearing loss,
based on 22.5 percent right ear and 15 percent left ear monaural hearing loss and 5 percent
hearing loss for tinnitus. Dr. Rowin indicated a maximum medical improvement date of
January 26, 2012.
OWCP referred the medical evidence to Dr. Katz, an OWCP medical adviser for a rating
of permanent impairment in accordance with the A.M.A., Guides. In a March 5, 2012 report,
Dr. Katz applied the findings of the January 26, 2012 audiogram to calculate 21 percent binaural
hearing loss. In accordance with page 247 of the A.M.A., Guides, he averaged appellant’s
hearing levels of 35, 40, 45 and 40 decibels in the right ear and 30, 30, 45 and 35 decibels in the
left ear at Hz levels of 500, 1,000, 2,000 and 3,000, respectively, to find average hearing levels
of 35 on the left and 40 on the right. The medical adviser then subtracted a 25-decibel fence and
multiplied the remaining balance, of 10 on the left and 15 on the right, by 1.5 to calculate 15
percent left ear monaural loss and 22.5 percent right ear monaural loss. Using page 250 of the
A.M.A., Guides, he calculated binaural hearing loss by multiplying the lesser left ear monaural
loss of 15 percent by 5, adding the greater 22.5 percent right ear loss and dividing this sum by 6.
The medical adviser found a total binaural loss of 16 percent to which he added 5 percent for
tinnitus as recommended by Dr. Rowin. This resulted in 21 percent binaural hearing
impairment. The Board finds that the medical adviser properly applied the A.M.A., Guides in
calculating that appellant sustained 21 percent binaural hearing loss.
As OWCP’s medical adviser properly applied the A.M.A., Guides in calculating
appellant’s impairment rating, OWCP correctly relied on his opinion to find that appellant
sustained 21 percent binaural hearing loss.12 The Board finds that there is no evidence of greater
impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained greater than 21 percent bilateral hearing loss, for which he received a schedule award.

11

Robert E. Cullison, supra note 10; J.H., Docket No. 08-2432 (issued June 15, 2009). See Federal (FECA)
Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010).
12

See Linda Beale, 57 ECAB 429 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the November 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Palatine, IL,
Employer
__________________________________________

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

Docket No. 18-1328
Issued: March 23, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 20, 2018 appellant filed a timely appeal from a January 25, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $17,071.05 because she concurrently received Social Security Administration (SSA)
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 25, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

age-related retirement benefits and FECA wage-loss compensation for the period June 1, 2016 to
July 22, 2017, without an appropriate offset; (2) whether OWCP properly determined that she was
at fault in the creation of the overpayment of compensation, thereby precluding waiver of recovery
of the overpayment; and (3) whether it properly required recovery of the overpayment by
deducting $75.00 every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On July 1, 2010 appellant, then a 56-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained a left shoulder sprain while
in the performance of duty. OWCP accepted the claim for other affections of the left shoulder
not otherwise classified, and a sprain of the left shoulder, upper arm, and rotator cuff. Appellant
stopped work on October 8, 2010 and did not return. On December 2, 2010 she underwent
authorized left shoulder arthroscopic surgery. OWCP paid appellant wage-loss compensation
on the supplemental rolls commencing October 8, 2010 and on the periodic rolls commencing
March 13, 2011.3
On July 14, 2017 SSA provided a Federal Employees Retirement System (FERS/SSA)
dual benefit calculation worksheet to OWCP. SSA indicated that, beginning June 2016, appellant
was entitled to full retirement benefits. It provided SSA benefit rates beginning June 2016 with
and without FERS offset. With FERS, appellant was entitled to a monthly SSA rate of $1,325.90
effective June 2016, $1,329.80 effective December 2016, and $1,340.80 effective July 1, 2017.
Without FERS, she would have been entitled to a monthly SSA rate of $76.60 effective June 2016,
$76.90 effective December 2016, and $107.50 effective July 1, 2017.
In a letter dated July 27, 2017, OWCP notified appellant that, based on the information
provided by SSA regarding the amount of her SSA age-related retirement benefits which were
attributable to federal service, it had adjusted her FECA wage-loss compensation.
OWCP completed a FERS offset calculation form on September 13, 2017. It determined
the 28-day FERS offset amount for the days in each period from June 1, 2016 to July 22, 2017 and
computed a total overpayment of $17,071.05.
On September 13, 2017 OWCP issued a preliminary determination that appellant had been
overpaid compensation in the amount of $17,071.05 because she received FECA wage-loss
compensation benefits concurrently with SSA retirement benefits from June 1, 2016 to
July 22, 2017 without an appropriate offset for the portion of the SSA benefits that were
attributable to her federal service. It calculated the overpayment amount by determining the
difference between her SSA benefits with and without FERS for each period and adding these
amounts to find a total overpayment of $17,071.05. OWCP further advised appellant of its
preliminary determination that she was at fault in the creation of the overpayment because she was
aware or should have reasonably been aware that she was not entitled to receive both SSA
retirement benefits and FECA benefits. It requested that she submit an overpayment action request
3
By decision dated January 14, 2015, OWCP reduced appellant’s wage-loss compensation as it found that her
actual earnings as a van driver, effective June 23, 2014, fairly and reasonably represented her wage-earning capacity.

2

form and an overpayment recovery questionnaire (Form OWCP-20). OWCP afforded appellant
30 days to respond.
On September 27, 2017 appellant requested a telephonic hearing on the issues of fault and
possible waiver of recovery of the overpayment. She asserted that she was without fault in the
creation of the overpayment. Appellant submitted a completed overpayment recovery
questionnaire (Form OWCP-20).
During a December 13, 2017 telephone conference, appellant reported her monthly income
and expenses. She asserted that she was advised by a representative that she could receive SSA
age-related retirement benefits as long as her yearly income did not exceed $15,000.00.
By decision dated January 25, 2018, OWCP finalized the preliminary determination that
appellant had received a $17,071.05 overpayment of compensation for the period June 1, 2016 to
July 22, 2017. It determined that she was at fault in the creation of the overpayment and was,
therefore, precluded from waiver of recovery of the overpayment. OWCP required recovery of
the overpayment by deducting $75.00 every 28 days from appellant’s continuing compensation
payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.4 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.5
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service.6 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA age-related retirement benefits because the portion of the
SSA benefit earned as a federal employee is part of the FERS retirement package, and the receipt
of FECA benefits and federal retirement concurrently is a prohibited dual benefit.7
OWCP’s procedures provide that, once an overpayment is identified, it is responsible for
determining whether the claimant was with fault or without fault, issuing a preliminary finding,
and unless a hearing is requested, OWCP is responsible for issuing a final decision.8 These
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

7

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

8
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a)(2) (May 2004).

3

procedures note that, if the claimant is determined to be without fault, a preliminary overpayment
determination must be released along with a Form OWCP-20 within 30 days of the date the
overpayment is identified. Both the reason that the overpayment occurred and the reason for the
finding of without fault must be clearly provided. A preliminary overpayment determination
informs the claimant of the right to submit evidence and the right to a prerecoupment hearing on
the issues of: (a) fact and amount of overpayment; and (b) waiver of recovery of the overpayment.
Along with the preliminary overpayment determination, OWCP should provide a clearly written
statement explaining how the overpayment was created.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of wage-loss compensation in the amount of $17,071.05 because she concurrently
received SSA age-related retirement benefits while also receiving FECA benefits for the period
June 1, 2016 through July 22, 2017, without an appropriate offset.
As noted above, OWCP’s procedures provide that a preliminary finding notice must be
released along with a Form OWCP-20 overpayment recovery questionnaire within 30 days of the
date the overpayment is identified.10
In this case, on July 14, 2017 an overpayment of compensation was identified in a form
received by OWCP in connection with the employee receiving SSA age-related retirement benefits
wherein SSA advised OWCP that the employee had concurrently received FECA and SSA agerelated retirement benefits based on FERS contributions during the period June 1, 2016 through
July 22, 2017. It was not until September 13, 2017, however, that OWCP issued a preliminary
determination, finding an overpayment in the amount of $17,071.05 had been created for the period
June 1, 2016 through July 22, 2017, more than 30 days after the overpayment was identified.
The Board, thus, finds that OWCP did not follow its own procedures in issuing the
January 25, 2018 final overpayment determination as it did not issue a preliminary notice of
overpayment within 30 days of identifying an overpayment based upon appellant’s receipt of SSA
age-related retirement benefits.11
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $17,071.05 during the period June 1, 2016 to
July 22, 2017.

9

Id.; see also P.H., Docket No. 18-1539 (issued August 2, 2019).

10

Supra note 7.

11
P.B. (A.B.), Docket No. 19-0605 (issued February 19, 2020). In light of the Board’s disposition of Issue 1, Issues
2 and 3 are rendered moot.

4

ORDER
IT IS HEREBY ORDERED THAT the January 25, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 23, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1129
Issued: August 14, 2015

Case Submitted on the Record

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

JURISDICTION
On April 21, 2015 appellant, through counsel, filed a timely appeal from a March 26,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 31 percent right leg permanent
impairment.
FACTUAL HISTORY
The case has previously been before the Board. By decision dated May 4, 2007, the
Board affirmed an October 3, 2006 schedule award decision for a nine percent right leg

1

5 U.S.C. § 8101 et seq.

impairment.2 The Board noted that the claim had been accepted for a right knee sprain and a
medial meniscus tear incurred while in the performance of duty on June 4, 2002. The medical
evidence established that appellant had a nine percent right leg impairment based on reduced
cartilage interval in the right knee and a partial medial meniscectomy.
In a decision dated September 22, 2014, the Board reviewed an April 9, 2014 OWCP
overpayment decision.3 OWCP had found that an overpayment of $3,456.72 had been created
when appellant was paid two compensation payments after his return to work on July 26, 2013.
The Board affirmed a $3,456.72 overpayment, but found appellant was not at fault in accepting
the initial direct deposit compensation payment after his return to work. In addition, the Board
found that OWCP could recover an overpayment from a schedule award.
Appellant sought an additional permanent impairment, and submitted an October 11,
2013 report from Dr. Michael Platto, a Board-certified physiatrist. Dr. Platto provided a history
and results on examination. Measuring the range of motion under the diagnosis-based evaluation
method for the right knee for flexion after three trials he found 102, 105, and 106 degrees. For
extension (flexion contracture), the results were 18, 16, and 15 degrees. Dr. Platto identified
Table 16-3, the knee regional grid, and opined that appellant had a class 4 impairment for total
knee replacement, poor result with moderate loss of range of motion. He determined that
appellant had a 59 percent right leg permanent impairment under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.
In a report dated March 22, 2014, an OWCP medical adviser found that using Table 16-3
appellant had a 31 percent right leg impairment. He found that appellant’s impairment was a
class 3, for total right knee arthroplasty with mild loss of range of motion.
By decision dated April 1, 2014, OWCP issued a schedule award for an additional 22
percent permanent impairment to the right leg. The period of the award was 63.36 weeks from
August 25, 2013.4
On December 26, 2014 appellant requested an additional schedule award and submitted a
December 15, 2014 report from Dr. Platto.5 He provided a history and results of the
December 15, 2014 examination. Dr. Platto reported right knee flexion of 115 degrees and
flexion contracture of 12 degrees. He noted that the flexion contracture was a moderate loss of
range of motion. Dr. Platto noted this was actually an improvement from the October 11, 2013
examination, but remained a moderate loss of range of motion. He opined that under Table 16-3
appellant had a 59 percent right leg impairment.
2

Docket No. 07-82 (issued May 4, 2007).

3

Docket No. 14-1133 (issued September 22, 2014).

4

An appeal was filed with the Board April 9, 2014. The Board reviewed the April 1, 2014 decision but, by
decision dated July 2, 2015, remanded the case because a conflict of medical opinion existed between Dr. Platto and
the medical adviser. Docket No. 14-1077 (issued July 2, 2015).
5

Appellant used the term “reconsideration” but the submission of new medical evidence suggested a request for
an increased schedule award.

2

By decision dated March 26, 2015, OWCP denied modification of the April 1, 2014
decision. It stated that the issue was “not whether the claimant’s condition has changed, but
whether there is evidence to show that the decision of [April 1, 2014] was in error.” OWCP
found the prior report from the medical adviser was the weight of the evidence.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.6 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.7 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.8
To the extent that a claimant asserts that a schedule award decision was erroneous based
on his or her medical condition at that time, this would properly be considered a request for
reconsideration.9 A claimant may, however, seek an increased schedule award if the evidence
establishes that he sustained increased impairment at a later date causally related to the accepted
employment injury. Even if the term reconsideration is used, when a claimant is not attempting
to show error in the prior schedule award decision and submits medical evidence regarding a
permanent impairment at a date subsequent to the prior schedule award decision, it should be
considered a claim for an increased schedule award.10 A proper claim for an increase in
permanent impairment is not subject to time limitations or to the clear evidence of error
standard.11
ANALYSIS
While the April 1, 2014 OWCP decision was on appeal to the Board, appellant submitted
a new medical report from Dr. Platto dated December 15, 2014 requesting an additional
impairment. Dr. Platto provided an opinion as to a permanent impairment to the right leg, based
on appellant’s current examination. As noted above, even if the term reconsideration is used, the
new medical evidence requires that OWCP considered a claim for an increased schedule award.12
6

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
7

A. George Lampo, 45 ECAB 441 (1994).

8

FECA Bulletin No. 09-03 (March 15, 2009).

9

See J.K., Docket No. 14-1082 (issued November 24, 2014).

10

B.K., 59 ECAB 228 (2007).

11

R.P., Docket No. 10-1123 (issued January 25, 2011).

12

See also D.P., Docket No. 15-173 (issued March 9, 2015).

3

In the March 26, 2015 decision, OWCP incorrectly stated that the only issue was whether there
was error in the April 1, 2014 OWCP decision. As that decision was on appeal to the Board,
OWCP lacked jurisdiction over that decision.13
The case will be remanded to OWCP for proper consideration of the claim as a request
for an increased schedule award. After appropriate further development, OWCP should issue a
de novo decision.
CONCLUSION
The Board finds that appellant requested an increased schedule award and the case is
remanded for proper development under the proper standard of review.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 26, 2015 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: August 14, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

See 20 C.F.R. § 10.626. The Board notes that upon review of the April 1, 2014 schedule award, the Board on
July 2, 2015 remanded the case for resolution of a conflict in medical opinion.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MIDDLETON MEMORIAL VETERANS
HOSPITAL, Madison, WI, Employer
__________________________________________

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Appearances:
Appellant, pro se
Hans K. Wild, for the Director

Docket No. 13-99
Issued: May 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 18, 2012 appellant filed a timely appeal from the September 25, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on October 3, 2011.
FACTUAL HISTORY
On October 6, 2011 appellant, then a 38-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that at 4:00 p.m. on October 3, 2011 he sustained a work-related left
1

5 U.S.C. §§ 8101-8193.

biceps tendon rupture. He indicated that the injury occurred while performing free weight bicep
curls at the Princeton Club Fitness Center in Madison, WI.2 On the Form CA-1, Jerry Pierce, a
supervisor, indicated that the injury was not sustained in the performance of duty because it
occurred off the premises of the employing establishment while appellant was not on duty. He
stated that appellant was not required to attend gym training.
In an October 5, 2011 statement, appellant argued that his claimed injury on October 3,
2011 should be accepted because it occurred while he was maintaining physical fitness for his
job. He asserted that the employing establishment had a reasonable expectation that he remain
physically fit by exercising on his days off work.
By letter dated October 13, 2011, Cindy Gehrt, an employing establishment official,
controverted appellant’s claim, asserting that he was not in the performance of duty at the time of
his October 3, 2011 injury. She indicated that there was no requirement that appellant pass a
physical fitness test or engage in fitness training.
On November 4, 2011 OWCP requested that appellant answer a five-question
Performance of Duty Questionnaire and provide further evidence in support of his claim.
On November 21, 2011 appellant provided answers to the Performance of Duty
Questionnaire, asserting that he must pass an annual physical examination, participate in an offduty fitness routine as directed by Training Unit 19, Physical Fitness For VA (Veterans
Administration) Police Officers, and achieve certification as a ground defense and recovery
instructor every two years by passing a mandatory physical fitness test. He claimed that the
employing establishment benefited by having a police officer who is physically fit.
In a November 23, 2011 letter, the employing establishment again stated that appellant
was not in the performance of duty at the time of his injury. It indicated that Training Unit 19,
while written by the Police Academy at the agency, did not constitute a required regulation.3
By decision dated December 14, 2011, OWCP denied appellant’s claim finding that he
was not injured in the performance of duty on October 3, 2011 because he was not participating
in an employing establishment-sponsored physical fitness plan, but rather was exercising during
nonduty time and at a private fitness center.
In a December 17, 2011 letter, appellant requested reconsideration of his claim. He
stated that Training Unit 19 was the agency’s physical fitness plan and was “prescribed training
that [o]fficers are expected to follow.” By written statement dated January 18, 2012, appellant
stated that Training Unit 19 was the agency’s physical fitness plan and he submitted a copy of
Training Unit 19. He also stated that police officers were not provided with facilities or duty
hours to conduct fitness routines, so officers were left with no choice but to exercise during
nonduty time at a personally selected physical fitness center.
2

The record reveals that Princeton Club Fitness Center is a private facility.

3

It was noted that appellant was required to participate in an annual medical examination and demonstrate certain
abilities, but his position required no participation in a physical fitness program.

2

In an April 27, 2012 decision, OWCP affirmed its December 14, 2011 decision. It stated
that the employing establishment explained that Training Unit 19, while written by the Police
Academy at the agency, was not a required regulation. Per the VA Handbook, appellant was
required to participate in an annual medical examination and demonstrate certain abilities, but his
position required no participation in a physical fitness program. OWCP noted that workouts for
the purpose of remaining fit were not required by the employing establishment.
On May 5, 2012 appellant again requested reconsideration. By written statement,
received May 14, 2012, he asserted that Training Unit 19 and all the training units are “rules and
regulations expected of the [p]olice force.” Appellant also stated that he is a certified VA
Ground Defense and Recovery Instructor and a “VA Police instructor must pass a mandatory
fitness test in order to be certified as an instructor.”
By letter dated June 4, 2012, the employing establishment responded that a police officer
is only required to take an annual medical examination, not a physical fitness test. Appellant’s
position as ground training instructor was a voluntary position, and Training Unit 19 was only a
“recommendation” to police officers to maintain good physical fitness.
In an August 6, 2012 letter, appellant responded that he was a certified defensive tactics
instructor and that defensive tactics instructors had to take a mandatory fitness test prior to being
certified. The certification was good for a couple of years and then a recertification physical
training test was conducted. Appellant stated, “I was injured in the course of employment in
preparations for these very tests, along with preparing for the annual employee physical.”
In a September 25, 2012 decision, OWCP affirmed its April 27, 2012 denial of
appellant’s claim. It stated that there was no evidence to substantiate his claim the that
employing establishment “required, persuaded, or permitted” participation in a fitness program at
a private health club. Training Unit 19 was an educational tool for the benefits of good physical
conditioning and maintaining an appropriate level of fitness, but left the development of a fitness
plan to the individual. OWCP noted that the file did not contain any evidence that the employing
establishment sponsored or financed appellant’s private health club exercise activity and
indicated that participation in this activity was at his discretion. With respect to his assertion,
appellant was required to pass a mandatory fitness test to be certified as a defensive tactics
instructor, OWCP found his participation as an instructor was voluntary, not an express or
implied requirement of his employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence including that he or she sustained an injury in the performance of duty.4 FECA
provides for payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.5 The phrase “sustained while in the
4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447, 450 (2008).

5

5 U.S.C. § 8102(a).

3

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.”6 “In the
course of employment” relates to the elements of time, place and work activity.7 To arise in the
course of employment, an injury must occur at a time when the employee may reasonably be
said to be engaged in his or her master’s business, at a place when he or she may reasonably be
expected to be in connection with his or her employment, and while he or she was reasonably
fulfilling the duties of his or her employment or engaged in doing something incidental thereto.8
As to the phrase “in the course of employment,” the Board has accepted the general rule of
workers’ compensation law that, as to employees having fixed hours and places of work, injuries
occurring on the premises of the employing establishment, while the employees are going to or
from work, before or after working hours or at lunch time, are compensable.9 As a general rule,
off-premises injuries sustained by employees having fixed hours and place of work are not
compensable as they do not arise out of and in the course of employment.10
With regard to recreational or social activities, the Board has held that such activities
arise in the course of employment when: (1) they occur on the premises during a lunch or
recreational period as a regular incident of the employment; or (2) the employing establishment,
by expressly or impliedly requiring participation, or by making the activity part of the service of
the employee, brings the activity within the orbit of employment; or (3) the employing
establishment derives substantial direct benefit from the activity beyond the intangible value of
improvement in employee health and morale that is common to all kinds of recreation and social
life.11
OWCP’s procedures address “Employing Agency Physical Fitness Programs [PFP]” and
provides that “employees enrolled in a PFP are in the performance of duty for FECA purposes
while doing authorized PFP exercise, including off-duty exercises.” Under Part 2.804.18(c),
“Forms CA-1 which attribute an injury to PFP activity must be accompanied by a statement from
the employee’s supervisor indicating that the employee was enrolled in the PFP, and that the
injury was sustained while the employee was performing authorized exercises under the
program.”12
ANALYSIS
Appellant alleged that on October 3, 2011 he sustained a work-related left biceps tendon
rupture while performing free weight bicep curls at the Princeton Club Fitness Center. The
6

See Bernard D. Blum, 1 ECAB 1 (1947).

7

G.N., Docket No. 12-261 (issued July 23, 2012).

8

Id.

9

Narbik A. Karamian, 40 ECAB 617, 618 (1989).

10

Mary Keszler, 38 ECAB 735, 739-40 (1987).

11

See Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); A. Larson, The Law of Workers’ Compensation § 22.00 (2012).

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.18 (March 1994).

4

Board finds that he has not established that he sustained an injury in the performance of duty on
October 3, 2011.
Applying the time, place and work activity criteria to this case, there is no evidence to
establish that appellant was in the performance of duty on October 3, 2011. His alleged injury
did not occur during his work hours as October 3, 2011 was a scheduled day off. Appellant’s
injury did not occur on the premises of the employing establishment, but at a local fitness club.
Thus, two important criteria of “course-of-employment,” time of the alleged injury and place of
the alleged injury, have not been met in this case.13
The employing establishment has consistently stated that appellant’s position did not
require participation in a PFP. Training Unit 19 was only a recommendation for better health
and he was not in the performance of duty at the time of his alleged injury. The employing
establishment did not provide a statement that appellant was enrolled in a PFP or that he was
injured while participating in a PFP. Thus, without the required support from the employing
establishment, he may not rely upon OWCP procedure to support his claim for a work-related
injury.14
With respect to an express or implied requirement to participate in weight lifting at the
Princeton Club Fitness Center, the evidence reveals that appellant’s physical fitness routine was
voluntary. It was not an express or implied requirement of his employment, but rather there was
a general encouragement by his employer to maintain good health. The Board has noted that
when the degree of employing establishment involvement descends from compulsion to mere
sponsorship or encouragement, the questions become closer and the test includes whether the
employing establishment sponsored or financed the event and whether attendance was
voluntary.15
Appellant asserted that he was required to maintain his physical fitness in order to work
as a police officer. However, the employing establishment disputes any requirement for police
officers to participate in a physical fitness program and did not sponsor or finance his
membership at the Princeton Club Fitness Center. Appellant further asserted that he was
required to follow the dictates of Training Unit 19. The evidence reveals that Training Unit 19
was not a regulation, but rather constituted an educational tool for the benefit of good physical
health. The employing establishment encouraged appellant to follow Training Unit 19, but did
not require or compel him to engage in a physical fitness program as a requirement of his
employment. Appellant asserted that he was required to pass a mandatory physical fitness test in
order to maintain his certification as a defensive tactics instructor. However, certification in this
field was voluntary and not a requirement of employment.
With regard to the characterization of appellant’s weightlifting workout at the Princeton
Club Fitness Center as a “recreational or social activity” of his employer, his alleged injury does
13

See supra notes 7 through 10.

14

See supra note 12.

15

Kenneth B. Wright, 44 ECAB 176, 183 (1992).

5

not fall within the performance of duty. The activity of weightlifting occurred while he was off
duty and while he was off premises and the employing establishment did not expressly or
impliedly require him to lift weights, perform a physical fitness program or be a member of a
private health club. Appellant voluntarily participated in a physical fitness program and the
employing establishment did not financially assist, sponsor, or exercise control over his exercise
program. The employing establishment did not derive any substantial direct benefit from his
participation in the exercise program except for the intangible value of improvement in employee
health and morale that is common to all kinds of recreation and social life.16
The Board notes that the facts of appellant’s case are similar to those of Z.C., Docket No.
12-330 (issued June 19, 2012). In that case, a police officer for the Department of Veterans
Affairs filed a traumatic injury claim alleging that he ruptured his right Achilles tendon on his
day off during a self-defense tactics class at a private fitness club. The police officer claimant
asserted that staying in shape and maintaining physical fitness and defensive tactics skills by
taking a defensive tactics class were work-related tasks because he was being taught skills
similar to those required by his employment as a police officer and he was able to improve his
performance on required employing establishment physical fitness recertification tests. The
claimant submitted a copy of Training Unit 19 in support of his claim. The Board found that the
claimant in Z.C. did not sustain an injury in the performance of duty noting that the claimant’s
participation in the self-defense class was voluntary and was not an express or implied
requirement of his employment. The Board pointed out that the intangible value of improved
health or morale, in and of itself, does not bring a recreational activity within the orbit of
employment. Given the similarity of the facts in Z.C. and the present case, the reasons for the
denial of coverage in Z.C. would also apply to the present case.
For these reasons, appellant did not establish that he sustained an injury in the
performance of duty on October 3, 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on October 3, 2011.

16

See supra note 11.

6

ORDER
IT IS HEREBY ORDERED THAT the September 25, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
TENNESSE VALLEY AUTHORITY, DIVISION
OF NUCLEAR POWER, Chattanooga, TN,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Ronald K. Bruce, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0471
Issued: August 8, 2017

Case Submitted on the Record

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

JURISDICTION
On December 28, 2016 appellant, through counsel, filed a timely appeal from a
November 28, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish hearing loss causally
related to the accepted factors of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On April 16, 2013 appellant, then a 53-year-old boilermaker, filed an occupational
disease claim (Form CA-2) alleging that he sustained hearing loss as a result of his federal
employment. He first became aware of his condition on January 1, 2003 and realized that it
resulted from his federal employment on April 4, 2013. Appellant reported that he first learned
about his work-related hearing loss when he reviewed the April 4, 2013 report of Dr. William
Logan, a Board-certified otolaryngologist. The employing establishment noted that appellant
first reported the condition to his supervisor on May 21, 2013 and was last exposed to the
conditions alleged to have caused his condition on January 30, 1989.
Appellant provided an undated statement with a detailed description of the dates and
various locations where he worked as a boilermaker for the employing establishment.4
Dr. Logan noted in a March 19, 2013 report that appellant complained of hearing loss and
that he had worked around loud noise for a number of years as a boilermaker. He reviewed
appellant’s history and conducted an examination. Dr. Logan reported no deformity or discharge
of appellant’s ears. He related that an audiogram revealed mild sensorineural hearing loss on the
right at 500 hertz (Hz) and moderate hearing loss at 3,000 to 4,000 Hz rising back to mild at
6,000 Hz and a mild sensorineural hearing loss at 4,000 to 8,000 Hz on the left. Dr. Logan
diagnosed sensorineural hearing loss. He recommended that appellant use ear protection around
loud noise and avoid unnecessary exposure to loud noise.
Appellant provided an August 28, 2013 report by Whitney R. Mauldin, a Board-certified
audiologist, who noted that appellant worked at numerous power plants and other companies for
the past 24 years where he was exposed to excessive noise other than his federal employment.
Dr. Mauldin indicated that, upon reviewing appellant’s medical records, work history, and
audiometric records, there was “no evidence of ‘occurrence of event’ to establish fact of injury
and there was no causal relationship for his claim of work-related hearing loss due to federal
employment.” She explained that appellant had not been a federal employee since January 30,
1989 and had absolutely no exposure to any levels of noise as a federal employee for 24 years.
3

Docket No. 14-1616 (issued November 20, 2014).

4

From March 12, 1979 to June 12, 1981, appellant worked at the Hartsville nuclear plant. From December 30,
1981 to March 19, 1982; April 2 to June 8, 1984; April 24 to May 23, 1986; and October 21 to November 23, 1987
he worked at the Widows Creek plant. From August 4 to December 17, 1982; July 15 to 31, 1983; January 4 to
April 3, 1984; April 12 to 30, 1985; and August 30, 1985 to January 24, 1986 appellant worked at the Sequoyah
plant. From 1979 to October 2007, he worked out of the Boilermakers Union. From 2007 to November 2010,
appellant worked at various power plants.

2

Dr. Mauldin referenced an article from The American College of Occupational and
Environmental Medicine and explained that hearing loss from occupational noise exposure
occurred at the time of exposure, so there was no delayed effect or latency period. She also
related that Dr. Logan did not make any connection between appellant’s hearing loss and his
federal employment 24 years ago. Dr. Mauldin indicated that appellant’s first hearing
examination dated 1978 revealed mild loss of 6,000 Hz at his left ear and normal hearing at his
right ear. She reported that there were no significant changes on other examinations during any
of appellant’s intermittent employment.
Audiogram results dated February 16, 1978 to September 26, 1987 were submitted.
Audiometric testing dated February 16, 1978 revealed the following decibel (dB) losses at 500,
1,000, 2,000, and 3,000 Hz: 15, 10, 5, and 5 for the right ear and 15, 5, 10, and 5 for the left ear.
Audiometric testing dated September 27, 1987, showed dB losses at 500, 1,000, 2,000, and 3,000
Hz of 10, 5, 5, and 15 for the right ear and 5, 5, 5, and 5 for the left ear.
OWCP referred appellant, together with a statement of accepted facts (SOAF) and the
medical record, to Dr. Jack W. Aland, a Board-certified otolaryngologist, for a second opinion
examination and an audiological evaluation to determine the extent of any noise-induced hearing
loss related to his federal employment. In an August 26, 2013 report, Dr. Aland reviewed the
SOAF, noted that appellant worked around “noise for years,” but the work “was not all during
[appellant’s] federal civilian employment” and also noted that previous audiograms were not
available for review. He provided examination findings and diagnosed neurosensory hearing
loss. Dr. Aland checked a box indicating that appellant’s hearing loss was “not due” to his
federal employment. He explained that because hearing loss was only in the right ear, he
“doubt[ed]” that it resulted from workplace exposure. An audiogram performed that day with
testing at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed dB losses of the right
ear as 15, 20, 30, and 50 respectively. Testing at the same frequency levels revealed dB losses of
20, 15, 30, and 30 of the left ear.
In a decision dated September 20, 2013, OWCP denied appellant’s claim. It accepted
that he was exposed to noise during his federal employment and a diagnosis of right
sensorineural hearing loss, but denied his claim because the medical evidence of record failed to
establish that his hearing loss was causally related to the accepted work-related noise exposure.
On October 21, 2013 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative. The hearing was held on March 14, 2014. Appellant described
his work as a boilermaker and his exposure to loud noise during his federal employment. He
asserted that although the second opinion examiner opined that his hearing loss was not due to
his federal employment, he did not adequately explain how or why his federal employment noise
exposure was not a contributing factor of his hearing loss. Counsel alleged that OWCP could not
rely on Dr. Almand’s report, and instead, that OWCP should base its decision on Dr. Logan’s
March 19, 2013 report.
By decision dated May 21, 2014, an OWCP hearing representative affirmed
September 20, 2013 decision denying appellant’s hearing loss claim. She found that there
no rationalized medical evidence in the record to establish that his hearing loss condition
causally related to his federal employment. The hearing representative determined

3

the
was
was
that

Dr. Aland’s August 26, 2013 second-opinion report constituted the weight of the medical
evidence and established that appellant did not sustain any work-related hearing loss.
Appellant appealed to the Board on July 14, 2014. In a decision dated November 20,
2014, the Board set aside the May 21, 2014 OWCP decision. The Board found that Dr. Aland’s
August 26, 2013 report was not sufficiently rationalized to carry the weight of the medical
evidence because he did not provide a complete and accurate history, nor a rationalized
explanation of why appellant’s diagnosed noise hearing loss was found to be nonwork related.
The Board remanded the case for OWCP to prepare an amended SOAF and provide the entire
case record, including the employing establishment’s audiograms, to Dr. Aland to obtain a
supplemental report regarding whether appellant’s hearing loss was causally related to factors of
his employment.
On remand OWCP prepared a new SOAF dated January 7, 2015, which included
appellant’s exposure to noise at the employing establishment and the length and period of such
exposures. It referred the new SOAF and the entire case record to Dr. Aland for a supplemental
report.
In a January 24, 2015 supplemental report, Dr. Aland opined that appellant’s hearing loss
from the 2013 visit was not causally connected to his federal civilian employment. He
explained: “I do not feel the exposure to noise during his federal employment contributed in any
way to his hearing loss.” Dr. Aland noted that he came to these conclusions because, during the
course of appellant’s employment from 1978 to 1987, there was no progressive hearing loss at
that time and it had been almost 20 years since the last hearing test in 1987, when he worked
there.
In a de novo decision dated February 20, 2015, OWCP denied appellant’s hearing loss
claim because the medical evidence of record was insufficient to establish that his hearing loss
was causally related to noise exposure during his federal employment. It found that the weight
of medical opinion evidence rested with Dr. Aland.
On March 18, 2015 appellant requested another telephone hearing before an OWCP
hearing representative. This hearing was held on October 7, 2015. Counsel alleged that OWCP
should not have relied on Dr. Aland’s January 24, 2015 report because it was not well
rationalized and failed to adequately explain how or why appellant’s hearing loss was not a result
of his noise exposure in his federal employment. He further asserted that Dr. Logan provided a
well-rationalized medical opinion that appellant’s hearing loss was a result of noise exposure
during his federal employment.
Counsel provided an October 5, 2015 report by Dr. Logan who noted that he reviewed his
March 19, 2013 report along with an audiogram, appellant’s CA-35b form, the transcript of the
hearing date March 14, 2014, Dr. Aland’s January 24, 2015 supplemental report, and documents
regarding appellant’s noise exposure over the years. Dr. Logan opined that the hearing loss that
appellant had, when examined on March 19, 2013, was consistent with noise-induced hearing
loss. He reported: “I feel that it is likely that to a reasonable degree of medical certainty, that
[appellant’s] occupational noise exposure with [the employing establishment] did contribute to
the sensorineural hearing loss I found on my examination.”

4

In a decision dated November 13, 2015, an OWCP hearing representative set aside the
February 20, 2015 decision and remanded the case for further development. She found that
Dr. Aland did not adequately explain why he found that appellant’s hearing loss was not causally
related to his federal noise exposure. The hearing representative determined that OWCP should
refer appellant for a new audiological evaluation and second opinion examination by an
otolaryngologist.
The employing establishment submitted a November 20, 2015 letter relating that it
disagreed with OWCP’s November 13, 2015 decision. It asserted that there was no evidence that
appellant incurred any sort of hearing loss during his employment. The employing establishment
noted that his audiograms reflected no standard threshold shift during his employment and
normal hearing. It contended that appellant did not meet his burden of proof to establish that he
had noise-related hearing loss due to his federal employment.
OWCP prepared an amended SOAF dated November 23, 2015 and referred appellant to
Dr. Howard M. Goldberg, a Board-certified otolaryngologist, for another second opinion
evaluation.
Dr. Goldberg completed an outline for otologic evaluation (Form CA-1332) dated
December 15, 2015. He responded that there was no significant variation from the SOAF.
Dr. Goldberg wrote “normal” when asked to comment on appellant’s hearing at the beginning of
his significant noise exposure in federal employment. He also responded “no” indicating that
appellant did not show a sensorineural hearing loss in excess of what would be normally
predicted on the basis of presbycusus and that the workplace exposure was not of sufficient
intensity and duration to have caused the loss in question. Dr. Goldberg reported a normal
physical examination of the canals, drum motility, and basic fork tests and diagnosed mild
bilateral sensorineural hearing loss. He checked a box indicating that appellant’s hearing loss
was “not due” to noise exposure during his federal employment. Dr. Goldberg explained that
there were no significant changes in appellant’s hearing or audiograms from 1978 to 1987 and
that they were all within normal range. He further reported that according to the present
audiogram, appellant’s hearing was normal for conversation range. An audiogram performed
that day with testing at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed dB
losses for the right ear as 15, 25, 30, and 55 respectively. Testing at the same frequency levels
revealed dB losses of 15, 15, 15, and 40 for the left ear.
In a January 5, 2016 decision, OWCP again denied appellant’s hearing loss claim. It
found that the medical evidence of record was insufficient to establish that he sustained mild
bilateral sensorineural hearing loss as a result of noise exposure during his federal employment.
OWCP found that the weight of medical evidence rested with Dr. Goldberg who concluded in a
December 15, 2015 Form CA-1332 that appellant’s mild bilateral sensorineural hearing loss was
not due to noise exposure during his federal employment.
On January 20, 2016 appellant requested an oral hearing before an OWCP hearing
representative, which was held on September 16, 2016. Counsel related that Dr. Logan
examined appellant on March 19, 2013 and determined that he had sensorineural hearing loss.
He asserted that when applying Dr. Logan’s audiogram findings to the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,

5

Guides), appellant had 13.1 percent permanent impairment for monaural hearing loss of the right
ear and 2.2 percent impairment for binaural hearing loss. Counsel contended that Dr. Goldberg
relied on old audiograms for his opinion that appellant’s hearing loss was not causally related to
noise exposure during his federal employment. He noted that appellant had 15 months of noise
exposure with the employing establishment after the September 16, 1987 audiogram. Counsel
also reported that, when applying Dr. Goldberg’s audiogram results to the A.M.A., Guides,
appellant had 9.4 percent permanent impairment for right ear monaural hearing loss and 1.6
percent permanent impairment for binaural hearing loss. He contended that this should be
considered a significant change in hearing on audiograms. Counsel also asserted that the law had
established that, if any part of appellant’s hearing loss was contributed to by his federal
employment, he was entitled to payment of compensation. He further alleged that there was a
conflict in medical opinion between Dr. Logan and Dr. Goldberg, which required referral to a
referee physician.
By decision dated November 28, 2016, an OWCP hearing representative affirmed the
January 5, 2016 decision. She found that the medical evidence of record was insufficient to
establish that appellant’s hearing loss was causally related to factors of his federal employment.
The hearing representative determined that the weight of medical opinion evidence rested with
Dr. Goldberg.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence6 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.7 In an occupational disease claim, appellant’s burden of proof
requires submission of the following: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
5

Supra note 2.

6

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

7

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
8

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

9

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

6

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.10
ANALYSIS
Appellant has alleged that he developed hearing loss due to noise exposure during his
federal employment. OWCP accepted that he was exposed to hazardous noise at the employing
establishment and was diagnosed with right ear hearing loss, but it denied his claim because the
medical evidence of record was insufficient to establish that his hearing loss was causally related
to the accepted factors of his federal employment.
Dr. Aland explained in his January 24, 2015 supplemental opinion that appellant’s federal
employment between 1978 and 1987 did not cause hearing loss because appellant’s audiograms
during that time period did not show any progressive hearing loss. An OWCP hearing
representative found that Dr. Aland’s report was not sufficiently rationalized and, therefore,
obtained another second opinion from Dr. Goldberg.
Dr. Goldberg completed a Form CA-1332 dated December 15, 2015 and provided
audiometric testing. He indicated that appellant did not show sensorineural hearing loss in
excess of what would be normally predicted on the basis of presbycusus and that the workplace
exposure was not of sufficient intensity and duration to have caused the loss in question.
Dr. Goldberg reported a normal physical examination of the canals, drum motility, and basic fork
tests and diagnosed mild bilateral sensorineural hearing loss. He related that appellant’s hearing
loss was “not due” to noise exposure during his federal employment. Dr. Goldberg explained
that there were no significant changes in appellant’s hearing or audiograms from 1978 to 1987
and that they were all within normal range.
The Board finds that Dr. Goldberg’s opinion was based on a review of the evidence and
supported by medical rationale explaining that appellant’s hearing loss was not a result of noise
exposure during his federal employment. Dr. Goldberg referenced current and previous
audiometric test results and related that appellant’s audiograms from his employment 1978 to
1987 were all within the normal range.11 He, therefore, agreed with Dr. Aland’s analysis and
added that appellant’s hearing loss was explained by presbycusus. Dr. Goldberg provided
examination findings and a reasoned opinion explaining how appellant’s hearing loss was not
due to the noise exposure in his federal employment.12 His December 15, 2015 report, therefore,
was sufficient to establish that appellant did not sustain right-sided hearing loss causally related
to factors of his federal employment.
In support of his claim for hearing loss, appellant submitted reports dated March 19, 2013
and October 5, 2015 wherein Dr. Logan related that appellant worked around loud noise for a
number of years as a boilermaker. Dr. Logan reviewed appellant’s history and provided physical
10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

See A.C., Docket No. 16-0762 (issued June 22, 2016).

12

See M.I., Docket No. 16-0759 (issued June 10, 2016).

7

examination findings. He diagnosed sensorineural hearing loss. In an October 5, 2015 report,
Dr. Logan opined that appellant’s occupational noise exposure with the employing establishment
contributed to his sensorineural hearing loss. Although he provided an affirmative opinion on
causal relationship, the Board finds that he did not provide any medical rationale to support his
conclusion that appellant’s hearing loss was causally related to noise exposure during his federal
employment. Dr. Logan did not explain why appellant’s audiograms from 1978 to 1987, the
period during which he was a federal employee, did not show any progression of hearing loss, if
in fact his employment during this time period caused any hearing loss. A medical report is of
limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale.13 Dr. Logan’s brief statement on
the issue of causal relationship lacks adequate medical rationale to support that appellant’s
hearing loss was caused or contributed to by his employment.
On appeal, counsel alleges that OWCP’s finding that appellant did not have hearing loss
causally related to his federal employment was not supported by the evidence of record. He
further asserts that, in the alternative, there was a conflict of medical opinion between Dr. Logan
and Dr. Goldberg, and the claim should be referred to a referee examiner in order to resolve the
conflict. As found above, however, Dr. Logan’s medical opinion is of limited probative value to
establish employment-related hearing loss as his opinion on causal relationship lacked medical
rationale.14 Because his medical opinion is of limited probative value, it is insufficient to create
a conflict in medical opinion evidence.15
The Board finds that the medical evidence of record does not establish that appellant
sustained right-sided hearing loss causally related to his employment. OWCP, therefore,
properly found that he did not meet his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.606 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish hearing loss
causally related to factors of his federal employment.

13

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (February 6, 2009).

14

See W.G., Docket No. 13-1917 (issued February 12, 2014).

15

C.H., Docket No. 16-1806 (issued March 9, 2017).

8

ORDER
IT IS HEREBY ORDERED THAT the November 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 8, 2017
Washington, DC

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

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

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

9