United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AVIATION ADMINISTRATION,
Sacramento, CA, Employer
__________________________________________

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Appearances:
Shirley L. Jones, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1006
Issued: March 23, 2007

Case Submitted on the Record

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

JURISDICTION
On March 30, 2006 appellant, through her attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decision dated March 2, 2006 finding that she did not
establish a medical condition due to her employment injuries on November 14, 1999. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits; (2) whether the Office met its burden of proof to rescind the acceptance
of appellant’s claim; and (3) whether appellant met her burden of proof in establishing that she
developed additional employment-related conditions due to her November 14, 1999 employment
injury.
FACTUAL HISTORY
This is the third appeal to the Board in this case. Appellant, a 35-year-old air traffic
controller, filed a traumatic injury claim alleging that on November 14, 1999 she felt a jolt and

crackling in her right ear through her headset simultaneously with a lightning strike on the
employing establishment premises. The Office initially accepted her claim for effects of electric
current, vertigo, dizziness and giddiness on December 13, 1999. By decision dated February 2,
2000, the Office rescinded its acceptance of appellant’s claim. Appellant requested an oral
hearing and in a May 17, 2000 decision, the hearing representative vacated the February 2, 2000
decision finding that it instead constituted a proposed termination of compensation. By decision
dated September 5, 2000, the Office found that the evidence failed to establish that the claimed
traumatic injury of November 14, 1999 occurred at the time, place and in the manner alleged.
Appellant again requested an oral hearing. By decision dated June 12, 2001, the hearing
representative found that the Office had met its burden of proof to rescind acceptance of her
claim as the November 14, 1999 incident did not occur as alleged. Appellant requested
reconsideration of the June 12, 2001 decision and submitted new evidence. By decision dated
September 23, 2002, the Office declined to reopen appellant’s claim for reconsideration of the
merits.
In the first appeal filed on June 23, 2003, the Board found that on September 23, 2002 the
Office had improperly denied appellant’s request for further merit review and remanded the case
for proper consideration of the merits of her claim.1 Following the Board’s June 23, 2003
decision, the Office issued a December 8, 2003 decision finding that the factual and medical
evidence did not establish a work-related incident occurring on November 14, 1999. Appellant
appealed the December 8, 2003 Office decision to the Board. In a decision dated April 26,
2005,2 the Board found that the Office had not met its burden of proof to rescind the acceptance
of appellant’s claim. The Board concluded that the Office did not establish that the
November 14, 1999 incident did not occur as alleged.3 The Board reversed the December 8,
2003 decision of the Office finding that the factual and medical evidence did not establish a
work-related incident occurring on November 14, 1999. The Board also remanded the case to
the Office for a determination of the medical conditions related to the November 14, 1999
employment injuries. The facts and the circumstances of the case as set out in the Board’s prior
decisions are adopted herein by reference.
Appellant initially sought medical treatment on November 19, 1999 from Dr. Richard
Hindmarsh, a Board-certified family practitioner, who completed a Form CA-16 and diagnosed
vestibular nerve injury secondary to electrical current. He noted findings of vertigo with position
change which was reproducible with rapid head movements.
Dr. Rajiv S. Pathak, a Board-certified neurologist, examined appellant on
December 7, 1999. He stated that appellant’s symptoms were either the after effects of
lightening with headaches, dizziness and chest wall pain or a viral infection.

1

Docket No. 03-576 (issued June 23, 2003).

2

Docket No. 04-750 (issued April 26, 2005).

3

As the Office failed to meet its burden of proof to rescind the acceptance of appellant’s claim effective
February 2, 2000, appellant is entitled to be compensated for any benefits she repaid as a result of this rescission
decision.

2

Appellant underwent a head computerized tomography (CT) scan on December 1, 1999
which was negative.
David L. Stewart, Ph.D., a licensed psychologist, examined appellant on March 25, 2000
and diagnosed post-traumatic stress disorder, cognitive disorder with deficiencies in attention,
concentration and working memory. He noted that appellant was dizzy, sometimes nauseous and
had problems with visual focusing. Dr. Stewart further found that appellant had flashbacks to
the employment injury, intrusive thoughts, avoidance, mood and anxiety symptoms of posttraumatic stress disorder. He again examined appellant on June 9, 2000. Dr. Stewart listed
appellant’s physical findings as, “mental confusion, depression and anxiety, excessive irritability,
dizziness, headache, earache, nausea, loss of sleep, forgetfulness, weakness in the arms, legs and
shoulder, ankle swelling, chest pains, heart palpitations, racing heart, irregular heart rate poor
circulation, (cold hands, etc.,) and problems with hearing and seeing.” He also noted appellant’s
reports of tinnitus, difficulty with telephone conversations and difficulty understanding when
more than one conversation was ongoing. Dr. Stewart reported appellant’s complaints of visual
difficulties, impaired movements, difficulty sleeping, memory loss, confusion, poor
concentration and poor attention. He noted that appellant reported bad dreams regarding her
employment injury, intense fear of both thunderstorms and headphones. Dr. Stewart interpreted
appellant’s test results as demonstrating immediate memory problems and problems with
attention and concentration.
In a report dated June 12, 2000, Dr. Fredrick H. Fuerst, an optometrist, examined
appellant and stated that her evaluation revealed abnormal responses to several binocular motor
tests. He stated, “These skills are the sequential luminy [sic] skills and fine motor accuracy in
integrating the pursuit and saccadic eye movements in order to track objects effectively.”
Dr. Fuerst diagnosed fusion range dysfunction, vergence infacility [sic], oculomotor dysfunction
and saccadic dysfunction. He stated, “The visual condition that results from a head injury has
been termed the post-traumatic vision syndrome (PTVS).
Dr Hindmarsh diagnosed post-traumatic stress disorder and mild traumatic brain injury
on June 28, 2000.
Dr. Fuerst submitted additional reports dated December 17, 2000 and March 10, 2001
finding that appellant had vision dysfunctions. He diagnosed oculmotor dysfunction, eye
movement dysfunction, smooth pursuit deficiencies and binocular dysfunction. Dr. Fuerst stated
that appellant’s diagnoses seemed likely to be caused by the lightening strike as she would have
been unable to perform her duties as an air traffic controller with such deficiencies.
On December 21, 2000 Dr. Stewart submitted quantitative elector-encephalographs
which he found revealed that appellant’s brainwaves were not in the appropriate percentages and
revealed an injury to the right side. Beginning March 6, 2001, Dr. Stewart stated that appellant’s
post-traumatic stress disorder was improving.
Dr. Pathak examined appellant on February 15, 2001 and recommended a magnetic
resonance imaging (MRI) scan. He stated that appellant’s condition was not viral. On
March 27, 2001 Dr. Pathak noted that appellant reported blackout spells and that her
electroencephalography (EEG) demonstrated abnormal slowing, sharp waves and spikes which

3

occurred independently over the anterior and middle temporal regions on each side. He stated,
“Some of these wave forms are epileptiform in character. This constellation of findings is
consistent with independent bitemporal abnormality which may be epileptogenic.”
Dr. Robert Burgerman, a neurologist, examined appellant on August 14, 2001 and noted
her history of injury. Appellant had a seizure in his waiting room and underwent an EEG on that
date. Dr. Burgerman reported that appellant described three kinds of events, mini blackouts, her
mind shutting down and big seizures. He diagnosed nonepileptic seizures, possibly psychogenic
seizures or possible frontal lobe complex partial seizures.
Dr. Stewart diagnosed seizures on October 1, 2001 as well as adjustment disorder with
depressed mood and recommended seizure medication.
Appellant underwent an MRI scan of the brain on October 4, 2001 which did not
demonstrate a structural brain lesion. She underwent a video EEG on October 29, 2001.
Appellant reported seizures which did not register on the EEG. Her clinical appearance was
found to be atypical for epileptic seizures.
In reports dated January 2, 2002 and June 6, 2002, Dr. Mary Ann Cooper, a physician of
professorial rank Board-certified in emergency medicine, stated that she specialized in lightening
strikes. She did not examine appellant, but reviewed her medical records. Dr. Cooper opined:
“[Appellant’s] records also unfortunately document injuries and complaint
consistent with lightening injuries including headaches, vertigo, pain, possible
autonomic nervous system injury, neurocognitive, motor and attentional deficits
consistent with brain injury from lightening, bitemporal EEG abnormalities, eye
movement abnormalities processing deficits consistent with traumatic cause,
hearing deficits and post-traumatic stress disorder.”
She noted that EEG’s measured primarily brain surface activity and that these tests miss
50 percent of frontal lobe seizures and 100 percent of hypothalamic seizures.
Dr. Joseph F. Drazkowski, a Board-certified neurologist, reviewed appellant’s May 2,
2003 MRI scan on October 7, 2003 and stated that appellant had an underlying dysfunction in
the right anterior temporal lobe.
Following the Board’s April 26, 2005 decision, the Office referred appellant and a
statement of accepted facts for a second opinion evaluation with Dr. Michael Bronshvag, a
Board-certified neurologist.
In a report dated October 6, 2005, Dr. Bronshvag stated that appellant continued to work
a few weeks following the November 14, 1999 employment injury.4 He also questioned whether
the lightening strike occurred and requested additional factual information. Dr. Bronshvag stated
that there was no evidence of epilepsy or epileptic seizures, but that appellant had slight
difficulty on mental status testing which was “perhaps” compatible with post-traumatic stress
4

This statement is not supported by the record.

4

disorder. He recommended additional psychiatric and neuropsychological testing as well as an
MRI scan and audiological evaluation.
Appellant underwent a brain MRI scan on October 24, 2005 which was read as
unremarkable. She also underwent an MRI scan of the auditory canals on that date which was
also unremarkable.
In a report dated November 3, 2005, Dr. Michael J. Kearns, a Board-certified
otolaryngologist, diagnosed subjective hearing loss, normal audiometrics, and intermittent
subjective right ear tinnitus and intermittent vertigo. He noted appellant’s history of a lightening
strike and concluded that her hearing was normal. Dr. Kearns stated that, based on appellant’s
history of injury, he would expect more hearing loss. He stated that he could not envision a
situation in which an injury would cause vertigo, but not hearing loss. Dr. Kearns found no
evidence of cochleovertibular injury due to the November 14, 1999 employment injury.
On December 5, 2005 Kathleen M. Ayers, Ph.D., a licensed psychologist, examined
appellant and reviewed the medical records. She noted that appellant’s evaluation of effort was
consistent with a person performing to the best of her abilities and that appellant’s scores were
similar to those of individuals with traumatic brain injury. On adult intelligence testing,
appellant had a large discrepancy between her performance and verbal intelligence quotient,
found in approximately three percent of the population. Dr. Ayers stated that appellant’s lowest
scores suggested left hemisphere temporal lobe injury. She diagnosed cognitive disorder due to
work-related lightening injury and major depression disorder.
Dr. Bronshvag completed a report on November 7, 2005 and stated that appellant’s MRI
scans were normal. He concluded that appellant did not have a seizure disorder or brain damage.
On December 12, 2005 Dr. Bradley A. Daigle, a Board-certified psychiatrist, examined
appellant and related her history of injury. He diagnosed cognitive disorder, depressive disorder
and history of post-traumatic stress disorder, in remission. Dr. Daigle stated that appellant’s
primary problem was neuropsychological residuals in the form of the cognitive disorder and
depressive disorder. He found that appellant did not require treatment, but was no longer
capable of working as an air traffic controller.
The Office requested a supplemental report from Dr. Daigle on January 17, 2006
explaining how appellant’s diagnosed cognitive disorder was related to her accepted employment
injury of November 14, 1999. Dr. Daigle responded on January 26, 2006 and stated that
appellant’s cognitive disorder directly resulted from her November 14, 1999 work incident. He
again mentioned that appellant did not require further treatment for her post-traumatic stress
disorder which he found to be in remission or for her diagnosed depressive disorder.
The Office requested an additional report from Dr. Daigle on February 9, 2006
explaining the relationship between appellant’s diagnosed cognitive disorder and her accepted
employment injury. In a report dated February 9, 2006, Dr. Daigle stated that he had relied on
the reports of Dr. Ayers in reaching his conclusion that this condition was related to appellant’s
employment incident.

5

By decision dated March 2, 2006, the Office denied appellant’s claim finding that her
diagnosed medical condition was not causally related to her November 14, 1999 employment
injury. The Office also noted that the claimed event of November 14, 1999 “occurred as
alleged,” but that there was no medical diagnoses connected to the event.
LEGAL PRECEDENT -- ISSUES 1 and 2
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.5 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.6 The
Office’s burden of proof in the termination of compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7 The
right to medical benefits for an accepted condition is not limited to the period of entitlement of
disability. To terminate authorization for medical treatment, the Office must establish that a
claimant no longer has residuals of an employment-related condition, which require further
medical treatment.8
The Board has upheld the Office’s authority to reopen a claim at any time on its own
motion under 5 U.S.C. § 81289 and where supported by the evidence, set aside or modify a prior
decision and issue a new decision.10 The Board has noted, however, that the power to annul an
award is not an arbitrary one and that an award for compensation can only be set aside in the
manner provided by the compensation statute.11 It is well established that, once the Office has
accepted a claim, it has the burden of justifying termination or modification of compensation
benefits.12 This holds true where the Office later decides that it has erroneously accepted a claim
for compensation. In establishing that its prior acceptance was erroneous, the Office is required
to provide a clear explanation of its rationale for rescission.13
ANALYSIS -- ISSUES 1 and 2
The Office accepted that appellant sustained effects of electric current, dizziness and
giddiness and vertigo on November 14, 1999 and authorized wage-loss benefits due to this
condition. The Office initially rescinded the acceptance of this claim on September 5, 2000,
5

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

6

Mary A. Lowe, 52 ECAB 223, 224 (2001).

7

Gewin C. Hawkins, 52 ECAB 242, 243 (2001).

8

Mary A. Lowe, supra note 6.

9

5 U.S.C. § 8128.

10

Shelly D. Duncan, 54 ECAB 367, 370 (2003).

11

Andrew Wolfgang-Masters, 56 ECAB ___ (Docket No. 05-1, issued March 22, 2005).

12

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

13

Andrew Wolfgang-Masters, supra note 11.

6

declining to modify this decision on June 12, 2001 and December 8, 2003. The Board found that
the Office had improperly rescinded acceptance of appellant’s claim and reversed the
December 8, 2003 decision on April 26, 2005. As the Board reversed the Office’s rescission of
appellant’s claim, her claim reverts to the status it occupied prior to rescission which includes
acceptance of the employment injuries sustained on November 14, 1999, consisting of effects of
electric current, dizziness, giddiness and vertigo and payment of medical benefits and periods of
disability due to these conditions until the date of the improper rescission of appellant’s claim.
Therefore, the Office retains the burden of proof to establish that appellant no longer has
disability or residuals of her accepted conditions.
In the March 2, 2006 decision, the Office denied appellant’s claim finding that her
diagnosed medical conditions were not causally related to her November 14, 1999 employment
injury. The Office further stated that there were no medical diagnoses related to the
November 14, 1999 employment injury. The Office’s decision does not clearly delineate the
separate burdens of proof involved in appellant’s case and appears to be either an attempt to
rescind the acceptance of appellant’s claim or an attempt to terminate her continuing
compensation benefits. While appellant retains the burden of proof in establishing any additional
medical conditions beyond those previously accepted by the Office, based on the Board’s
April 26, 2005 decision, the Office retains the burden of proof to terminate compensation
benefits or rescind the acceptance of appellant’s claim in regard to appellant’s accepted
conditions of effects of electric current, vertigo, dizziness and giddiness.
The record contains evidence regarding appellant’s initially accepted condition of
vertigo. Appellant’s attending physician, Dr. Hindmarsh, a Board-certified family practitioner,
diagnosed vestibular nerve injury secondary to electrical current on November 19, 1999. He
noted findings of vertigo with position change. The Office accepted appellant’s claim for effects
of electric current, dizziness, giddiness and vertigo based on this report.
Following the Board’s remand decision dated April 26, 2005, the Office referred
appellant for a second opinion evaluation with Dr. Kearns, a Board-certified otolaryngologist,
who stated that, on November 3, 2005, based on appellant’s history of injury, he would expect
more hearing loss. He stated that he could not envision a situation in which an injury would
cause vertigo, but not hearing loss. Dr. Kearns found no evidence of cochleovertibular injury
due to the November 14, 1999 employment injury. His report is not sufficiently detailed and
rationalized to establish that appellant did not sustain vertigo as a result of her employment
injury. Furthermore, Dr. Kearns’ report does not clearly establish that appellant no longer has
symptoms of vertigo related to her accepted employment injury. While he opined that appellant
could not sustain an injury causing vertigo which did not also result in hearing loss, he did not
explain why he believed this to be the case. Without medical reasoning supporting and
explaining his position, Dr. Kearns’ report dated almost six years after the injury is not sufficient
to establish that appellant did not sustain vertigo as a result of her employment injury and is not
sufficiently detailed and rationalized to establish that appellant has no continuing employmentrelated condition as a result of her employment injury.
The Board finds that Dr. Kearns’ report does not meet the Office’s burden of proof to
rescind the acceptance of appellant’s claim for vertigo, dizziness, giddiness and effects of
electrical shock as the result of the November 14, 1999 employment injury. As this report does

7

not contain sufficient detailed and rationalized medical opinion evidence to establish that the
employment injury did not result in the diagnosed condition of vertigo, it is not sufficient to
provide a clear basis for the Office’s attempted rescission of appellant’s claim. The Board
further finds that Dr. Kearns’ report does not meet the Office’s burden of proof in establishing
that the accepted conditions of vertigo, dizziness, giddiness and effects of electric shock have
ceased such that termination of compensation benefits are appropriate. Dr. Kearns’ report did
not accept that the injury occurred and cannot therefore establish that the effects of the injury
have ceased.14
LEGAL PRECEDENT -- ISSUE 3
An employee seeking benefits under the Federal Employees’ Compensation Act15 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.16
A traumatic injury is defined as a condition of the body caused by a specific event or
incident or series of events or incidents within a single workday or shift. Such condition must be
caused by external force, including stress or strain, which is identifiable as to time and place of
occurrence and member or function of the body affected.17 An occupational disease or illness,
on the other hand, means a condition produced by the work environment over a period longer
than a single workday or shift.18
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is alleged to have occurred. The second
component is whether the employment incident caused a personal injury and generally this can
be established only by medical evidence.19

14

It is a well-established principle that the Office must make proper findings of face and a statement of reasons in
its final decisions. Tonja R. Hiebert, 55 ECAB 706, 710 (2004); see also 20 C.F.R. § 10.126.
15

5 U.S.C. §§ 8101-8193.

16

Elaine Pendleton, 40 ECAB 1143 (1989).

17

20 C.F.R. § 10.5(ee).

18

20 C.F.R. § 10.5(q).

19

Id.

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The medical evidence generally required to establish causal relationship is rationalized
medical opinion evidence.20 The physician must provide an opinion on whether the employment
incident described caused or contributed to the claimant’s diagnosed medical condition and
support that opinion with medical reasoning to demonstrate that the conclusion reached is sound,
logical and rational.21 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the established incident or factor of employment.22
The Act provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.23 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician of an Office medical adviser or consultant, the Office shall
appoint a third physician to make an examination. This is called a referee examination and the
Office will select a physician who is qualified in the appropriate specialty and who has had no
prior connection with the case.24
ANALYSIS -- ISSUE 3
In regard to the additional medical conditions not previously accepted by the Office
which appellant feels are due to her accepted employment injury, appellant retains the burden of
proof to establish the causal relationship between these conditions and her employment. Prior to
the Board’s April 26, 2005 decision, appellant had submitted evidence regarding her diagnosed
conditions of post-traumatic stress disorder and cognitive disorder. Dr. Stewart, a licensed
psychologist, examined appellant on March 25, 2000 and diagnosed post-traumatic stress
disorder and cognitive disorder. He noted that appellant had difficulty sleeping, memory loss,
confusion, flashbacks to the employment incident, intrusive thoughts, avoidance and mood and
anxiety symptoms of post-traumatic stress disorder. Dr. Hindmarsh concurred with this
diagnosis on June 28, 2000.
Following the Board’s April 26, 2005 decision, the Office referred appellant for a second
opinion evaluation with Dr. Bronshvag, a Board-certified neurologist, who examined appellant
on October 6, 2005 and found that appellant had slight difficulty on mental status testing which
was compatible with post-traumatic stress disorder. The Office then referred appellant to
Dr. Ayers, a licensed psychologist, who diagnosed cognitive disorder due to the accepted
employment incident. Dr. Daigle, a Board-certified psychiatrist, examined appellant on
December 12, 2005 and diagnosed cognitive disorder and history of post-traumatic stress
20

John W. Montoya, 54 ECAB 306, 308 (2003).

21

Id.

22

Louis T. Blair, 54 ECAB 348, 350 (2003).

23

5 U.S.C. §§ 8101-8193, 8123.

24

20 C.F.R. § 10.321.

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disorder in remission. He stated in a supplemental report dated January 26, 2006 that appellant’s
cognitive disorder was a direct result of appellant’s employment incident. In his final
supplemental report dated February 9, 2006 Dr. Daigle stated that he based his conclusions on
Dr. Ayers’ report.
All the reports in the record contain a diagnosis and an opinion that appellant’s posttraumatic stress disorder and cognitive disorder were caused by the accepted employment injury.
While the reports are not sufficient to meet appellant’s burden of proof of establishing a period
of disability, the reports do raise an uncontroverted inference of causal relation between
appellant’s accepted employment injury and her emotional condition cognitive disorder and are
sufficient to require the Office to undertake further development of appellant’s claim.25 The
Office needs to secure a report whether appellant developed post-traumatic stress disorder as a
result of her employment injury and any period of disability due to post-traumatic stress.
The Office should also further develop the medical evidence regarding whether
appellant’s diagnosed cognitive disorder is due to her accepted employment injury. Dr. Daigle
was unwilling or unable to provide the necessary medical reasoning in support of his opinion that
this condition was due to appellant’s employment. Proceedings under the Act are not adversarial
in nature nor is the Office a disinterested arbiter. The Office shares responsibility in the
development of the evidence to see that justice is done.26 As the Office undertook development
of the evidence by referring appellant for second opinion evaluations regarding her psychological
and cognitive conditions, it must develop this evidence to its logical conclusion.
Appellant also submitted evidence that she sustained brain damage as a result of the
accepted employment injury. Dr. Stewart submitted EEG’s dated December 21, 2000 which he
found were indicative of right side brain injury. Dr. Hindmarsh diagnosed mild traumatic brain
injury on January 28, 2000. Dr. Drazkowski, a Board-certified neurologist, reviewed appellant’s
May 2, 2003 MRI scan on October 7, 2003 and found that appellant had an underlying
dysfunction in the right anterior temporal lobe. Dr. Bronshvag, the Office second opinion
physician, completed a report on November 7, 2005 and stated that appellant’s MRI scans were
normal and concluded that appellant did not have brain damage. The Board finds that there is an
unresolved conflict of medical opinion evidence regarding the results of appellant’s MRI scan.
Dr. Drazkowski, appellant’s physician, and Dr. Bronshvag, the Office second opinion physician,
both examined objective test results and reached opposite conclusions regarding the findings.
On remand the Office should refer appellant, her test results and a statement of accepted facts to
an appropriate Board-certified physician to determine if appellant has any brain damage as a
result of her accepted employment injury.
CONCLUSION
The Board finds that the Office has not met its burden of proof to terminate compensation
benefits or to rescind the acceptance of her claim for vertigo, giddiness, dizziness and effects of
electrical shock. The Board further finds that the Office has not properly developed the medical
25

John J. Carlone, 41 ECAB 354, 358-60 (1989).

26

Jimmy A. Hammons, 51 ECAB 219, 223 (1999).

10

evidence to determine the medical conditions resulting from appellant’s accepted employment
injuries and any periods of disability associated with these conditions. On remand the Office
should follow the directives of the Board in regard to appellant’s diagnosed conditions of posttraumatic stress disorder, cognitive disorder and organic brain damage, which were not
previously accepted by the Office. After this and such other development as the Office deems
necessary, the Office should issue an appropriate decision regarding any continuing conditions
and disability resulting from appellant’s accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2006 decision of the Office of
Workers’ Compensation Programs is reversed in part in regard to its attempt to termination
compensation benefits or to rescind the acceptance of the claim. With regard to appellant’s
claim for additional employment conditions due to her November 14, 1999 employment injury,
the decision is set aside and remanded in part for further development consistent with this
opinion of the Board.
Issued: March 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
D.H., Appellant
and
DEPARTMENT OF LABOR, EMPLOYEE
BENEFITS SECURITY ADMINISTRATION,
Atlanta, GA, Employer
________________________________________

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

Docket Nos. 20-0041 & 20-0261
Issued: February 5, 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 October 4, 2019 appellant filed a timely appeal from a July 26, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP) and the Clerk of the Appellate Boards
assigned Docket No. 20-0041. On October 16, 2019 she filed a timely appeal from a
September 30, 2019 merit decision of OWCP and the Clerk of the Appellate Boards assigned
Docket No. 20-0261. 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 30, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issue are: (1) whether appellant has met her burden of proof to establish that the
acceptance of her claim should be expanded to include an emotional condition causally related to
the accepted April 9, 2013 employment injury; and (2) whether appellant has met her burden of
proof to establish a recurrence of total disability commencing March 6, 2014 causally related to
her accepted April 9, 2013 employment injury and an expansion of the accepted work-related
conditions in her shoulders and neck.
FACTUAL HISTORY
On April 10, 2013 appellant, then a 44-year-old pension investigator, filed a traumatic
injury claim (Form CA-1) alleging that on April 9, 2013 she developed soreness on her right side
after she was involved in a motor vehicle accident while in the performance of duty. On the reverse
side of the claim form, appellant’s supervisor acknowledged that she was injured while in the
performance of duty and that she stopped work at 12:00 a.m. on April 10, 2013.
OWCP subsequently received a statement from a supervisory investigator who recounted
that while appellant was operating a government vehicle, a tire blew out on “18-wheeler” in front
of her, causing her to hit some large truck tire debris. The supervisory investigator further noted
that appellant nearly lost control of her vehicle and hit the median wall.
On May 14, 2013 OWCP accepted the claim for neck sprain and bilateral shoulder sprain.
In a May 16, 2013 report, Dr. Rashante Harris, a family medicine specialist, noted
appellant’s history of injury and diagnosed muscle spasms and strains. She noted that appellant
had not been able to work since the date of her injury; however, she was capable of returning to
work on May 13, 2013 without limitations. Appellant returned to full-time, regular-duty work on
May 17, 2013.
In reports dated February 17 and 24, 2014, Dr. Aly Ahmed, a psychiatrist, indicated that
appellant had been receiving treatment since June 2013 for severe depression, post-traumatic stress
disorder (PTSD), and severe anxiety with panic attacks.3 He opined that the onset of her symptoms
began during a traumatic accident which had left appellant with bilateral shoulder, neck, and upper
back pain. Dr. Ahmed noted that appellant had suffered from chronic pain daily and that due to
the severity of her symptoms he opined that her cognitive and psychological level of functioning
had declined.4 He indicated that due to her work-related conditions that she was unable to work.
In a March 5, 2014 narrative statement, appellant indicated that she was undergoing
treatment for severe depression, PTSD, and severe anxiety with panic attacks. She requested that
the acceptance of her claim be expanded to include these additional conditions.

3

Dr. Ahmed indicated that appellant also received counseling from Dorothy Watts, a licensed clinical social
worker, and he cosigned her reports.
4

Appellant submitted physical therapy notes in support of her claim.

2

On March 7, 2014 appellant filed a claim for compensation (Form CA-7) for disability
from work for the period March 6 to 7, 2014.
In a March 19, 2014 letter, OWCP advised appellant of the deficiencies of her wage-loss
claim. It noted that she had returned to full-time, regular-duty employment on May 17, 2013 and
if she was claiming a total disability from work from March 6 to 7, 2014, then she should have
filed a notice of recurrence (Form CA-2a). OWCP indicated that no further action would be taken
on her request for wage-loss compensation.
On March 21, 2014 appellant filed a Form CA-7 wage-loss compensation claim for
disability from work for the period March 10 to 21, 2014.
In a report dated March 6, 2014, Dr. Sharrona S. Williams, a Board-certified orthopedic
surgeon, diagnosed shoulder strain, neck sprain, rotator cuff syndrome, and cervical radiculopathy
due to an April 9, 2013 employment injury.
In a letter dated March 25, 2014, OWCP again advised appellant of the deficiencies of her
wage-loss compensation claims, noting that she had returned to full-time, regular duty on
May 17, 2013. It again advised that she should have filed a notice of recurrence (Form CA-2a)
and thus no further action would be taken on her requests for wage-loss compensation.
OWCP subsequently received progress reports dated February 17, 2014 and February 4,
2015 by Dr. Ahmed who diagnosed major depressive disorder and panic disorder. Dr. Ahmed
noted that the onset of her symptoms began during her traumatic accident which led to bilateral
shoulder, neck, back pain. He explained that she suffered from chronic, daily pain and due to the
severity of her symptoms her cognitive and psychological level of functioning declined such that
she was unable to complete any job functions and was thus totally disabled from work.
On April 26, 2014 appellant filed a notice of recurrence (Form CA-2a) claiming wage-loss
compensation for total disability commencing January 6, 2014, and indicating that she had stopped
work on March 6, 2014.5
In support of her claimed recurrence, appellant submitted a narrative status report dated
March 6, 2014, in which Dr. Williams advised that appellant was totally disabled from work as of
that date. In a visit status report dated March 27, 2014, Dr. Williams advised that appellant was
capable of returning to work with restrictions of no lifting over five pounds and no reaching or
working above shoulder level. Appellant also submitted a March 31, 2014 note, from Ms. Watts
who indicated that she was totally disabled from work for the period February 19 to July 19, 2014.
In an April 10, 2014 development letter, OWCP advised appellant of the deficiencies of
her recurrence claim. It requested additional factual and medical evidence and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to respond.

5
A time analysis form (Form CA-7a) dated March 31, 2014 indicated that appellant had not worked from March 6
to 27, 2014, per her physician’s orders.

3

In a statement dated April 22, 2014, appellant indicated that while working there was no
particular reason why her injury had worsened, but it did so without any intervening cause, and
she experienced constant chronic pain in both shoulders and her neck.
Thereafter, in support of her recurrence claim, appellant submitted a March 27, 2014 report
by Dr. Williams who diagnosed cervical degenerative disc disease with cervical strain with
bilateral upper extremity radiculopathy, left greater than right; cervical trigger points; bilateral
subacromial impingement with rotator cuff tendinitis; and bilateral acromioclavicular (AC) joint
arthritis.
Appellant also submitted a March 12, 2014 magnetic resonance imaging (MRI) scan of the
left shoulder which demonstrated a small, full-thickness nonretracted tear of the supraspinatus,
tendinosis of the infraspinatus, mild osteoarthritis/fibrosseous expansion of the AC joint, and small
subacromial enthesophyte/spur. A March 17, 2014 MRI scan of the cervical spine revealed an
essentially unremarkable cervical spine with no evidence of disc extrusion, stenosis, or facet
arthropathy.
By decision dated May 13, 2014, OWCP denied appellant’s claimed recurrence, finding
that the evidence of record was insufficient to establish a recurrence of disability, commencing
March 6, 2014, causally related to the accepted April 9, 2013 employment injury.
Appellant subsequently submitted a May 1, 2014 report from Dr. Williams who reiterated
her prior diagnoses and a February 4, 2015 report from Dr. Ahmed who indicated that appellant
was unable to complete any job functions due to her emotional conditions.
On May 12, 2015 appellant, through her then-counsel, requested reconsideration.
In support of the reconsideration request, appellant submitted a report dated August 21,
2014, in which Dr. Williams reiterated her diagnoses and the factual and medical history of
appellant’s accepted April 9, 2013 employment injury. Dr. Williams reported that appellant’s
neck sprain had improved and her cervical radiculopathy had resolved, but she did not have full
resolution of her subacromial impingement and rotator cuff tendinitis and recommended surgical
intervention for these conditions. She also opined that appellant was able to return to work in a
modified-duty position with restrictions on overhead activities, but once treatment was allowed,
she would be able to return to full duty without restrictions.
By decision dated August 3, 2015, OWCP denied modification of its May 13, 2014
recurrence decision.
On August 2, 2016 appellant requested reconsideration and submitted an August 7, 2014
report in which Dr. Williams reiterated the diagnoses contained in her prior reports.
On August 2, 2016 OWCP received a report dated August 20, 2014, in which Dr. Timothy
Ghattas, a Board-certified orthopedic surgeon, diagnosed full-thickness rotator cuff tear, arthritis
of AC joint, impingement syndrome of the shoulder region, and biceps tendinitis. Dr. Ghattas
indicated that appellant was seen for a surgical evaluation of her left shoulder following an injury
which had occurred in April 2013.

4

In an August 22, 2016 report, Dr. Mark W. Feeman, an osteopath Board-certified in
physiatry, diagnosed left shoulder full-thickness tear of the supraspinatus with tendinosis and some
osteoarthritis at the AC joint, subacromial bone spur (left rotator cuff tear), bilateral C5-6
radiculopathy (cervical radiculopathy), impingement syndrome of right shoulder, impingement
syndrome of the left shoulder, and carpal tunnel syndrome of the right and left upper limb. He
indicated that her chronic pain in the cervical spine and both shoulders were sudden in onset and
began more than three years prior.
In a work capacity evaluation (Form OWCP-5c) dated November 23, 2016 and a report
dated December 8, 2016, Dr. Walter Hill, a psychiatrist, diagnosed major depressive disorder and
panic disorder due to a chronic back and shoulder injury. He opined that appellant’s emotional
conditions arose out of and in the course of her employment which contributed to her injuries and
impairments. Dr. Hill identified severe depression symptoms and severe anxiety. Based upon the
medical record and history of injury he identified PTSD which had symptoms including
flashbacks, insomnia, panic attacks, hopelessness, and crying spells.
On January 3, 2017 appellant, through her then-counsel, requested reconsideration.
In a letter dated February 3, 2017, OWCP notified appellant that it had received a request
for expansion of her claim on March 5, 2014, however, that it was mis-indexed and as such
afforded appellant 30 days to submit evidence in furtherance of her expansion claim. It indicated
that it was her burden to submit evidence sufficient to establish any additional conditions. OWCP
requested additional evidence in support of appellant’s claim, including a medical report with a
physician’s rationalized medical opinion fully explaining how any current diagnosis of an
emotional condition was causally related to the accepted employment injury. It afforded her 30
days to submit additional evidence.
Appellant subsequently submitted a series notes dated October 22, 2013 through
November 30, 2015 from Ms. Watts regarding treatment for her emotional conditions.
Appellant also submitted a February 8, 2017 report from Dr. Hill who indicated that since
2013 appellant had reported severe anxiety, panic attacks, flashbacks, insomnia, and feeling
overwhelmed from environmental and psychosocial stressors. Dr. Hill reiterated that she had been
diagnosed with major depressive disorder, panic disorder, and PTSD and further indicated that she
suffered from significant symptoms, such as severe depressed mood, poor concentration, low
energy, crying spells, diminished appetite, flashbacks, night terrors, insomnia, panic attacks,
feelings of hopelessness, as well as chronic shoulder and back pain. He opined that due to
appellant’s symptoms, she had had significant deficits in her cognitive, emotional, and
psychological functioning. Dr. Hill explained that as a result of her emotional conditions she
experienced loss of energy, limited interest in activities of living, poor concentration, and isolation
from friends and family. He further explained that appellant’s emotional distress was causally
related to the conditions from her workplace injury which had caused her to experience chronic
pain daily and isolated her from her family and friends.
By decision dated May 10, 2017, OWCP denied expansion of appellant’s claim to include
an emotional condition as caused or aggravated by her accepted work-related conditions of neck

5

sprain and bilateral shoulder sprain. It found the record did not contain medical evidence to
support causal relationship between the accepted compensable factor and diagnosed conditions.
By decision dated May 11, 2017, OWCP denied modification of its August 3, 2015
decision which denied her claimed recurrence of disability.
In a narrative statement dated July 26, 2017, appellant indicated that she had returned to
work on May 17, 2013 and realized that her return might not have been the best decision for her
because she was not ready to physically handle the demands of her job. After returning to work,
she indicated that she had continued to experience significant pain in her shoulders and neck that
was not improving and was significantly impacting her ability to carry out her activities of daily
living, including performance of her job duties.
Appellant also submitted an addendum report dated January 16, 2018 from Dr. Feeman,
wherein he noted that the jerking motion she had to make with her arms to swerve, along with
breaking created enough force on the rotator cuff tendon when combined with a jerking motion to
cause it to tear completely. Dr. Feeman further indicated that the mechanics of the accident caused
the tendons in her shoulders to swell causing impingement syndrome and radiculopathy.
Therefore, it was his medical opinion that the resulting impact of appellant having to hit the brake,
swerve, and jerk the steering wheel while driving on the highway to avoid debris caused additional
cervical and bilateral shoulder conditions. Dr. Feeman was also noted his agreement with
Dr. Williams that appellant was totally disabled from work as of March 6 to 27, 2014 pending
results of her diagnostic studies and that she was unable to perform any overhead activities as of
March 27, 2014 and continuing due to her ongoing functional deficits from her work-related neck
and shoulder conditions.
On January 11, 2018 appellant requested reconsideration of the May 10, 2017 expansion
decision and reiterated the factual history of her claim in a narrative statement dated July 26, 2017.
She contended that her psychological symptoms from her employment injury had become so
severe and debilitating that she finally sought help for these issues in September 2013, and she was
forced to take time off from work using the Family and Medical Leave Act after that time.
In support of her reconsideration request, appellant submitted an October 10, 2017 report
by Dr. Hill who continued to diagnose major depressive disorder, panic disorder, and PTSD and
opined that appellant’s conditions started shortly following the employment injury on
April 9, 2013. Dr. Hill opined that her emotional conditions were caused as a direct result of the
employment injury, both from the trauma of the accident itself as well as the chronic pain she
developed from the injuries she suffered to her shoulders and neck during the accident. He noted
that PTSD was triggered by experiencing or witnessing a traumatic event that involved actual or
threatened death or serious injury, such as a motor vehicle accident. Dr. Hill opined that
appellant’s PTSD triggered depression and anxiety symptoms such as panic attacks and led to the
development of her major depressive disorder and panic disorder. He further opined that her
chronic pain limited her mood, her activities, and her lifestyle, which contributed to her
development of depression and exacerbated her PTSD and panic disorder. Dr. Hill concluded that
appellant was totally disabled for work due to her emotional conditions.

6

Appellant also submitted an October 10, 2017 report from Dr. Ahmed who reiterated his
diagnoses and opinions regarding her emotional conditions.
On March 23, 2018 appellant, through her then-counsel, requested reconsideration of the
May 11, 2018 decision regarding the denial of her recurrence claim. The request was resubmitted
on April 2, 2018.
By decision dated July 26, 2019, OWCP denied modification of its May 11, 2017 decision
regarding the denial of her recurrence claim.
By decision dated September 30, 2019, OWCP denied modification of its May 10, 2017
decision regarding the denial of appellant’s request to expand the acceptance of her claim to
include additional conditions.
LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6
The claimant bears the burden of proof to establish a claim for a consequential injury.7 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents, is sufficient to establish causal
relationship.10
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The basic rule is that,

6

V.S., Docket No. 19-1370 (issued November 30, 2020); M.M., Docket No. 19-0951 (issued October 24, 2019);
Jaja K. Asaramo, 55 ECAB 200 (2004).
7

I.S., Docket No. 19-1461 (issued April 30, 2020).

8

K.W., Docket No. 18-0991 (issued December 11, 2018).

9

G.R., Docket No. 18-0735 (issued November 15, 2018).

10

Id.

7

a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.11
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted a series of medical reports from Dr. Hill who
opined that appellant’s diagnosed emotional conditions were a direct cause of the chronic pain she
had developed and suffered from following the April 9, 2013 employment injury because it had
limited her mood, her activities, and her lifestyle. Dr. Hill explained how the accepted conditions
were sufficient to have resulted in the development of the emotional conditions he had diagnosed.
Further, he diagnosed PTSD and explained how appellant’s injury during a motor vehicle incident
triggered depression and anxiety symptoms such as panic attacks and led to the development of
her major depressive and panic disorders due to her fear and the trauma associated with the motor
vehicle incident which was sufficient to have caused physical injury.
The Board finds that the opinion of Dr. Hill is sufficient to require further development of
the medical evidence on the issue of whether the acceptance of the claim should be expanded to
include emotional conditions as causally related to the accepted April 9, 2013 employment injury.
Dr. Hill is a psychiatrist qualified in the appropriate field of medicine to render rationalized
opinions on the issue of causal relationship and he provided a comprehensive understanding of the
medical record and case history. He provided consistent diagnoses of mental health conditions
and directly opined that they were causally related to the accepted injury explaining how each
condition had developed as a result of the employment injury. Accordingly, the medical opinion
of Dr. Hill is sufficient to require further development of appellant’s claim.12
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13 OWCP has an obligation to see that justice is
done.14
On remand OWCP shall follow its procedures for the development of emotional condition
claims and refer appellant to an appropriate specialist, along with the case record and a statement
of accepted facts, for an examination and a rationalized medical opinion as to whether the
acceptance of her claim should be expanded to include emotional conditions as causally related to

11

K.S., Docket No. 17-1583 (issued May 10, 2018).

12

D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket
No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).
13

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
14
See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).

8

her accepted employment injury.15 If the second opinion physician disagrees with the opinion
provided by Dr. Hill, he or she must provide a fully-rationalized explanation explaining why the
accepted employment injury and the previously accepted conditions are insufficient to have caused
or aggravated emotional conditions. Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision regarding expansion of the acceptance of the
claim to include additional conditions.
LEGAL PRECEDENT -- ISSUE 2
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.16 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.17
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.18
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.19 Where no such rationale is present,
the medical evidence is of diminished probative value.20

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1631 (issued February 12, 2020).
16

20 C.F.R. § 10.5(x); see J.D., Docket No. 18-1533 (issued February 27, 2019).

17
See id. A recurrence does not occur when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties, or a reduction-in-force. Id.
18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket
No. 18-0533 (issued August 27, 2018).
19

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

20

H.T., Docket No. 17-0209 (issued February 8, 2018).

9

ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted an addendum report dated January 16, 2018
from Dr. Feeman who noted that the jerking motion she had to make with her arms to swerve,
along with breaking created enough force on the rotator cuff tendon when combined with a jerking
motion to cause it to tear completely. Dr. Feeman further indicated that the mechanics of the
accident caused the tendons in her shoulders to swell causing impingement syndrome and
radiculopathy. Therefore, it was his medical opinion that the resulting impact of appellant having
to hit the brake, swerve, and jerk the steering wheel while driving on the highway to avoid debris
caused additional cervical and bilateral shoulder conditions. Dr. Feeman was also in agreement
with Dr. Williams that appellant was totally disabled from work as of March 6 to 27, 2014 pending
results of her diagnostic studies and that she was unable to perform any overhead activities as of
March 27, 2014 and continuing due to her ongoing functional deficits from her work-related neck
and shoulder conditions.
It is well established that, proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.21 While Dr. Feeman’s reports do not contain
sufficient rationale to discharge appellant’s burden of proof by the weight of the reliable,
substantial, and probative evidence that her neck and bilateral shoulder condition were caused or
aggravated by the accepted employment factors, these reports raise an inference of causal
relationship sufficient to require further development of the case record by OWCP.22
The Board, therefore, finds that the case must be remanded for further development of the
medical evidence. On remand OWCP shall prepare a statement of accepted facts and refer
appellant, together with the case record, to a specialist in the appropriate field of medicine for a
reasoned opinion as to whether her accepted employment factors either caused or aggravated her
neck and bilateral shoulder conditions and whether those conditions caused her to be disabled from
work commencing March 6, 2014.23 If the physician opines that the diagnosed condition is not
causally related to the accepted employment factors, he or she must explain with rationale how or
why their opinion differs from that of Dr. Feeman. Following this and other such further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision with regard to expansion of
emotional conditions. The Board further finds that the case is not in posture for decision with

21

J.H., Docket No. 18-1637 (issued January 29, 2020). See also A.P., Docket No. 17-0813 (issued January 3,
2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).
22

See T.K., Docket No. 20-0150 (issued July 9, 2020); John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne,
29 ECAB 820 (1978).
23

Supra note 15 at Chapter 2.805.3e (January 2013). See R.D., Docket No. 18-1551 (issued March 1, 2019).

10

regard to the claim of recurrence of disability and expansion to include neck and bilateral should
conditions.
ORDER
IT IS HEREBY ORDERED THAT the September 30 and July 26, 2019 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: February 5, 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

11


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

)
)
)
)
)
)
)
)

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

Docket No. 07-1411
Issued: January 24, 2008

Case Submitted on the Record

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

JURISDICTION
On April 23, 2007 appellant filed a timely appeal from Office of Workers’ Compensation
Programs’ decisions dated October 18, 2006 and March 19, 2007. Under 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office abused its discretion by denying appellant
authorization for the purchase of a motorized wheelchair scooter; and (2) whether the Office
properly denied appellant’s request for an oral hearing before an Office hearing representative.
FACTUAL HISTORY
Appellant, a 51-year-old tractor trailer operator, sustained injuries in the performance of
duty on January 3, 1984, April 22 and May 31, 1985, November 16, 1992, November 10, 1998
and January 19, 2000. The Office accepted her claims for contusion of the spinal cord
myelopathy; fracture of the radial head and neck of the left forearm and elbow; and authorized
surgery for C3, C4, C5 decompression and laminectomies.

In a report dated July 30, 2002, Dr. Mark Bernhardt, Board-certified in orthopedic
surgery, stated:
“I first saw [appellant] on February 1, 2000, and recommended surgical treatment
for his acute cervical myelopathy. When he fell, he bruised his spinal cord
causing permanent injury to his spinal cord.
“The bruising of his spinal cord is responsible for the numbness in his arms and
hands and weakness causing difficulty reaching above his head. It also effects his
lower extremity balance and is the reason why he drags his feet. It causes him
weakness in the lower extremities causing difficulty to climb up or go down
stairs. It makes walking any distance longer than one block difficult and has
effected his standing abilities such that he cannot stand more than 10 minutes
without difficulty. Because of his weakness in his hands, he cannot hold a knife
or fork properly. He has sharp pain in the back of his neck when he turns his head
to his right or left. All of these symptoms have a physiologic basis connected to
his spinal cord injury. I consider him to be totally disabled from being able to
work.”
No additional medical reports were received from Dr. Bernhardt until a treatment slip
dated July 17, 2006. He prescribed a four-wheel motorized scooter to assist with appellant’s
mobility. On July 28, 2006 appellant requested authorization to purchase a motorized
wheelchair scooter from the Scooter Store; the purchase price was $4,460.80.
By letter to appellant dated August 1, 2006, the Office requested a medical report
establishing the medical necessity of the motorized wheelchair scooter.
On August 25, 2006 Dr. Bernhardt submitted handwritten responses to an Office
questionnaire requesting medical rationale in support of the motorized wheelchair scooter.
When asked to explain how appellant’s medical condition necessitated the use of a wheelchair,
Dr. Bernhardt responded, “Difficulty walking due to cervical myelopathy.” When asked to
discuss whether a powered wheelchair was required or if a standard nonmotorized chair was
adequate, he stated, “Given his age a powered wheelchair would allow better community
ambulation.”
In a report dated October 16, 2006, Dr. Daniel O. Zimmerman, an Office medical adviser
and a Board-certified orthopedic surgeon, reviewed the medical record. He recommended that
the Office deny authorization for a motorized wheelchair scooter. Dr. Zimmerman stated:
“There is no medical documentation from Dr. Bernhardt or any other medical care
provider which would permit the Office to authorize a motorized scooter.
“For the Office to authorize the purchase of a motorized scooter, it must be
demonstrated, considering signs and symptoms, the cervical spine condition if a
motorized scooter is needed at all, is the reason for the need. The nonworkrelated conditions discussed in the statement of accepted facts would be the
condition[s] which cause this claimant to request through Dr. Bernhardt a
motorized scooter.
2

“[The Office] has no documentation in recent years to allow, based on
consideration of signs and symptoms whether this person needs any kind of
assistance equipment.”
By decision dated October 18, 2006, the Office denied authorization for the purchase of a
motorized scooter.
On February 14, 2007 appellant requested an oral hearing.
By decision dated March 19, 2007, the Office denied appellant’s request for an oral
hearing. The Office stated that appellant’s request was postmarked February 14, 2007, which
was more than 30 days after the issuance of the Office’s October 18, 2006 decision, and that he
was therefore not entitled to a hearing as a matter of right. The Office nonetheless considered
the matter in relation to the issue involved and denied appellant’s request on the grounds that the
issue was factual and medical in nature and could be addressed through the reconsideration
process by submitting additional evidence.
LEGAL PRECEDENT -- ISSUE 1
Section 8103 of the Federal Employees’ Compensation Act1 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability, or aid in
lessening the amount of the monthly compensation.2 In interpreting this section of the Act, the
Board has recognized that the Office has broad discretion in approving services provided under
the Act. The Office has the general objective of ensuring that an employee recovers from his
injury to the fullest extent possible in the shortest amount of time. The Office therefore has
broad administrative discretion in choosing means to achieve this goal. The only limitation on
the Office’s authority is that of reasonableness. Abuse of discretion is generally shown through
proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which are
contrary to both logic and probable deductions from established facts. It is not enough to merely
show that the evidence could be construed so as to produce a contrary factual conclusion.3
ANALYSIS -- ISSUE 1
The Office accepted that appellant had sustained contusions of the spinal cord
myelopathy; fracture of the radial head and neck of the left forearm and elbow; and authorized
surgery for C3, C4, C5 decompression and laminectomies. Dr. Bernhardt recommended surgery
for appellant’s work-related cervical myelopathy in his July 30, 2002 report. He described
appellant’s condition and noted some difficulties in ambulation. No additional medical reports
addressing appellant’s condition were submitted until four years later. On July 17, 2006
Dr. Bernhardt recommended the purchase of a four-wheel motorized scooter to assist with
1

5 U.S.C. § 8101 et seq.

2

5 U.S.C. § 8103.

3

Daniel J. Perea, 42 ECAB 214 (1990).

3

appellant’s mobility. He indicated that appellant required the use of the motorized wheelchair
because he had difficulty walking due to cervical myelopathy. Dr. Bernhardt asserted that a
motorized wheelchair was preferable to a standard nonmotorized wheelchair. In light of
appellant’s advanced age, the motorized wheelchair would allow “better community
ambulation.” Appellant’s authorization request was reviewed by Dr. Zimmerman, the Office
medical adviser, who recommended that the Office deny the request because appellant had failed
to submit a report based on a recent medical examination to establish that appellant’s workrelated cervical myelopathy condition required the use of a motorized scooter. The Office
accordingly denied authorization for the purchase of a motorized scooter in its October 18, 2006
decision.
As noted above, the only restriction on the Office’s authority to authorize medical
treatment is one of reasonableness. Dr. Bernhardt, appellant’s treating physician, did not provide
a recent, updated medical opinion complete with findings on examination or explaining the need
for the motorized scooter wheelchair. His most recent medical report, written in July 2002, is
not relevant to the request for a motorized wheelchair in 2006. Moreover, Dr. Bernhardt most
recent notes merely recommended the purchase of a motorized scooter.4 He did not provide
updated findings on examination or explain how the accepted cervical condition prevented or
limited appellant’s ability to walk. The medical evidence from Dr. Bernhardt does not
adequately address why appellant requires a motorized wheelchair scooter due to his accepted
C6-7 radiculopathy condition. The Office properly denied appellant’s request for authorization
to purchase a motorized scooter.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant is entitled to a hearing before an
Office representative when a request is made within 30 days after issuance of an Office final
decision.5 A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark of the request.6 The Office has
discretion, however, to grant or deny a request that is made after this 30-day period.7 In such a
case, the Office will determine whether a discretionary hearing should be granted or, if not, will
so advise the claimant with reasons.8
ANALYSIS -- ISSUE 2
In the present case, because appellant’s February 14, 2007 request for a hearing was
postmarked more than 30 days after the Office’s October 18, 2006 decision denying
authorization for the purchase of a motorized scooter, he is not entitled to a hearing as a matter of
4

William C. Thomas, 45 ECAB 591 (1994).

5

5 U.S.C. § 8124(b)(1).

6

20 C.F.R. § 10.131(a)(b).

7

William E. Seare, 47 ECAB 663 (1996).

8

Id.

4

right. The Office considered whether to grant a discretionary hearing and correctly advised
appellant that he could pursue his claim through the reconsideration process. As appellant may
address the issue in this case by submitting to the Office new and relevant evidence with a
request for reconsideration, the Board finds that the Office properly exercised its discretion in
denying appellant’s request for a hearing. The Board therefore affirms the Office’s March 19,
2007 decision denying appellant an oral hearing by an Office hearing representative.9
CONCLUSION
The Board finds that the Office did not abuse its discretion by denying appellant’s request
for authorization to purchase a motorized scooter. The Board finds the Office properly denied
appellant’s request for an oral hearing before an Office hearing representative.
ORDER
IT IS HEREBY ORDERED THAT the March 19, 2007 and October 18, 2006
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: January 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9

The Board notes that appellant submitted additional evidence to the record following the March 19, 2007 Office
decision. The Board’s jurisdiction is limited to a review of evidence which was before the Office at the time of its
final review. 20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.G., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATURAL RESOURCES CONSERVATION
SERVICE, Maquoketa, IA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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)

Docket No. 15-1413
Issued: December 29, 2015

Case Submitted on the Record

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

On June 16, 2015 appellant filed a timely appeal from a March 23, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the
appeal as No. 15-1413.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In its March 23, 2015 decision, OWCP denied
appellant’s request for reconsideration as untimely filed and lacking clear evidence of error. The
decision was issued under the name of Marla Spriggs, who is identified as a “[c]ommunications
[s]pecialist.”
Pursuant to 20 C.F.R. § 10.125(b), “OWCP claims staff apply the law, the regulations,
and its procedures to the facts as reported or obtained upon investigation” with regard to the
entitlement to benefits.
OWCP procedures do not designate signature authority to
communications specialists but rather to claims examiners, senior claims examiners, and district
directors.1 OWCP’s procedures contemplate that a senior claims examiner should deny untimely
1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400 Exhibit 1
(February 2013).

applications for reconsideration which do not present clear evidence of error.2 As Ms. Spriggs is
not a senior claims examiner or other OWCP official with signature authority, she cannot be
considered “claims staff.” Consequently, OWCP has issued an inadequate decision with respect
to the requirements of its regulations and procedures. For this reason, the case will be remanded
to OWCP to issue an appropriate decision. Accordingly,
IT IS HEREBY ORDERED THAT the March 23, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: December 29, 2015
Washington, DC

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

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

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

2

See id. at 2.1602.2(b); 2.1602.5(b) (October 2011). Section 2.1602.5(b) also states that the decision shall
include a brief evaluation of the evidence submitted. The Board notes that OWCP’s decision did not evaluate any of
the evidence submitted by appellant in finding that clear evidence of error was not established.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 17-0321
Issued: April 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 29, 2016 appellant filed a timely appeal from an October 26, 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 has met his burden of proof to establish ratable binaural
hearing loss warranting a schedule award.
On appeal, appellant contends that OWCP’s decision was unjust and he should have been
granted a schedule award since his work-related hearing loss has significantly changed his
quality of life.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 23, 2015 appellant, then a 56-year-old supervisory waterfront safety specialist,
filed an occupational disease claim (Form CA-2) for hearing loss. He alleged that on May 27,
2015 he first became aware of a threshold shift in both ears and realized that his condition was
caused or aggravated by his federal employment based on an audiologist’s report.
By letter dated July 1, 2015, OWCP advised appellant of the type of evidence needed to
establish his claim. It also requested that the employing establishment respond to his allegations
and provide noise survey reports for each site where he worked, the sources and period of noise
exposure for each location, whether he wore ear protection, and copies of all medical
examinations pertaining to hearing or ear problems, including preemployment examinations and
audiograms.
In a June 23, 2015 statement, appellant noted that he was a gun owner, but that he only
shot his gun about twice a year and used foam earplugs. He related that he had not previously
seen a physician regarding his hearing loss. Appellant indicated that during an annual hearing
test conducted by the employing establishment on May 27, 2015, an attending audiologist
informed him that he had significant hearing loss. The audiologist also informed him that he was
too young to have that level of hearing loss from natural degradation.
Appellant submitted employment records which included his work history and exposure
to noise from June 1975 through the present. He also submitted a description of his supervisory
waterfront safety specialist position.
In letters dated August 3, 2015, the employing establishment noted that appellant was
currently employed as a supervisor waterfront safety specialist. It further noted that he had been
in a hearing conservation program from 1989 through the present. The employing establishment
related that appellant was exposed to noise as described in his position description. Appellant
was provided with hearing protection during his employment.
OWCP received audiograms dated November 21, 1989 through May 27, 2015 performed
by the employing establishment as part of the hearing conservation program. These revealed that
appellant had bilateral sensorineural hearing loss.
By letter dated October 7, 2015, OWCP informed appellant of his referral for a second
opinion evaluation with an otolaryngologist, along with a statement of accepted facts, a set of
questions, and the medical record.
In a letter dated October 8, 2015, OWCP’s medical scheduler informed appellant, that an
examination was scheduled with Dr. Gerald G. Randolph, a Board-certified otolaryngologist, for
November 3, 2015. In a November 3, 2015 medical report, Dr. Randolph noted that he had
examined appellant on that date and referenced his exposure to workplace noise. He reported
appellant’s complaints of hearing loss and intermittent tinnitus and noted his medical, family,
and socioeconomic background. Dr. Randolph reviewed the employing establishment’s
audiometric data. He reported that his examination of appellant’s external auditory canals and
tympanic membranes was normal. Basic tuning fork tests revealed that the Weber test did not

2

lateralize. Air conduction was greater than bone conduction bilaterally. There was no indication
of medical conditions, such as acoustic neuroma or Meniere’s disease. Dr. Randolph noted that
an audiogram performed on the date of his examination revealed hearing loss with an
audiometric configuration compatible with hearing loss due to noise exposure. He diagnosed
bilateral sensorineural hearing loss that was in part, or all, due to noise exposure in appellant’s
federal civil employment. Dr. Randolph recommended bilateral hearing aids.
The November 3, 2015 audiogram performed on behalf of Dr. Randolph reflected testing
at the frequency levels of 500, 1,000, 2,000, and 3,000 hertz (Hz) and revealed the following:
right ear 5, 5, 20, and 50 decibels (dBs), respectively; left ear 5, 5, 20, and 45 dBs, respectively.
Utilizing the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment2 (A.M.A., Guides), Dr. Randolph determined that appellant had zero
percent ratable hearing loss in both ears.
On December 21, 2015 OWCP accepted appellant’s claim for bilateral noise effects on
the inner ear.
In a January 11, 2016 letter, Amy M. Becken, a certified audiologist, advised OWCP that
hearing test results showed that appellant had severe high frequency sensorineural hearing loss
bilaterally. She noted that speech reception thresholds were consistent with pure tone averages
calculated for each ear. Ms. Becken found that speech discrimination scores were reduced in
both ears. She noted the acceptance of appellant’s claim for bilateral hearing loss and requested
authorization for hearing devices based on his communication issues.
On July 15, 2016 appellant filed a claim for a schedule award (Form CA-7).
On July 25, 2016 an OWCP district medical adviser (DMA) reviewed Dr. Randolph’s
report and the November 3, 2015 audiometric test. He agreed that appellant had zero percent
binaural hearing loss under the sixth edition of the A.M.A., Guides. The DMA totaled the dB
losses for the right ear of 5, 5, 20, and 50 at 500, 1,000, 2,000, and 3,000 Hz, respectively, to
equal 80. He averaged the losses to determine that appellant had an average hearing loss of 20
dBs. The DMA then subtracted a 25-dB fence and multiplied the balance of -5 by 1.5 to find
zero percent right ear monaural hearing loss. For the left ear, he added the dB losses of 5, 5, 20,
and 45 at 500, 1,000, 2,000, and 3,000 Hz, respectively, to equal 75. The DMA averaged the
losses to determine that appellant had an average hearing loss of 18.75 dBs. He then subtracted a
25-dB fence and multiplied the balance of -6.25 by 1.5 to find zero percent left ear monaural
hearing loss. The DMA concluded that appellant had no ratable hearing impairment. He noted
the date of maximum medical improvement as November 16, 2015. The DMA recommended
annual audiograms and noise protection for appellant’s ears and authorized hearing aids.
In a decision dated October 26, 2016, OWCP found that, although appellant’s hearing
loss was employment related, it was not severe enough to be considered ratable for purposes of a
schedule award. It authorized additional medical benefits, including hearing aids.

2

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

3

LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged.7 Then, the fence of 25 dBs is deducted
because, as the A.M.A., Guides points out, losses below 25 dBs result in no impairment in the
ability to hear everyday speech under everyday conditions.8 The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss.10 The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s DMA for an opinion concerning the nature and percentage in
accordance with the A.M.A., Guides with the DMA providing rationale for the percentage of
impairment specified.12

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

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

6

Supra note 2.

7

Id.

8

Id.

9

Id.

10

Id.

11

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).
12

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

4

ANALYSIS
The Board finds that appellant has not established ratable binaural hearing loss.
OWCP referred appellant to Dr. Randolph, a second opinion physician, regarding his
hearing loss. Dr. Randolph’s November 3, 2015 examination found that appellant’s bilateral
sensorineural hearing loss was due to his workplace noise exposure. The audiogram performed
on that date revealed dB losses of 5, 5, 20, and 50 at 500, 1,000, 2,000, and 3,000 Hz,
respectively, for the right ear. Testing of the left ear revealed dB losses of 5, 5, 20, and 45 at
500, 1,000, 2,000, and 3,000 Hz, respectively. Dr. Randolph found zero percent hearing loss in
both ears.
Consistent with its procedures, OWCP properly referred the file to its DMA for a rating
of permanent impairment in accordance with the sixth edition of the A.M.A., Guides.
On July 25, 2016 OWCP’s DMA reviewed Dr. Randolph’s report and the November 3,
2015 audiogram and concluded that appellant had no ratable hearing loss to warrant a schedule
award. The DMA, properly added the right ear dBs losses to reach 80 and averaged this sum to
reach 20. He then subtracted the fence of 25 as directed by the A.M.A., Guides to reach -5 and
multiplied this amount by 1.5 to reach zero percent monaural loss for the right ear. The DMA
added the left ear dBs losses to total 75 and averaged this sum to total 18.75. He then subtracted
the fence of 25 to reach -6.25 and multiplied this amount by 1.5 to reach zero percent monaural
loss for the left ear. As the monaural hearing loss rating was zero percent for both the right and
left ears, the binaural hearing loss was also zero percent.13 This does not mean that appellant has
no hearing loss. Rather, it means that the extent or degree of loss is insufficient to show a ratable
impairment in hearing according to the A.M.A., Guides.14 The A.M.A., Guides set a threshold
for impairment and appellant’s occupational hearing loss did not cross that threshold. The Board
finds that the DMA applied the proper standards to the November 3, 2015 audiogram to
determine that appellant had no ratable, work related, binaural hearing loss for schedule award
purposes.15
Although appellant submitted results from the employing establishment’s annual
audiometric testing from November 21, 1989 to May 27, 2015, these audiograms do not comply
with the requirements set forth by OWCP. They lack proper certification of calibration, speech
testing, and bone conduction scores and were not prepared or certified as accurate by a physician
as defined by FECA. Further, the audiograms were not accompanied by a physician’s opinion
addressing how appellant’s employment-related noise exposure caused or aggravated any
hearing loss. It is appellant’s burden to submit a properly prepared and certified audiogram to

13

A.M.A., Guides 249-51.

14

See P.V., Docket No. 13-1870 (issued January 7, 2014).

15

See S.G., 58 ECAB 383 (2007).

5

OWCP.16 OWCP was not required to rely on this evidence in determining the degree of
appellant’s hearing loss as it failed to constitute competent medical evidence.17
The January 11, 2015 report from Ms. Becken, an audiologist, has no probative medical
value because an audiologist is not considered a physician as defined under FECA.18
On appeal, appellant contends that OWCP’s decision was unjust and he should have been
awarded a schedule award since his work-related hearing loss has significantly changed his
quality of life. However, the Board has held that factors such as employability or limitations on
daily activities have no bearing on the calculation of impairment.19 For the reasons stated, the
Board finds that appellant has not established ratable employment-related binaural hearing loss
for schedule award purposes.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish ratable
binaural hearing loss warranting a schedule award.

16

See R.B., Docket No. 10-1512 (issued March 24, 2011); Robert E. Cullison, 55 ECAB 570 (2004); Vincent
Holmes, 53 ECAB 468 (2002) (OWCP does not have to review audiograms not certified by a physician. See also
J.B., Docket No. 12-0607 (issued August 9, 2012); 5 U.S.C. § 8101(2) (defines the term physician).
17

Id. See also H.M., Docket No. 13-1061 (issued July 29, 2013); M.T., Docket No. 12-1294 (issued
December 6, 2012).
18

5 U.S.C. § 8101(2); M.P., Docket No. 13-1790 (issued December 17, 2013) (an audiologist is not considered a
physician under FECA and the audiologist’s opinion regarding the medical cause of a claimant’s hearing loss is of
no probative medical value).
19

J.H., Docket No. 08-2432 (issued June 15, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the October 26, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 24, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7