United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Polk, LA, Employer
__________________________________________

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

Docket No. 12-624
Issued: August 1, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 25, 2012 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) overpayment decision dated December 19, 2011. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $2,301.20 from January 17, 2010 to August 17, 2011; (2) whether
OWCP abused its discretion in denying waiver of the overpayment.
FACTUAL HISTORY
Appellant, a 41-year-old nursing assistant, injured her right ankle on June 30, 2009 when
she fell to the floor while getting out of a chair. She filed a claim for benefits, which OWCP
1

5 U.S.C. § 8101 et seq.

accepted for right ankle fracture and nonunion of right ankle fracture. OWCP paid appellant
appropriate compensation for temporary total disability compensation.
An OWCP memorandum dated January 27, 2010 indicated that appellant’s health benefit
premiums were being deducted under code 112. An OWCP pay rate worksheet dated
January 28, 2010 reflected that she had health benefit premiums of $292.59 deducted from her
monthly compensation checks pursuant to code 112.
In an October 11, 2011 Office of Personnel Management Notice of Change in Health
Benefits Enrollment form, it was indicated that appellant’s health benefits were being deducted
for the wrong code, code 112, instead of the correct code, code 105.
OWCP worksheets dated November 1, 2011, found that an overpayment had occurred in
the amount of $2,301.20 for the period January 17, 2010 to August 17, 2011 because her health
benefits premiums were calculated to pursuant to code 112. The overpayment was calculated in
the following manner: the difference between the health premiums deducted under code 112,
and the health premiums she should have had deducted under code 105 for the period January 17
to 18, 2010 was $10.88; $108.81 for the period June 14 to July 3, 2010; $1,066.45 for the period
July 4, 2010 to January 15, 2011; $1,073.38 for the period January 16 to July 30, 2011; and
$41.68 for the period July 31 to August 17, 2011, for a total overpayment of $2,301.20.
On November 15, 2011 OWCP issued a preliminary determination that an overpayment
had occurred in the amount of $2,301.20 for the period January 17, 2010 to August 17, 2011. It
noted that the overpayment had occurred because the appropriate health benefit premiums were
not deducted from her continuing compensation payments during the period, and advised
appellant that if she disagreed with the fact or amount of the overpayment she could submit new
evidence in support of her contention or request a prerecoupment hearing. OWCP advised that
appellant had been found without fault in the creation of the overpayment and requested that she
complete the enclosed overpayment questionnaire (OWCP-20). Appellant was specifically
informed that failure to submit the requested information would result in denial of waiver of the
overpayment. She did not respond to this letter.
In a decision dated December 19, 2011, OWCP finalized the preliminary determination
regarding the overpayment of $2,301.20. It found that appellant was not entitled to waiver
because she did not respond to the November 15, 2011 preliminary determination and did not
complete and submit the attached Form OWCP-20 overpayment questionnaire.
LEGAL PRECEDENT -- ISSUE 1
The regulations of the Office of Personnel Management (OPM), which administers the
Federal Employees’ Health Benefits program, provide guidelines for registration, enrollment and
continuation of enrollment of federal employees.
In this connection, 5 C.F.R.
§ 890.502(a)(1) provides:
“[A]n employee or annuitant is responsible for payment of the employee or
annuitant share of the cost of enrollment for every pay period during which the
enrollment continues. An employee or annuitant incurs an indebtedness due to
2

the United States in the amount of the proper employee or annuitant withholding
required for each pay period that health benefit withholdings or direct premium
payments are not made but during which the enrollment continues.”2
In addition, 5 C.F.R. § 890.502(c) provides:
An agency that withholds less than the proper health benefits contributions from an
individual’s pay, annuity or compensation must submit an amount equal to the sum of the
uncollected contributions and applicable agency contributions required under section 8906 of
Title 5 United States Code, to OPM for deposit in the Employees’ Health Benefits Fund.3
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.4 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.5 The Board has recognized that, when an under withholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
OWCP must pay the full premium to OPM when the error is discovered.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,301.20 for the period January 17, 2010 through
August 17, 2011.
The record shows that an overpayment occurred because deductions of health benefit
premiums from appellant’s compensation were computed pursuant to the wrong code during this
period. In its January 27, 2010 memorandum and January 28, 2010 pay rate worksheet OWCP
indicated that appellant’s health benefit premiums were being deducted under code 112. An
October 11, 2011 OPM Notice of Change in Health Benefits Enrollment form found that
appellant’s health benefits were being deducted for the wrong code, code 112, instead of the
correct code, code 105. OWCP worksheets dated November 1, 2011, found that an overpayment
had occurred in the amount of $2,301.20 for the period January 17, 2010 to August 17, 2011
because appellant’s health benefits premiums were calculated pursuant to code 112. OWCP
calculated the amount of overpayment by taking the amount of health premiums appellant had
deducted from her compensation checks from January 17, 2010 through August 17, 2011 during
this period under code 112, and subtracting the amount of health premiums appellant should
have had deducted from her compensation checks during this period under code 105 to arrive at
2

5 C.F.R. § 890.502(a)(1).

3

Id. at § 890.502(c).

4

Supra note 2.

5

Supra note 3.

6

See James Lloyd Otte, 48 ECAB 334 (1997); Marie D. Sinnett, 40 ECAB 1009 (1989); John E. Rowland, 39
ECAB 1377 (1988); 5 C.F.R. § 890.502.

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an overpayment of $2,301.20. Based on this determination, OWCP properly found that appellant
received an overpayment of compensation in the stated amount during that period.
The record establishes that $2,301.20 in premiums for health benefits were not deducted
from compensation for the period January 17, 2010 through August 17, 2011. Thus, an
overpayment was created by the underdeduction of premiums for health benefits. Appellant
consequently received an overpayment of compensation due to OWCP’s failure to deduct
premiums for health insurance coverage under the correct code, code 105.7 Therefore, OWCP
properly determined that appellant received an overpayment of compensation in the amount of
$2,301.20 for the period January 17, 2010 through August 17, 2011.
LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment.8 An individual should always be
found without fault where the overpayment resulted from OWCP error in the under deduction of
health benefits or life insurance premiums.9
If OWCP finds that, the recipient of an overpayment was not at fault, repayment will still
be required unless: (1) adjustment or recovery of the overpayment would defeat the purpose of
FECA; or (2) adjustment or recovery of the overpayment would be against equity and good
conscience.10
Section 10.438 of OWCP’s regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial
of waiver and no further request for waiver shall be considered until the requested information is
furnished.11
ANALYSIS -- ISSUE 2
OWCP determined that appellant was without fault in the creation of the overpayment.
The fact that she was without fault does not preclude OWCP from recovering all or part of the
overpayment.12 Appellant did not submit a response to OWCP’s November 15, 2011
7

See supra notes 4 through 6 and accompanying text.

8

20 C.F.R. § 10.433(a).

9

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.5(b) (June 2009).
10

20 C.F.R. § 10.434. See 5 U.S.C. § 8129(b).

11

Id. at § 10.438; Linda Hilton, 52 ECAB 476 (2001).

12

See George A. Rodriguez, 57 ECAB 224 (2005).

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preliminary determination and did not submit a completed Form OWCP-20. Therefore OWCP
acted properly in refusing appellant’s request for waiver. OWCP was precluded from evaluating
waiver of the overpayment.
Appellant contends on appeal that she should not be responsible for repaying the
overpayment because she was not aware that an overpayment had occurred until she received
OWCP’s November 15, 2011 preliminary determination. As indicated above, however, the fact
that appellant was found to be without fault does not relieve her of responsibility for repaying the
overpayment. In addition, she argues that she did not complete and submit the Form OWCP-20
because she and her husband did not feel comfortable in submitting their personal, financial
information. Appellant indicated that she would have difficulty repaying the overpayment
because she had not worked since June 2009; she has not received compensation checks since
October 6, 2011; her husband was on social security disability and they had to support an
adopted son.
The Board has held that OWCP must rely on a claimant’s current financial situation at
the time of the waiver determination.13 Appellant did not submit the requested financial
information prior to the waiver determination and therefore OWCP could not evaluate her
financial ability to repay the overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,301.20 for the period January 17, 2010 through
August 17, 2011. The Board finds that the overpayment occurred because OWCP neglected to
deduct the correct amount of health insurance premiums from appellant’s continuing
compensation. The Board further finds that OWCP properly denied waiver of the overpayment.

13

L.S., 59 ECAB 350 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the December 19, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Anchorage, AK, Employer
__________________________________________

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Appearances:
Kevin McGee, for the appellant
Office of Solicitor, for the Director

Docket No. 10-13
Issued: September 8, 2010

Case Submitted on the Record

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

JURISDICTION
On September 20, 2009 appellant, through her representative, filed a timely appeal from
October 1, 2008 and April 1, 2009 merit decisions of the Office of Workers’ Compensation
Programs denying her emotional condition claim.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition in the performance
of duty casually related to factors of her federal employment.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
On March 3, 2008 appellant, then a 43-year-old voucher examiner, filed an occupational
disease claim alleging that she sustained post-traumatic stress disorder (PTSD) and dysthymic
disorder due to factors of her federal employment.
In an accompanying statement, appellant referred to a specific incident on December 5,
2007 when Michelle Moreland, a coworker, repeatedly told her that she had spoken with Rhonda
Munnlyn, a supervisor, about the workload. She went to the supervisor’s office. Ms. Moreland
“aggressively and angrily” entered the room waving her arms, shouting and pointing a finger at
appellant. She called appellant a liar and used profanity. Appellant believed that Ms. Moreland
might hit her. Ms. Moreland pounded her fist on Ms. Munnlyn’s file cabinet, came within
16 inches of appellant and shouted at appellant using profanity. Ms. Munnlyn asked appellant
and Ms. Moreland to resolve their differences. Appellant was reluctant, given Ms. Moreland’s
verbal assault and intimidation but agreed to shake hands and hug her, even though she told
Ms. Munnlyn that she “really felt uncomfortable doing that….”2
In a certification of health care provider form dated March 4, 2008, Dr. Rick Graber, a
psychologist, noted that appellant had a history of serious physical and emotional abuse with
PTSD, “retriggered by recent work-related events.” He found that she should remain off work.
In a letter to appellant dated March 31, 2008, Dr. Graber and Dr. Hugh Starks, a Boardcertified psychiatrist, stated:
“On December 5, 2007 you reported an incident at work in which you were
verbally attacked by another employee at the [employing establishment] in front
of supervisory staff. The incident resulted in dramatically increased anxiety for
you, including fears that you could have this happen again, that nothing was being
done to address the situation and that your job was in serious jeopardy. This in
turn affected your ability to concentrate, disrupted your ability to sleep, triggered
depressive feelings and symptoms, depleted your energy, negatively affected your
self-esteem and generally resulted in a sense that you were not really safe at
work.”
Dr. Graber and Dr. Starks diagnosed an acute stress disorder and PTSD and noted that
appellant participated in counseling. They stated:
“The treatment was helpful to you in managing symptoms during the highest
stress times and now the situation is markedly improved. This is due substantially
to the departure of the person who made the verbal assaults, as well as
management’s efforts to improve the overall milieu of the office. There is little
doubt that the episodes and stressors at work were directly related to these
symptoms and now that the situation has improved your work performance,
attitude and overall outlook have changed markedly to being much more positive.
It seems very appropriate that your sick leave and vacation time, which you had to
2

On March 2, 2008 appellant described events that occurred subsequent to the December 5, 2007 work incident.

2

use in dealing with these stressors, should be restored due to the connection
between your symptoms and the unusual stressors at work.”
By decision dated October 1, 2008, the Office denied appellant’s emotional condition
claim. It determined that she had not established any compensable factors of employment.
In a statement dated September 26, 2008, received by the Office on October 2, 2008,
Ms. Munnlyn stated:
“In December 2007, there was a work incident between [appellant] and
Ms. Moreland concerning a work process. This evolved into a heated discussion
between the two employees in the supervisor’s office. [Appellant] said that she
felt threatened by Ms. Moreland although in subsequent conversations with [Jim
Else, the fiscal chief], she denied feeling threatened. I was in attendance at this
meeting and did not believe that she was in any danger from Ms. Moreland. I met
with both employees separately and the issue was resolved without any
disciplinary action for either employee. Ms. Moreland is no longer employed
with the [employing establishment] as of April 2008.”3
On October 14, 2008 appellant requested an oral hearing.
On February 11, 2008 Mr. Else, the fiscal chief, noted that he had three meetings with
appellant regarding the work environment. He indicated that he had reviewed the December 5,
2007 work incident and taken appropriate action. Mr. Else noted that appellant advised she
continued to feel threatened by Ms. Moreland.
At the hearing, held on February 4, 2009, appellant described the incident with
Ms. Moreland on December 5, 2007 and her subsequent stress-related condition. She clarified
that she was attributing her condition solely to the December 5, 2007 work incident.4
In a report dated January 20, 2009, Dr. Graber described appellant’s weekly treatment
and noted that some of the treatment “was directed at helping you deal with some symptoms of
depression and anxiety related to an incident in December 2007 in which you were verbally
attacked in front of a supervisor by another [employing establishment] employee.” He noted that
she had improved functioning due to her treatment.
In a statement dated March 19, 2009, appellant’s representative argued that the March 31,
2008 medical report from Dr. Graber and Dr. Stark attributed her acute stress disorder and PTSD
to the work incident. He asserted that she claimed three days of annual leave for time missed
due to her emotional reaction to the hostile work environment.

3

Ms. Munnlyn also addressed events occurring subsequent to December 5, 2007.

4

The hearing representative questioned whether appellant was attributing her condition solely to the December 5,
2007 incident. Appellant related that an additional incident occurred on September 12, 2008 and the hearing
representative advised her to file a separate claim for that incident.

3

By decision dated April 1, 2009, the hearing representative affirmed the October 1, 2008
decision as modified to show that appellant had established harassment by Ms. Moreland on
December 5, 2007 as a compensable employment factor. He found, however, that the medical
evidence was insufficiently rationalized to establish that appellant sustained an emotional
condition as a result of the establish work factor. The hearing representative further noted that
appellant attributed her emotional condition solely to events occurring on December 5, 2007.
On appeal, appellant’s representative asserted that appellant was the victim of workplace
bullying. He described the effects of workplace bullying and asserted that the employing
establishment erred in failing to address or prevent the “bullying tactics of Ms. Moreland
towards [appellant] that was occurring on a daily basis.”
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.5 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.6
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.7 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.8 The issue is whether the claimant has
submitted sufficient evidence under the Act to establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.9 The primary reason for
requiring factual evidence from the claimant in support of his or her allegations of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions

5

5 U.S.C. § 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

Gregorio E. Conde, 52 ECAB 410 (2001).

7

See C.S., 58 ECAB 137 (2006); Michael Ewanichak, 48 ECAB 364 (1997).

8

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

9

See James E. Norris, 52 ECAB 93 (2000).

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of the claimant, which in turn may be fully examined and evaluated by the Office and the
Board.10
ANALYSIS
Appellant did not attribute her emotional condition to the performance of her work duties
or to administrative error. While she provided a description of incidents occurring after
December 5, 2007, at the hearing she specified that she was not attributing her condition to any
even not occurring on December 5, 2007. Appellant maintained that she experienced PTSD and
dysthymic disorder as a result of a verbal altercation with Ms. Moreland on December 5, 2007.
If disputes and incidents alleged as constituting harassment and discrimination by supervisors
and coworkers are established as occurring and arising from the employee’s performance of her
regular duties, these could constitute employment factors.11 Verbal altercations and difficult
relationships with supervisors, when sufficiently detailed by the claimant and supported by the
evidence of record, may constitute factors of employment.12
Appellant alleged that she was in her supervisor’s office on December 5, 2007 when
Ms. Moreland burst into Ms. Munnlyn’s office, shouting and waving her finger. Ms. Moreland
used profanity toward appellant and pounded her fist on a filing cabinet. While Ms. Munnlyn
maintained that she believed that appellant was not in any actual danger from Ms. Moreland, this
is not determinative of whether her emotional reaction falls within coverage of the Act. The
employing establishment did not dispute that the events described by appellant occurred as
alleged. The Office thus properly accepted that she established harassment and verbal abuse by
Ms. Moreland as a compensable work factor. The issue, consequently, is whether the medical
evidence establishes that appellant sustained an injury causally related to the compensable work
factor.
Appellant’s burden of proof is not discharged by the fact that she has established an
employment factor which may give rise to a compensable disability under the Act. She must
also submit rationalized medical evidence establishing that she has an emotional or psychiatric
disorder and that such disorder is causally related to an accepted compensation employment
factor.13 In a form report dated March 4, 2008, Dr. Graber diagnosed a history of PTSD
“retriggered by recent work-related events.” He found that appellant should remain off work.
Dr. Graber did not address whether her diagnosed condition was causally related to the
December 5, 2007 work incident and thus his report is of little probative value.
On March 31, 2008 Dr. Graber and Dr. Starks related that appellant described being
“verbally attacked by another employee at the [employing establishment] in front of
supervisor[y] staff.” They noted that the incident caused anxiety, in part because of fear that it
would happen again, concern that the employing establishment was not managing the situation
10

L.S., 58 ECAB 249 (2006); Beverly R. Jones, 55 ECAB 411 (2004).

11

Janice I. Moore, 53 ECAB 777 (2002).

12

C.S., supra note 6; Marguerite Toland, 52 ECAB 294 (2001).

13

Alice M. Washington, 46 ECAB 382 (1994).

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and job insecurity. Dr. Graber and Dr. Starks diagnosed an acute stress disorder and PTSD.
They stated, “There is little doubt that the episodes and stressors at work were directly related to
these symptoms….” Dr. Graber and Dr. Starks, however, failed to adequately address how the
December 5, 2007 incident resulted in the diagnosed conditions of acute stress disorder and
Without detailed medical reasoning attributing appellant’s condition to the
PTSD.14
compensable work factor, the report is not sufficient to meet her burden of proof. Additionally,
Dr. Graber and Dr. Starks attributed appellant’s fear in part to her belief that, the December 5,
2007 incident might occur again, her fear of job loss and her lack of confidence in management.
The Board has held, however, that the possibility of a future injury does not form a basis for the
payment of compensation under the Act.15 The Board has also held that a claimant’s job
insecurity is not a compensable factor of employment.16
In a report dated January 20, 2009, Dr. Graber described appellant’s weekly treatment
directed in part to assisting her with depression and anxiety arising from a verbal assault in
December 2007 by a coworker. While he referred to the December 2007 employment incident,
he did not explain how the work factor resulted in the diagnosed conditions of depression and
anxiety. Without any rationale for Dr. Graber’s opinion on causation, his report is of little
probative value.17
The Board finds that the medical evidence does not contain a medical opinion, based on a
complete background and supported by rationale, establishing a diagnosed emotional condition
causally related to the December 5, 2007 employment incidents. Consequently, appellant has not
met her burden of proof to establish that she sustained an emotional condition causally related to
factors of her federal employment.
On appeal, appellant’s representative asserted that appellant was the victim of workplace
bullying. He described the effects of workplace bullying and asserted that the employing
establishment erred in failing to address or prevent the “bullying tactics of Ms. Moreland
towards [appellant] that was occurring on a daily basis.” At the hearing, however, appellant
related that she was claiming only the events occurring on December 5, 2007 as the cause of her
emotional condition.
CONCLUSION
The Board finds that appellant has not established an emotional condition in the
performance of duty casually related to the December 5, 2007 employment incident.

14

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008); M.D., 59 ECAB ___ (Docket No. 07-908,
issued November 17, 2007).
15

Manual Gill, 52 ECAB 282 (2001).

16

Robert Breeden, 57 ECAB 622 (2006).

17

See William P. George, 43 ECAB 1159 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the April 1, 2009 and October 1, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 8, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Joliet, IL, Employer
__________________________________________

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

Docket No. 14-404
Issued: May 2, 2014

Case Submitted on the Record

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

JURISDICTION
On December 13, 2013 appellant filed a timely appeal from a September 13, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
right foot injury causally related to factors of his federal employment.
FACTUAL HISTORY
On June 6, 2013 appellant, then a 49-year-old city letter carrier, filed an occupational
disease claim alleging that he developed a stress fracture, tendon inflammation and arthritis as a
result of walking in the course of his employment from 9 to 10 hours a day for four and one half
1

5 U.S.C. § 8101 et seq.

years. He became aware of his condition in March 2013 and of its relationship to his
employment in April 2013. Appellant stopped work on May 17, 2013.
In a diagnostic report dated May 17, 2013, Dr. Robert Palmer, a Board-certified
radiologist, reviewed the results of a magnetic resonance imaging (MRI) scan of appellant’s right
ankle. He listed a history of progressively worsening anterior pain of the right ankle and
hindfoot for six months with no known injury. Dr. Palmer noted extensive subchondral cyst
formation with stress-related reactive marrow; edema without a discrete fracture line on the first
and second intercuneiform joints and medial, middle and lateral cuneiform bones, respectively;
and a lesser degree involving the naviculocuneiform joint. The findings appeared degenerative
and related to repetitive trauma versus changes secondary to early Charcot arthropathy if
appellant had a history of diabetes or neuropathy. Dr. Palmer also noted a subchondral reactive
marrow edema and cystic changes with chondral thinning and fissuring of the medial tibiotalar
and ankle joint, which he stated may be degenerative changes secondary to altered weightbearing and kinetics versus a post-traumatic change. He further observed trace tenosynovitis of
the tibialis posterior, flexor digitorum longus and flexor ballucis longus tendons, which were
otherwise unremarkable. Dr. Palmer stated that appellant’s MRI scan revealed mild insertional
tendinopathy of the Achilles tendon without a discrete tear and early sinus tarsi and tarsal tunnel
syndrome.
Appellant also submitted an unsigned and undated report from Essington Podiatry Group.
On August 8, 2013 OWCP advised appellant of the evidence needed to establish his
claim. It requested that he submit a physician’s opinion as to how his employment activities
caused, contributed or aggravated his right foot condition, supported by medical explanation,
along with an explanation of the nature of his preexisting conditions, including its natural course
and how the underlying condition was affected by employment.
In a statement dated August 28, 2013, appellant noted that he injured his right foot and
could not walk for long distances. He did not engage in any sports, but did go to a health club
where he did not walk very much. Appellant noted that he experienced sharp pain in his right
foot prior to March 1, 2013, but had attributed it to arthritis and stated that he was not aware that
he had a stress fracture or inflamed tendons.
On September 13, 2013 OWCP denied appellant’s claim. It found that the medical
evidence did not establish that his right foot condition was causally related to factors of his
federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the

2

employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.4 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the compensable
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.8

2

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Michael E. Smith, 50 ECAB 313, 315 (1999).

4

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

5

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

6

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

7

Leslie C. Moore, 52 ECAB 132, 134 (2000).

8

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

3

ANALYSIS
OWCP denied appellant’s claim on the grounds that he did not establish a causal
relationship between his claimed right foot and ankle condition and work factors. The Board
finds that he has not submitted sufficient medical evidence to establish that his right foot
condition was caused or aggravated by factors of his federal employment.
On May 17, 2013 Dr. Robert Palmer, a Board-certified radiologist, reviewed the results
of an MRI scan of appellant’s right ankle. He noted a six-month history of progressive
worsening of the right ankle and hindfoot with no known injury. Dr. Palmer did not otherwise
address the relationship of appellant’s condition to the work he performed as a letter carrier.
Medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.9 Dr. Palmer’s report is
insufficient to meet appellant’s burden of proof to establish a causal relationship between workrelated factors and his claimed injury.
Appellant also submitted an unsigned and undated report from Essington Podiatry Group.
A medical report is not considered as probative medical evidence if there is no indication that the
person completing the report qualifies as a physician.10 As the report was unsigned, the author
cannot be readily identified as a physician. Consequently, it is of no probative value.
The Board finds that the medical evidence does not establish that appellant sustained a
right foot injury causally related to his employment. An award of compensation may not be
based on surmise, conjecture or speculation. Neither the fact that appellant’s condition became
apparent during a period of employment nor the belief that his condition was caused, precipitated
or aggravated by his employment, is sufficient to establish causal relationship.11 Causal
relationship must be established by rationalized medical opinion evidence. The Board finds that,
OWCP properly determined that appellant did not meet his burden of proof to establish his
claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
claimed right foot condition was causally related to his federal employment.

9

Supra note 3 at 316 n.8 (1999).

10

See Merton J. Sills, 39 ECAB 572, 575 (1988).

11

See Dennis M. Mascarenas, supra note 5.

4

ORDER
IT IS HEREBY ORDERED THAT the September 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1364
Issued: June 24, 2021

Case Submitted on the Record

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

On July 3, 2020 appellant filed a timely appeal from a June 29, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 20-1364.
On March 26, 2018 appellant, then a 52-year-old border patrol agent, filed an occupational
disease claim (Form CA-2) for hearing loss, which he first realized was caused by his federal
employment on July 1, 1996. He attributed his hearing loss to workplace noise exposure on a daily
basis from loud machines including aircraft engines, tractor trailer engines, and gunfire.
On May 31, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), for an otologic second opinion evaluation including audiometric testing with Dr. William
Smith, a Board-certified otolaryngologist. In a June 26, 2018 report, Dr. Smith noted that he did
not have hearing data from the beginning of appellant’s federal employment and that appellant’s
noise exposure was significant as to intensity and duration. He diagnosed binaural high frequency
sensorineural hearing loss and tinnitus. Dr. Smith opined that appellant’s hearing loss was
consistent with noise exposure and in excess of that expected by presbycusis. He noted that the
hearing loss was worse in the left ear because appellant fired long weapons right-handed and that
the tinnitus was consistent with the amount of hearing loss present. Dr. Smith explained the
tinnitus was difficult to mask and lead to disturbed sleep and interference with activities of daily
living. He reviewed June 26, 2018 audiometric test results and determined that appellant had 7.5

percent monaural hearing impairment, 4 percent for tinnitus, and 4.5 percent binaural hearing
impairment.
On July 20, 2018 OWCP accepted appellant’s claim for binaural sensorineural hearing
loss.
On July 31, 2018 Dr. Stephen Maturo, a Board-certified otolaryngologist serving as an
OWCP district medical adviser (DMA), reviewed Dr. Smith’s report. He advised that only one
audiogram was provided and there was insufficient documentation to support that the hearing loss
was due to occupational noise exposure. The DMA explained that there was no sound data
demonstrating that appellant’s occupation subjected him to noise levels of a frequency and
intensity that could cause noise-induced hearing loss. He also noted that there was no audiogram
at the time of appellant’s employment, which showed any changes during the course of
employment. The DMA found that appellant had zero hearing impairment due to occupational
exposure and that he had reached maximum medical improvement (MMI) on June 26, 2018.
On August 1, 2018 appellant filed a Form CA-7 claim for a schedule award.
In a February 12, 2019 SOAF, OWCP noted that the claim had been accepted for
“sensorineural hearing loss, binaural.” It also noted that appellant’s noise exposure consisted of
loud tractor-trailer engines, mufflers, and brakes, loading dock equipment, train horn air
compressors, drills, aircraft engines, and firing range gunfire.
On February 12, 2019 OWCP requested clarification from the DMA and provided him with
a May 17, 2017 audiogram. In a February 19, 2019 report, Dr. Maturo reviewed the May 17, 2017
audiogram and explained that on the right side, appellant’s hearing was worse in 2017 than in 2018
in all frequencies. He further explained that on the left side, appellant’s hearing was 5 to 10
decibels worse in 2018 than in 2017 in the higher frequencies. The DMA noted that there were no
hearing tests available from the beginning of appellant’s federal employment and advised that
there was insufficient evidence to support a diagnosis of occupational noise-induced hearing loss.
He opined that “one would not expect hearing in one ear to get better if noise exposure caused
hearing loss.” Additionally, the DMA noted that a 10 decibel change in one ear would not be
expected in only one year of noise exposure.
On April 1, 2019 OWCP declared a conflict in the medical opinions. It found that
Dr. Smith, the second opinion physician, opined that appellant had a 4.5 percent binaural hearing
loss due to occupational noise exposure and recommended hearing aids, while Dr. Maturo, the
DMA, opined that there was insufficient information to conclude that appellant’s hearing loss was
due to occupational noise exposure.
On August 15, 2019 OWCP referred appellant to Dr. Paul Loeffler, a Board-certified
otolaryngologist, to resolve the conflict in the medical opinions. In a September 3, 2019 report,
Dr. Loeffler diagnosed sensorineural hearing loss and tinnitus in both ears. He noted that the
ringing was present all the time, worsened when it was quiet, and that appellant had to have
background noise to go to sleep and “sometimes that does not help.” Dr. Loeffler recommended
hearing protection, yearly audiometric testing, and hearing aids. He noted that appellant indicated
that in 1996 he was exposed to fireworks while on duty and that his federal employment started in
1993.

2

On December 10, 2019 OWCP requested clarification from the impartial medical examiner
and that he complete a Form CA-51. In a September 3, 2019 form report, Dr. Loeffler provided
an impairment rating based on the results of a September 3, 2019 audiological evaluation. He
calculated 20.94 percent binaural hearing impairment and recommended hearing aids.
By decision dated June 29, 2020, OWCP granted a schedule award for 20.94 percent
binaural hearing loss. The period of the award ran for 42 weeks from September 3, 2019 through
June 22, 2020. OWCP indicated that it relied upon the report of Dr. Loeffler, the “referee
examiner.”
The Board finds that the case is not in posture for decision regarding appellant’s entitlement to a
schedule award. OWCP improperly declared a conflict in the medical opinions between its DMA
and the second opinion physician, as neither physician was appellant’s treating physician.1 Absent
a true conflict in medical opinion, Dr. Loeffler’s opinion cannot be afforded determinative weight
as an impartial medical evaluation. The Board thus finds that Dr. Loeffler actually served as an
OWCP referral physician rather than an impartial medical specialist.2
Dr. Loeffler’s report requires clarification. OWCP requested that he comment on the
findings of Dr. Smith and any points of disagreement. This is especially important as Dr. Smith
found four percent impairment for tinnitus, Dr. Loeffler also found that appellant had tinnitus;
however, he did not provide an impairment rating for tinnitus.
The Board finds that OWCP did not properly develop appellant’s schedule award claim
with regard to whether his diagnosed tinnitus warranted an increased impairment rating. As noted
above, the A.M.A., Guides provides that, if tinnitus interferes with activities of daily living, such
as sleep, reading, enjoyment of quiet recreation, and emotional well-being, up to five percent may
be added to a measurable binaural hearing impairment.3
It is well established that proceedings under FECA are not adversarial in nature and OWCP
is not a disinterested arbiter.4 While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence and to see that
justice is done.5 When OWCP undertakes to develop the evidence it has an obligation to seek
clarification from its physician upon receiving a report that did not adequately address the issues
that OWCP sought to develop.6
1

See 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321(b); S.G., 58 ECAB 383, 387 (2007) (a conflict may only exist between
an employee’s physician and a physician designated or approved by OWCP); Federal (FECA) Procedure Manual, Part
2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11a (September 2010).
2

See R.H., Docket No. 17-1477 (issued March 14, 2018) (finding that, due to the lack of a conflict in the medical
evidence at the time of the referral to the putative impartial medical specialist, the physician actually served as an
OWCP referral physician rather than an impartial medical specialist).
3

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

4

Y.D., Docket No. 19-1200 (issued April 6, 2020); Vanessa Young, 56 ECAB 575 (2004).

5

E.S., Docket No. 18-1312 (issued April 3, 2020).

6

S.C., Docket No. 17-1587 (issued January 2, 2019); E.B., Docket No. 17-0795 (issued January 18, 2018).

3

The issue before second opinion physician, Dr. Loeffler was the determination of
permanent functional loss of hearing under the sixth edition A.M.A., Guides. As the presence or
absence of tinnitus can impact the percentage of permanent impairment under the A.M.A., Guides,
there is medical evidence of record from Dr. Smith indicating a diagnosis of tinnitus that was not
referenced or addressed by Dr. Loeffler, the Board finds that the claim was not properly
developed.7
Thus, the Board will remand the case to OWCP to obtain a supplemental report from
Dr. Loeffler for an opinion as to whether appellant has tinnitus and whether it entitles him to a
greater schedule award. Following this and any other development deemed necessary, OWCP
shall issue a de novo schedule award decision.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2020 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this order.
Issued: June 24, 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

7
When OWCP refers a claimant for a second opinion evaluation and the report does not adequately address the
relevant issues, OWCP should secure an appropriate report on the relevant issues. See C.H., Docket No. 19-1315
(issued March 16, 2020); Ayanle A. Hashi, 56 ECAB 234 (2004).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
SUNSET POINT POST OFFICE,
Clearwater, FL, Employer
__________________________________________

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

Docket No. 08-1018
Issued: October 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 21, 2008 appellant filed a timely appeal from a January 29, 2008 decision of
the Office of Workers’ Compensation Programs denying an additional schedule award for left
upper extremity impairment.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than a nine percent impairment of the left upper
extremity, for which he received a schedule award. On appeal, appellant, through his authorized
representative, contends that the Office failed to recognize additional impairment resulting from
January 27, 2007 surgery.

1

Appellant did not appeal a January 14, 2008 schedule award decision regarding the right upper extremity or a
February 22, 2008 loss of wage-earning capacity determination. Therefore, the issues are not before the Board on
the present appeal.

FACTUAL HISTORY
This is appellant’s second appeal before the Board. By order dated February 14, 2006,2
the Board set aside a June 17, 2005 decision denying a schedule award for bilateral upper
extremity impairment. The Board found that the Office failed to consider the March 28, 2005
report of Dr. H. Gerard Siek, an attending Board-certified orthopedic surgeon. The Board
remanded the case to the Office for further development to be followed by an appropriate
decision. The relevant facts are set forth below.
The Office accepted that, on or before April 15, 1999, appellant, then a 59-year-old letter
carrier, sustained synovitis, bursitis, osteoarthritis, a loose body and a SLAP (superior labrum
anterior-posterior) lesion of the left shoulder due to repetitive motion at work. Appellant
underwent left shoulder arthroscopies on June 10 and August 26, 2003 to repair the SLAP lesion,
rotator cuff tears and a glenoid labrum tear.
In a March 28, 2005 report, Dr. Siek found left shoulder flexion limited to 130 degrees,
40 degrees extension, 120 degrees abduction, 30 degrees adduction and 70 degrees external
rotation. Referring to the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides), Dr. Siek noted that,
according to Tables 16-40,3 16-434 and 16-46,5 appellant had a nine percent impairment of the
left upper extremity due to restricted shoulder motion.6
The Office referred the medical record to an Office medical adviser. In a February 23,
2006 report, the Office medical adviser applied Figures 16-40, 16-43 and 16-46 of the A.M.A.,
Guides to Dr. Siek’s findings to arrive at a nine percent impairment of the left upper extremity:
three percent for limitation of forward elevation to 140 degrees; one percent for limitation of
backward elevation to 40 degrees; three percent for abduction restricted to 120 degrees; one
percent for adduction limited to 30 degrees; one percent for internal rotation restricted to 70
degrees. The medical adviser noted that, under a separate claim,7 appellant had been issued a
schedule award for a five percent impairment of the left upper extremity due to carpal tunnel
syndrome. He subtracted the five percent wrist impairment previously awarded from the nine

2

Docket No. 05-1507 (issued February 14, 2006).

3

A.M.A., Guides 476, (5th ed.) Figure 16-40, is entitled “Pie Chart of Upper Extremity Motion Impairments Due
to Lack of Flexion and Extension of Shoulder.”
4

Id. at 477, Figure 16-43, is entitled “Pie Chart of Upper Extremity Motion Impairments Due to Lack of
Abduction and Adduction of Shoulder.”
5

Id. at 479, Figure 16-46, is entitled “Pie Chart of Upper Extremity Impairments Due to Lack of Internal and
External Rotation of Shoulder.”
6

In a March 31, 2005 report, Dr. David P. Kalin, an attending Board-certified family practitioner, observed a loss
of 10 degrees internal rotation of the left shoulder. He opined that appellant had reached maximum medical
improvement.
7

File No. 06-2105516. The case now before the Board was assigned File No. 06-2070769.

2

percent impairment for the shoulder, resulting in an additional four percent impairment of the left
upper extremity.
By decision dated April 6, 2006, the Office granted appellant a schedule award for an
additional four percent impairment to the left arm, for a total of nine percent. The period of the
award ran from March 28 to August 6, 2005.
On January 27, 2007 Dr. Harry Steinman, an attending Board-certified orthopedic
surgeon, performed a repeat subacromial decompression of the left shoulder, with a distal
clavicular resection and debridement of a partial-thickness rotator cuff tear. The Office
authorized the procedure. In April 26, 2007 reports, Dr. Steinman found that appellant had
reached maximum medical improvement. He noted the following ranges of motion: 90 to 115
degrees abduction; 60 degrees external rotation; 70 degrees internal rotation; 145 to 150 degrees
forward flexion.
On April 27, 2007 appellant claimed an additional schedule award. He submitted a
May 25, 2007 assessment from Dr. Steinman. Referring generally to Tables 16-40 through 1643 and Table 16-46 of the A.M.A., Guides, Dr. Steinman opined that appellant had an additional
three percent impairment of the left upper extremity for limited shoulder flexion and an
additional three percent impairment for limited abduction.
The Office referred the medical record to an Office medical adviser to calculate a
schedule award. In an August 8, 2007 report, an Office medical adviser found that appellant was
not entitled to an additional schedule award as the six percent recommended by Dr. Steinman
was less than the total nine percent already awarded for left arm impairment.
By decision dated August 10, 2007, the Office denied appellant’s April 27, 2007 claim
for an additional schedule award as the medical evidence did not establish additional impairment
beyond the nine percent previously awarded.
In an August 17, 2007 letter, appellant requested a telephonic hearing, held
November 15, 2007. During the hearing, appellant asserted his entitlement to an additional
schedule award. He submitted a September 11, 2007 letter from Dr. Steinman who opined that
after the January 26, 2007 left shoulder surgery, appellant had an additional six percent
impairment of the left upper extremity in addition to the nine percent found by Dr. Siek on
April 12, 2005.
The Office referred the medical record to an Office medical adviser for a schedule award
calculation. In a January 10, 2008 report, the Office medical adviser opined that the most recent
range of motion measurements indicated no ratable increase due to restricted shoulder motion.
Appellant was not entitled to an additional schedule award as he had already been granted
schedule awards for a total nine percent impairment of the left arm.
By decision dated and finalized January 29, 2008, an Office hearing representative
affirmed the August 10, 2007 decision denying an additional schedule award for the left upper
extremity. The hearing representative found that the medical evidence did not establish that
appellant had greater than the nine percent impairment of the left upper extremity previously
awarded.
3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act8 provides for
compensation to employees sustaining impairment from loss or loss of use of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a mater which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office as a standard for
evaluation of schedule losses and the Board has concurred in such adoption.9 As of February 1,
2001, schedule awards are calculated according to the fifth edition of the A.M.A., Guides,
published in 2000.10
The standards for evaluation the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.11 Chapter 16
of the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedures for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation, or
loss of strength.12 Multiple impairments of one extremity are present, such as those of the hand,
wrist, elbow and shoulder, are first expressed individually as upper extremity impairments and then
combined to determine the total upper extremity impairment.13 It is well established that in
determining entitlement to a schedule award, preexisting impairment to the scheduled member is
included.14
ANALYSIS
The Office accepted that appellant sustained bursitis, osteoarthritis, synovitis, rotator cuff
tears and glenoid labrum lesions of the left shoulder, requiring two arthroscopies in 2003 and one
in 2007. Under a different claim, the Office issued a schedule award for a five percent left upper
extremity impairment due to carpal tunnel syndrome.
Dr. Siek, an attending Board-certified orthopedic surgeon, opined on March 28, 2005 that
appellant had a nine percent impairment of the left upper extremity due to restricted shoulder
motion. An Office medical adviser concurred with Dr. Siek’s nine percent impairment rating.
8

5 U.S.C. §§ 8101-8193.

9

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

11

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

12

A.M.A. Guides 344-521, (5th ed. 2001) Chapter 16, “The Upper Extremities.”

13

Id. at 438, para. 16.1c, 481, 16.5b. See also Cristeen Falls, 55 ECAB 420 (2004).

14

Peter C. Belkind, 56 ECAB 580 (2005).

4

However, instead of combining the regional impairments for the wrist and shoulder as set forth
in the A.M.A., Guides,15 the medical adviser subtracted the five percent wrist impairment from
the nine percent shoulder impairment. This resulted in the April 6, 2006 schedule award for a
four percent impairment of the left arm.
Dr. Steinman, an attending Board-certified orthopedic surgeon, opined that appellant
sustained a six percent impairment of the left arm due to restricted motion. The Office denied
appellant’s claim for an additional schedule award in an August 10, 2007 decision, again
subtracting the six percent impairment from the nine percent previously awarded instead of
combining the wrist and shoulder impairments. In a September 11, 2007 letter, Dr. Steinman
clarified that appellant sustained a total of 15 percent impairment of the left shoulder due to
restricted motion. The Office medical adviser opined that the additionally decreased ranges of
motion observed by Dr. Steinman did not warrant an additional schedule award beyond the nine
percent previously awarded. It issued its January 29, 2008 decision denying an additional
schedule award.
Appellant had two accepted impairment components affecting his left upper extremity:
carpal tunnel syndrome and restricted left shoulder motion. These are two separate conditions
affecting different joints of the left upper extremity. However, these impairments were not
incorporated in the schedule award for his left upper extremity impairment. The Office erred by
subtracting the impairment ratings rather than combining them. This is contrary to the A.M.A.,
Guides, which provides that multiple impairments of one extremity are first expressed
individually, then combined to determine the total upper extremity impairment.16
The case will be remanded to the Office for further development, including assessments
of impairment due to appellant’s carpal tunnel syndrome and restricted left shoulder motion.
Following this and any other necessary development, the Office shall issue an appropriate
decision in the case.
CONCLUSION
The Board finds that the case is not in posture for a decision.

15

A.M.A., Guides, supra note 13.

16

Id. at 438, para. 16.1c, 481, 16.5b, 481.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated and finalized January 29, 2008 is set aside, and the case remanded
for further development consistent with this opinion.
Issued: October 6, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Covina, CA, Employer
__________________________________________

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

Docket No. 10-1796
Issued: March 23, 2011

Case Submitted on the Record

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

JURISDICTION
On June 24, 2010 appellant, through her attorney, filed a timely appeal from an Office of
Workers’ Compensation Programs’ decision dated February 18, 2010 finding that she abandoned
her request for a hearing.1 Pursuant to the Federal Employees’ Compensation Act2 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit issue of the case.
ISSUE
The issue is whether the Office properly determined that appellant abandoned her request
for a hearing.
On appeal, appellant clarifies each of the attempts she made to ascertain the correct
information for the hearing. She argues that she did not receive adequate notice of her hearing
and did not abandon her hearing.
1

The Board notes that on April 8, 2010 the Office issued a decision granting appellant a schedule award.
Appellant did not appeal this decision to the Board.
2

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 24, 2006 appellant, then a 37-year-old letter carrier, filed an occupational disease
claim alleging that she developed sciatica and lumbar strain as a result of performing repetitive
work duties. The Office accepted her claim for lumbosacral strain and expanded it to include
disc protrusion at L5-S1, L4-5 and L5 radiculopathy. Appellant did not stop work but returned
to a light-duty position.
After appellant began vocational rehabilitation, she was offered a position as part-time
bank teller, four hours a day, with an hourly rate of $11.00 a hour or $220.00 a week. Appellant
accepted the position and returned to work on June 2, 2009.
By decision dated August 26, 2009, the Office found that the position of part-time bank
teller fairly and reasonably represented appellant’s wage-earning capacity.
On September 15, 2009 appellant requested an oral hearing.
The Office, by letter dated December 24, 2009 and addressed to appellant’s current
address of record, advised her that a telephone hearing would be held January 28, 2010 at 1:00
p.m., Eastern Time. It instructed her to call the provided toll free number a few minutes before
the hearing time and enter the pass code to gain access to the conference call.
In an envelope postmarked January 14, 2010 and received by the Office on January 19,
2010, the notice of oral hearing was returned to the Office bearing the notation “return to sender
insufficient address unable to forward.”3
By decision dated February 18, 2010, the Office found that appellant had abandoned her
request for a hearing. It acknowledged that the original notice had been returned to the Office
but found the Office’s telephonic reminder and letter of January 26, 2010 to be sufficient notice.
As appellant did not appear and she did not explain her absence either before or after the
scheduled hearing, it determined the hearing had been abandoned.

3

In a telephone call log dated January 26, 2010, the Office contacted appellant and advised her that the notice of
oral hearing was returned to the Office as undeliverable. The claims examiner read part of the letter to appellant
noting that she was scheduled for a telephone hearing on January 28, 2010 at 1:00 p.m. and that she should call the
toll free number a few minutes before the hearing and when prompted enter the pass code to connect her to the
hearing. The claims examiner noted that a letter would be sent to appellant but that she would not receive it before
January 28, 2010 and to call her if she had questions. On January 26, 2010 the claims examiner confirmed in writing
and reiterated that the letter from the Office’s Branch of Hearings and Review had been returned as undeliverable.
The claims examiner noted enclosing a copy of the returned document. On January 28, 2010 appellant telephoned
the claims examiner and left a message noting that she was unable to access the hearing because “it was east coast
time.” The claims examiner returned the call and advised that the Office’s Branch of Hearings and Review did not
have the correct address for appellant. The claims examiner indicated that she would send appellant a copy of the
letter and suggested that she call the telephone number on the back of the letter and inform the Office’s Branch of
Hearings and Review that she did not receive the notice and request to reschedule the hearing. In a February 17,
2010 Office telephone log, appellant stated that she was unable to reach the Office’s Branch of Hearings and Review
as she left messages and sent a fax but received no response. The claims examiner provided appellant with a
telephone number for the Office’s Branch of Hearings and Review.

2

LEGAL PRECEDENT
Under the Act and its implementing regulations, a claimant who has received a final
adverse decision by the Office is entitled to receive a hearing upon writing to the address
specified in the decision within 30 days of the date of the decision for which a hearing is sought.4
Unless otherwise directed in writing by the claimant, the Office hearing representative will mail
a notice of the time and place of the hearing to the claimant and any representative at least 30
days before the scheduled date.5
The Office has the burden of proving that it mailed a notice of a scheduled hearing to a
claimant.6 Under the mailbox rule, it is presumed, in the absence of evidence to the contrary,
that a notice mailed to an individual in the ordinary course of business was received by that
individual. This presumption arises when it appears from the record that the notice was properly
addressed and duly mailed.7 However, as a rebuttable presumption, receipt will not be assumed
when there is evidence of nondelivery.8
The authority governing the abandonment of hearings rests with the Office’s procedure
manual, which provides that a hearing can be abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not requested a
postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has
failed to provide any notification for such failure within 10 days of the scheduled date of the
hearing. Under these circumstances, the Branch of Hearings and Review will issue a formal
decision finding that the claimant has abandoned her request for a hearing and return the case to
the district Office.9
ANALYSIS
The Board finds that the Office improperly found that appellant abandoned her request
for an oral hearing. The Office’s determination that appellant abandoned her request for hearing
is premised on the basis that she received adequate notice of the scheduled hearing. The
evidence of record does establish that the notice was sent to her address of record; however, the
record reflects that the notice was returned to the Office as undeliverable.
The mailbox rule provides that proper and timely mailing of a document raises a
rebuttable presumption of receipt by the addressee. The Board has applied the mailbox rule to
claimants under the Act and to the Office when it is established that the mailing was in the
4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

5

20 C.F.R. § 10.617(b).

6

See Michelle R. Littlejohn, 42 ECAB 463, 465 (1991).

7

Michelle Lagana, 52 ECAB 187, 189 (2000).

8

M.U., Docket No. 09-526 (issued September 14, 2009).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999). See also G.J., 58 ECAB 651 (2007).

3

ordinary course of the sender’s business practices.10 It serves as a tool for determining in the
face of inconclusive evidence, whether or not receipt has actually been accomplished. It is to
facilitate the fact finder in determining whether receipt of a document has occurred. However, as
a rebuttable presumption, receipt will not be presumed when there is evidence of nondelivery.11
The record reflects that the notice of hearing was returned to the Office as undeliverable.
Although properly addressed to her address of record, the notice was returned. The returned
envelope was received by the Office on January 19, 2010.12
The record reflects that she did not receive the notice of hearing, evidenced by the
returned envelope. In light of this evidence, which evidences nondelivery, the mailbox
presumption does not apply. The Board finds that Office’s notice of hearing was insufficient.
The Office regulations contemplate that a notice of hearing shall be in writing and that it will be
mailed at least 30 days before the scheduled hearing.13 As noted, the December 24, 2009 notice
was not received by appellant.
The verbal notice that was telephonically communicated on January 26, 2010 was not in
writing and was made less than 30 days before the scheduled hearing and therefore is insufficient
notice. The resending of the written notice on January 26, 2010 is also insufficient because it
was mailed less than 30 days before the scheduled January 28, 2010 hearing and admittedly did
not reach appellant prior to the scheduled hearing. The Board finds that the Office failed to give
appellant proper notice of her hearing under 20 C.F.R. § 10.617(b).
CONCLUSION
As the Office failed to provide proper notification to appellant of the hearing scheduled
for January 28, 2010, the case is remanded to the Office for a hearing to be scheduled before an
Office hearing representative with proper notice provided to all parties.

10

Kenneth Harris, 54 ECAB 502, 505 (2003).

11

Supra note 8.

12

On January 26, 2010 the claims examiner verbally informed appellant that she was scheduled for a telephone
hearing on January 28, 2010 at 1:00 p.m. and provided a telephone number and a pass code. The record also shows
that the Office, on the same date, resent the notice of the scheduled January 28, 2010 hearing to her new address of
record.
13

See supra note 4.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 18, 2010 is set aside. The case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: March 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, TRIPLER ARMY
MEDICAL CENTER, Honolulu, HI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1122
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On July 6, 2021 appellant filed a timely appeal from a March 23, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1
The Board notes that, following the March 23, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

1

ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a traumatic injury in the performance of duty on January 3, 2021, as alleged.
FACTUAL HISTORY
On January 4, 2021 appellant, then a 58-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on January 3, 2021 she fell due to lightheadedness and hit the floor head
first, the left side of her body, and both knees while in the performance of duty. She stopped work
on the date of the claimed injury. On the reverse side of the claim form, appellant’s supervisor
acknowledged that appellant was injured in the performance of duty.
In support of her claim, appellant submitted discharge instructions dated January 3, 2021
from Dr. Douglas Waffen, a Board-certified emergency medicine specialist. Dr. Waffen
recounted that appellant had experienced a near fainting episode, without loss of consciousness,
which happened when her blood pressure suddenly dropped and not enough blood flowed to the
brain. He listed the causes of sudden blood pressure drop and related that the exact cause of
appellant’s near fainting was unknown. Dr. Waffen diagnosed multiple contusions to the left
periorbital area as well as to the knees.
OWCP received a memorandum dated January 7, 2021 from appellant’s supervisor, A.T.,
which stated that the incident happened in the hallway and that the surface was level and clear
from any obstacles or hazards.
Appellant submitted a medical report dated January 7, 2021 from Dr. Clayton Everline, a
Board-certified sports medicine specialist who noted that appellant had a trip and fall at work and
had fallen head first, impacting her eye. Dr. Everline diagnosed contusion of the left eye,
instability of the left knee joint, post-traumatic osteoarthritis of the left knee, and somatic
dysfunction of the knee region. He also provided appellant with work restrictions.
Appellant submitted an x-ray dated January 7, 2021 from Dr. Thomas Williams, a Boardcertified diagnostic radiologist who diagnosed bilateral knee osteoarthritis.
In reports dated January 15 and February 2, 2021, Dr. Everline related that appellant had
undergone a full cardiac work up and noted assessments, which included aortic valve insufficiency,
unspecified etiology of cardiac valve disease, as well as left eye contusion, left knee joint
instability and post-traumatic osteoarthritis of the left knee.
In a development letter dated February 11, 2021, OWCP advised appellant that additional
factual and medical evidence was necessary to establish her claim. It explained the type of factual
and medical evidence needed and provided her with a questionnaire. The questionnaire noted that
the cause of appellant’s fall was unclear; therefore, appellant was asked to address the
circumstances that caused her to fall, whether she had a history of fainting spells, a heart condition,
or epileptic seizures, whether there was a special hazard or condition, i.e., slippery floor, which
contributed to her fall, and whether she struck anything on the way down. OWCP afforded her 30
days to submit the necessary evidence.

2

In a medical report dated March 3, 2021, Dr. Everline noted that appellant was seen for a
follow-up appointment. He repeated his prior assessments. In a letter dated March 4, 2021,
Dr. Everline related that appellant fell at work on January 3, 2021 and that he had diagnosed
derangement of left knee, post-traumatic osteoarthritis of left knee, and patellar tendinitis of left
knee. He stated that degenerative joint disease is aggravated by prolonged weight-bearing
activities because of the compressive and shear forces applied over the knee during these activities.
In addition, Dr. Everline attested that the force on the knee joint is increased with lifting as well
as walking on an incline or climbing stairs. He opined that given the patient’s history and the
impact with the hospital floor, the incident either caused or aggravated appellant’s diagnosed
medical condition.
By decision dated March 23, 2021, OWCP denied appellant’s claim finding that the
evidence did not support that the injury occurred. It noted that she had alleged on the CA-1 form
that her fall occurred due to light-headedness; however, she had not responded to the questionnaire,
which had asked appellant for further information regarding her medical history of fainting spells,
heart condition, or seizures, as well as details regarding any special conditions, which may have
contributed to her fall. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 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. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is

3

Id.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

whether the employment incident caused a personal injury and can be established only by medical
evidence.7
It is a well-settled principle of workers’ compensation law that an injury resulting from an
idiopathic fall where a personal, nonoccupational pathology causes an employee to collapse and
to suffer injury upon striking the immediate supporting surface, and there is no intervention or
contribution by any hazard or special condition of employment, is not within coverage of FECA. 8
Such an injury does not arise out of a risk connected with the employment and is, therefore, not
compensable. 9 However, the fact that the cause of a particular fall cannot be ascertained or that
the reason it occurred cannot be explained, does not establish that it was due to an idiopathic
condition.10
This follows from the general rule that an injury occurring while in the performance of
duty is compensable unless the injury is established to be within an exception to such general
rule.11 OWCP has the burden of proof to submit medical evidence showing the existence of a
personal, nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic
in nature.12 If the record does not establish that the particular fall was due to an idiopathic
condition, it must be considered as merely an unexplained fall, one which is distinguishable from
a fall in which it is definitely proven that a physical condition preexisted and caused the fall.13
ANALYSIS
The Board finds appellant has not met her burden of proof to establish a traumatic injury
in the performance of duty on January 3, 2021, as alleged.
Appellant has not provided sufficient detail to establish that a traumatic incident oc curred
in the performance of duty, as alleged.14 On her Form CA-1 she explained that she experienced

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

M.A., Docket No. 19-0341 (issued July 10, 2019); H.B., Docket No. 18-0278 (issued June 20, 2018); Carol A.
Lyles, 57 ECAB 265 (2005).
9

Id.; see also D.T., Docket No. 19-1486 (issued January 17, 2020).

10

H.B., supra note 8; M.M., Docket No. 08-1510 (issued November 25, 2008).

11

P.N., Docket No. 17-1283 (issued April 5, 2018); Dora Ward, 43 ECAB 767 (1992).

12

A.B., Docket No. 17-1689 (issued December 4, 2018); P.P., Docket No. 15-0522 (issued June 1, 2016); see
also Jennifer Atkerson, 55 ECAB 317 (2004).
13

P.N., supra note 11; John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988).

14

See J.W., Docket No. 19-0335 (issued July 2, 2019).

4

light-headedness and fell. OWCP could not determine, based upon appellant’s vague statement,
whether appellant’s fall was idiopathic or otherwise remained unexplained. 15
Appellant was subsequently provided an opportunity to submit evidence to establish how
her alleged injury occurred on January 3, 2021. By development letter dated February 11, 2021,
OWCP requested that she describe the factual circumstances of her injury and provided her with a
factual development questionnaire for completion. Appellant was specifically asked whether she
had any medical conditions, which caused the fall or whether any employing establishment
conditions, such as a wet floor contributed to her fall. She did not respond to the questionnaire
and failed to provide a narrative statement detailing the traumatic incident. The only explanation
appellant provided pertaining to the alleged January 3, 2021 employment incident is a general and
vague statement noted on her Form CA-1. The evidence of record indicates that Dr. Waffen, in
his January 3, 2021 report, assessed that appellant sustained a near fainting episode due to a drop
in blood pressure, and Dr. Everline on January 15, 2021 ordered a cardiac work up, which revealed
aortic valve insufficiency. By failing to describe the employment incident and any employmentrelated circumstances surrounding her alleged injury, appellant has not established that the
traumatic injury occurred in the performance of duty, as alleged. 16 Thus, the Board finds that
appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on January 3, 2021, as alleged.

15

Id.; see also John R. Black, supra note 13; Judy Bryant, supra note 13; Martha G. List, 26 ECAB 200 (1974).

16

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
______________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY,
)
DIRECTORATE OF LOGISTICS,
)
Fort Polk, LA, Employer
)
______________________________________ )
G.M., Appellant

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

Docket No. 06-981
Issued: January 17, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 28, 2006 appellant filed a timely appeal of the December 30, 2005 merit
decision of the Office of Workers’ Compensation Programs, which affirmed a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of
appellant’s claim for a schedule award.
ISSUE
The issue is whether appellant has greater than a 17 percent impairment of the left upper
extremity.
FACTUAL HISTORY
Appellant, a 66-year-old retired mechanic, sustained a left rotator cuff strain and tear
while in the performance of duty on January 4, 2003. Although surgery had been recommended,
appellant decided against it. He filed a claim for a schedule award on June 23, 2004.
Dr. Michael W. Dole, a Board-certified physiatrist, examined appellant on June 7, 2004. He

found a 17 percent impairment of the left upper extremity due to loss of range of motion in the
shoulder. The Office medical adviser reviewed the medical evidence of record and agreed with
Dr. Dole’s finding of 17 percent impairment of the left upper extremity.
By decision dated September 20, 2004, the Office granted a schedule award for a 17
percent impairment of the left upper extremity. The award covered a period of 53.04 weeks from
June 7, 2004 to June 13, 2005. An Office hearing representative subsequently affirmed the
schedule award in a December 30, 2005 decision.1
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.2 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.3 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).4
ANALYSIS
Dr. Dole’s June 7, 2004 examination of appellant’s left shoulder revealed flexion to 80
degrees, 25 degrees of extension, abduction to 90 degrees, 45 degrees of internal rotation and 15
degrees of external rotation.5 Under Figure 16-40, A.M.A., Guides 476, shoulder flexion of 80
degrees represents 7 percent impairment and 25 degrees of shoulder extension represents
2 percent impairment under Figure 16-40. According to Figure 16-46, A.M.A., Guides 479, 45
degrees of internal rotation and 15 degrees of external rotation each represent 2 percent
impairment, for an additional 4 percent impairment. Loss of shoulder abduction is rated under
Figure 16-43, A.M.A., Guides 477, and pursuant to this table appellant’s 90 degrees of abduction
represents a 4 percent impairment of the left upper extremity. The individual impairments for
left shoulder abduction (4 percent), flexion (7 percent), extension (2 percent), internal rotation (2
percent) and external rotation (2 percent) are added for a total left upper extremity impairment of
1

A hearing was held on October 25, 2005 and appellant testified regarding his disagreement with the 17 percent
impairment rating he received. However, he did not submit any additional medical evidence indicating a greater
impairment than previously awarded.
2

The Act provides that, for a total, or 100 percent loss of use of an arm, an employee shall receive 312 weeks of
compensation. 5 U.S.C. § 8107(c)(1).
3

20 C.F.R. § 10.404 (1999).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003); FECA
Bulletin No. 01-05 (issued January 29, 2001).
5

The June 7, 2004 measurements for left shoulder flexion, extension, internal and external rotation are consistent
with the results obtained during appellant’s May 17, 2004 functional capacity evaluation.

2

17 percent for loss of shoulder motion.6 The impairment ratings provided by both Dr. Dole and
the Office medical adviser conform to the A.M.A., Guides (5th ed. 2001) and their respective
findings constitute the weight of the medical evidence.7 Appellant has not submitted any
credible medical evidence indicating that he has greater than a 17 percent impairment of the left
upper extremity.
CONCLUSION
The Board finds that appellant failed to establish that he has greater than a 17 percent
impairment of the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the December 30, 2005 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 17, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6

See Example 16-55, A.M.A., Guides 479.

7

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

3