United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-175
Issued: October 11, 2011

Case Submitted on the Record

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

JURISDICTION
On October 28, 2010 appellant filed a timely appeal from a May 10, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) affirming the termination of her
compensation benefits for her accepted work injury. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits for her accepted injury effective January 16, 2007; and (2) whether
appellant established that she had any continuing disability or residuals relating to her accepted
conditions after January 16, 2007.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This is the second appeal in the present case. In an August 21, 2009 decision, the Board
affirmed a February 5, 2008 OWCP decision, which denied appellant’s request for
reconsideration. Appellant filed a petition for reconsideration and, on March 26, 2010, the Board
granted the petition and vacated the prior decision. The Board found that the new report from
appellant’s treating physician was sufficient to require reopening appellant’s case for further
review of the merits.2 The facts of the case as set forth in the Board’s prior decision are
incorporated herein by reference.
Appellant came under the treatment of Dr. John Tzucker, a Board-certified family
practitioner. On February 18, 2003 Dr. Tzucker diagnosed plantar fasciitis and reflex
sympathetic dystrophy. He noted a history of appellant’s condition and subsequent treatment
and opined that she was totally disabled. On October 8, 2003 Dr. Tzucker treated her for
seizures or pseudo seizures caused by pain, anger and depression related to previous workrelated nerve damage.
On April 5, 2004 OWCP referred appellant to Dr. Alois E. Gibson, a Board-certified
orthopedic surgeon, and to Dr. Larry M. Davis, a Board-certified psychiatrist, for second
opinions. In a April 26, 2004 report, Dr. Gibson reviewed the medical records provided and
examined appellant. He diagnosed subjective complaints not explainable by objective physical
findings in both lower extremities, anxiety resulting in physical complaints, no evidence of reflex
sympathetic dystrophy in either lower extremity and probable narcotic dependency. Dr. Gibson
noted examination of both legs did not reveal signs of reflex sympathetic dystrophy, unusual
color, warmth, coolness, moisture or dryness. Waddell’s signs were positive and palpation of the
extremities and pinprick testing was not possible due to appellant’s protests of discomfort that
were out of proportion to the examination. Dr. Gibson found no objective evidence of continued
aggravation of preexisting right plantar fasciitis or reflex sympathetic dystrophy. He noted that,
based on the physical examination from an orthopedic standpoint, appellant’s lower extremity
difficulties did not prevent her from returning to her previous employment with minimal
restriction on standing and walking distances. Dr. Gibson noted anxiety symptoms and
recommended psychiatric evaluation. He indicated that there was no need for further orthopedic
treatment of the legs.
In a May 6, 2004 report, Dr. Davis diagnosed major depression by history in partial
remission, somatization disorder with marked secondary gain, plantar fasciitis, generally
resolved many years ago, generalized pain and stress mild to moderate. He opined that there was
no direct relationship between appellant’s psychological condition of marked pain and her
original foot injuries in 1987. Dr. Davis noted that she could perform sedentary work after
further psychotherapy. In a supplemental report dated May 14, 2004, he opined that, due to the
2

Docket No. 08-1549 (issued August 21, 2009), petition for recon, granted (issued March 26, 2010). On
September 29, 1989 appellant, then a 33-year-old mark-up clerk, filed an occupational disease claim which OWCP
accepted for aggravation of preexisting plantar fasciitis of the right foot and mild bilateral reflex sympathetic
dystrophy of the legs. It authorized a plantar fasciotomy performed on April 21, 1989 and bilateral decompression
of the tibial tarsal tunnels performed on June 2, 1990. Appellant was placed on the periodic compensation rolls on
March 22, 1996.

2

many stressors and responses that occurred over a long disability, he was not able to conclude
that there was a direct relationship between appellant’s present psychological pain condition and
her original foot condition and treatment from 1987 to 1989.
Appellant submitted a June 8, 2004 report from Dr. Tzucker, who reviewed the report
from Dr. Gibson and disagreed with his findings. Dr. Tzucker found Dr. Gibson’s history of her
injury to be sketchy and his lack of detail regarding her diagnosis of reflex sympathetic
dystrophy to be improper.
On July 19, 2004 OWCP requested a supplemental report from Dr. Davis. In reports
dated August 5 and October 13, 2004, Dr. Davis found that appellant was not totally disabled
from work in view of the complete lack of an organic explanation and lack of depressive
intensity that would prevent her from working from a psychiatric perspective. In a December 29,
2004 report, he reviewed the Minnesota Multiphasic Personality Inventory -- 2, which revealed
that she was not greatly anxious or depressed about her symptoms and demonstrated conversion
disorder or somatic disorder.
On August 13, 2004 OWCP referred appellant to Dr. Arthur Rosen, a Board-certified
neurologist, for a second opinion. In an August 26, 2004 report, Dr. Rosen diagnosed chronic
anxiety syndrome with psychophysiological phenomenon, no evidence of organic disease of the
central nervous system or peripheral nervous system, no evidence of disease of the peripheral
autonomic nervous system and no evidence of reflex sympathetic dystrophy or seizure disorder.
He noted that the neurological examination revealed intact cranial nerves, bilateral
nonphysiological giveaway weakness of appellant’s upper and lower extremities, reflexes were
even and symmetrical bilaterally with no pathology, normal pain, touch, vibration and position
sense, there was no evidence of cerebellar dysfunction or hyperhidrosis, no dystrophic changes
and no temperature changes. Dr. Rosen opined that there was no objective evidence to indicate
that she had reflex sympathetic dystrophy as no there was an absence of temperature changes in
her lower extremities, the absence of hyperhidrosis and anhidrosis in her lower extremities
coupled with her nonphysiological response to any sensory stimulation of her body. He noted
that appellant had no physical condition which would preclude her from returning to her job as a
mark-up clerk but her psychiatric problem might preclude a return to work. Dr. Rosen indicated
that from a physical perspective appellant could perform any type of gainful activity and none
would be precluded by her current neurological evaluation. He recommended psychiatric
treatment.
OWCP found that a conflict of medical opinion existed between Dr. Tzucker, who found
that appellant had residuals of her work-related injuries of reflex sympathetic dystrophy and was
totally disabled and Dr. Rosen, who determined that appellant’s bilateral reflex sympathetic
dystrophy of the legs had resolved and she could return to her preinjury position as a mark-up
clerk without restrictions related.
On March 17, 2006 OWCP referred appellant to a referee physician, Dr. Richard S.
French, a Board-certified neurologist. In an April 18, 2006 report, Dr. French noted reviewing
the record, including the history of her work injury and examining her. Examination revealed an
unusual vertical head tremor which was irregular and dyssynergic and appellant began to cry and
developed jerking movements when tested. Dr. French noted that her motor examination was

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difficult to assess because she had giveaway type weakness but there was no atrophy or
fasciculations. Examination of appellant’s deltoids and biceps revealed giveaway weakness with
dramatic effort displayed in an exaggerated sense. Reflexes were normal and symmetrical.
Scars beneath her medial malleoli from the tarsal surgery were well healed. Appellant’s feet
were warm and her skin and toenails appeared healthy. Dr. French opined that she did not have
reflex sympathetic dystrophy but noted a great deal of obvious psychogenic overlay on the
neurologic examination and she demonstrated a histrionic personality. He advised that no further
diagnostic testing was necessary. Dr. French did not believe that appellant could return to work
as a mark-up clerk due to psychological restrictions and believed that she was disabled due to her
psychiatric problems. He agreed that she had somatization disorder and that she was physically
dependent on narcotic pain medicine.
Appellant submitted a September 6, 2006 report from Dr. Tzucker, who noted that she
was restricted to working no more than 15 minutes an hour. Dr. Tzucker noted that she spent
most of the day in bed. He advised that appellant’s condition was chronic and would not
improve.
On November 13, 2006 OWCP proposed to terminate all benefits finding that
Dr. French’s April 18, 2006 report established no continuing residuals of appellant’s workrelated condition.
In a December 25, 2006 report, Dr. Tzucker disagreed with Dr. French, the referee
physician, as to whether appellant had reflex sympathetic dystrophy. He opined that her
examination revealed differences in skin temperatures, thinning hair and hypersensitivity to
touch in the lower extremities, which were symptoms of reflex sympathetic dystrophy.
Dr. Tzucker concurred that appellant no longer had plantar fasciitis. He opined that she was
totally disabled and could work as a mark-up clerk as it would exacerbate her pain and disrupt
the work environment if she had pseudo seizures.
By compensation order dated January 16, 2007, OWCP terminated appellant’s medical
and compensation benefits effective the same day finding that the medical evidence established
that she had no continuing residuals of her accepted conditions.
On January 14, 2008 appellant requested reconsideration and submitted a January 12,
2008 report from Dr. Tzucker, who noted treating her on January 11, 2008 and found her
symptoms compatible with reflex sympathetic dystrophy specifically noting that she had
continuing pain, hyperesthesia, cold lower legs despite socks, allodynia to the light and to
moderate touch, weakness of gait and decreased leg hair. Dr. Tzucker found no signs of
addiction to pain medicine and advised her mental distress increased over time. He opined that
as appellant’s treating physician he was better able to understand her history and the evolution of
her condition than any OWCP referral physicians who only saw her briefly.
In a February 5, 2008 decision, OWCP denied appellant’s reconsideration request on the
grounds that her letter neither raised substantive legal questions nor included new and relevant
evidence and was therefore insufficient to warrant review of the prior decision. Following the

4

Board’s remand of the case,3 it in a May 10, 2010 decision, denied modification of the
January 16, 2007 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.4 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.5 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.6
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for aggravation of preexisting plantar fasciitis of the
right foot and mild bilateral reflex sympathetic dystrophy of the legs. It reviewed the medical
evidence and determined that a conflict in medical opinion existed between her attending
physician, Dr. Tzucker, a Board-certified family practitioner, who indicated that she still had
residuals of bilateral reflex sympathetic dystrophy of the legs and was totally disabled and could
not return to her preinjury position and Dr. Rosen, an OWCP referral physician, who determined
that her bilateral reflex sympathetic dystrophy of the legs had resolved and that her continuing
symptoms were attributable to a nonwork-related psychiatric condition.7 Consequently, OWCP
referred appellant to Dr. French to resolve the conflict.
The Board finds that, under the circumstances of this case, the opinion of Dr. French is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant’s mild bilateral reflex sympathetic dystrophy of
the legs has ceased. Where there exists a conflict of medical opinion and the case is referred to
an impartial specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, is entitled to special
weight.8

3

See id.

4

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

5

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

6

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

7

The Board notes that neither Dr. Tzucker nor any of OWCP’s referral physicians supported that the aggravation
of preexisting plantar fasciitis of the right foot continues. In his December 25, 2006 report, Dr. Tzucker advised that
that appellant no longer had plantar fasciitis and that it had not been an active diagnosis for the many years in which
he had treated her. Thus, the weight of the medical evidence supports that this condition has resolved.
8

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

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On April 18, 2006 Dr. French reviewed appellant’s history, reported findings and opined
that she did not have reflex sympathetic dystrophy but noted a great deal of obvious psychogenic
overlay on the neurologic examination and she demonstrated a histrionic personality. He noted
that she had giveaway type weakness but there was no atrophy or fasciculations. Dr. French
stated that, on examination of the deltoids and biceps, appellant demonstrated giveaway
weakness with dramatic effort displayed in an exaggerated sense. However, he noted that
reflexes were normal and symmetrical and sensory examination revealed good vibratory
sensation in her toes with pinprick was normal. Dr. French found that the condition of her skin
to be normal. He advised that, while appellant could not return to work as a mark-up clerk, this
was because she was disabled due to her psychiatric problems. The Board notes that OWCP has
not accepted any psychiatric condition as being employment related. Dr. French found no basis
on which to attribute any continuing condition to appellant’s employment.
In a September 6, 2006 report, Dr. Tzucker addressed appellant’s disability status. In a
December 25, 2006 report, he disagreed with Dr. French as to whether appellant had reflex
sympathetic dystrophy and cited symptoms which were consistent with reflex sympathetic
dystrophy. Dr. Tzucker also opined that she no longer had plantar fasciitis. He opined that
appellant was totally disabled and could not return to work because it would exacerbate her pain
and disrupt the work environment if she had pseudo seizures. However, Dr. Tzucker did not
specifically address how any continuing condition or medical restrictions and disability were
causally related to the accepted employment injuries. Additionally, he was on one side of the
conflict that Dr. French resolved and this report is insufficient to overcome that of Dr. French or
to create a new medical conflict.9
The Board finds that Dr. French had full knowledge of the relevant facts and evaluated
the course of appellant’s condition. At the time benefits were terminated he clearly opined that
she had absolutely no work-related reason for disability. Dr. French’s opinion as set forth in his
report of April 18, 2006 is found to be probative evidence and reliable. The Board finds that his
opinion constitutes the weight of the medical evidence and is sufficient to justify OWCP’s
termination of benefits for the accepted condition of mild bilateral reflex sympathetic dystrophy
of the legs has ceased. The weight of the medical evidence also supports that the accepted
condition of aggravation of preexisting plantar fasciitis of the right foot has resolved.10
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had continuing disability causally related to her
accepted employment injury.11 To establish causal relationship between the claimed disability

9

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Tzucker’s report did not contain new rationale on causal
relationship upon which a new conflict might be based.
10

See supra note 7.

11

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

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and the employment injury, appellant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.12
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she has any continuing residuals of
her work-related aggravation of preexisting plantar fasciitis of the right foot and mild bilateral
reflex sympathetic dystrophy of the legs on or after January 16, 2007.
After the termination of benefits on January 16, 2007 appellant submitted a January 12,
2008 report from Dr. Tzucker who treated her on January 11, 2008 and found her symptoms of
continuing pain, hyperesthesia, cold lower legs despite socks, allodynia to the light and to
moderate touch, weakness of gait and decreased leg hair compatible with reflex sympathetic
dystrophy. Dr. Tzucker found no signs of addiction to pain medicine and advised her mental
distress increased over time. He believed that he was better able to understand appellant’s
history and the evolution of her condition than OWCP referral physicians who only saw her
briefly. On appeal, appellant’s counsel asserts that this report establishes continued disability
from her employment injury. However, Dr. Tzucker provides only a conclusory statement on
causal relationship without providing medical reasoning or rationale to support his opinion. The
Board has found that vague and unrationalized medical opinions on causal relationship have little
probative value.13 Additionally, as noted above, Dr. Tzucker’s reports do not otherwise provide
new medical rationale sufficient to establish that any continuing condition or disability was
causally related to the work conditions. He was on one side of the conflict that Dr. French
resolved and this report is insufficient to overcome that of Dr. French or to create a new medical
conflict.14
None of the reports submitted by appellant after the termination of benefits included a
rationalized opinion regarding the causal relationship between her current condition and her
accepted work-related conditions. Consequently, appellant did not establish that he had any
employment-related condition or disability after January 16, 2007.
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 OWCP has met its burden of proof to terminate benefits effective
January 16, 2007 and that appellant failed to establish that she had any continuing disability due
to her accepted condition after January 16, 2007.

12

Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

13

See Theron J. Barham, 34 ECAB 1070 (1983).

14

See Michael Hughes, supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 10, 2010 is affirmed.
Issued: October 11, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 11-603
Issued: September 27, 2011

Case Submitted on the Record

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

JURISDICTION
On January 13, 2011 appellant filed a timely appeal from a November 2, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) finding that he received an
overpayment of compensation in the amount of $7,615.23 during the period October 3, 2004
through December 20, 2008 and that he was at fault in the creation of the overpayment. Pursuant
to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the overpayment issue.
ISSUE
The issue is whether OWCP properly issued the November 2, 2010 overpayment
decision.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case was previously before the Board. By decision dated June 11, 2010, the Board
affirmed OWCP’s March 16, 2009 determination that an overpayment for optional life insurance
premiums in the amount of $1,309.00 was created during the period October 3, 2004 through
December 20, 2008. It set aside OWCP’s determination that appellant received an overpayment
of compensation during that period based on an underwithholding of health insurance
premiums.2 Appellant asserted that his carrier cancelled his health benefit coverage on
November 1, 2005 and that he was covered by this wife’s health insurance plan as of that date.
The Board found there was insufficient evidence to determine whether the employer transferred
coverage as requested by OWCP or that appellant properly followed Office of Personnel
Management (OPM) procedures to cancel his health insurance enrollment before
December 20, 2008. The Board directed OWCP to obtain relevant evidence from the employing
establishment and OPM documenting when appellant was covered by health insurance and
whether he ever elected to cancel his enrollment through OPM.3 The facts of the case as set
forth in the Board’s prior decision are incorporated herein by reference.
Following the Board’s June 11, 2010 decision, OWCP sent letters dated September 16,
2010 to the employing establishment and OPM. It requested that the employer and OPM provide
documentation regarding whether appellant had health insurance coverage from October 3, 2004
through December 20, 2008 and whether he elected to cancel his enrollment at anytime during
that period. In a September 17, 2010 telephone call, OWCP asked OPM to provide information
regarding whether appellant requested a waiver of health benefits coverage. On September 23,
2010 it asked appellant to document any coverage that he had under his wife’s health insurance
plan from October 3, 2004 through December 20, 2008.
In an October 4, 2010 letter, appellant stated that he enclosed documentation for coverage
under his wife’s plan during the period November 1, 2002 through April 1, 2009. In an attached
October 4, 2010 letter, Ron Dardis, a senior health plan representative, Kaiser Health Plan,
indicated that appellant was a member of the Kaiser Health Plan from November 1, 2002 through
April 1, 2009. Appellant was covered under Napa County group number 32813 from
November 1, 2002 through January 1, 2006 and under PERS group number 3 from January 1,
2006 through April 1, 2009. He also provided correspondence from himself to OPM and from
OPM regarding his inquiries regarding retirement and annuities from March 26, 2007 through
February 18, 2009. The documents provided did not indicate whether appellant attempted to or
had canceled his enrollment with OPM under the Federal Employees’ Health Benefits (FEHB)
Plan.
By decision dated November 2, 2010, OWCP found that appellant received a $7,615.23
overpayment of compensation because premiums for health and optional life insurance were not
deducted from his compensation from October 3, 2004 through December 21, 2008. It reissued
its previous decision of March 16, 2009 and also noted the new evidence provided by appellant.
2

Docket No. 09-1554 (issued June 11, 2010).

3

In light of its disposition on the amount of overpayment, the Board found the issues regarding fault and recovery
were premature.

2

OWCP found that the evidence from appellant was insufficient to show that he had no health
insurance coverage during the period at issue.4 It incorporated its preliminary determination that
appellant was at fault in creating the overpayment as he accepted payments he knew or
reasonably should have known were for incorrect amounts. OWCP directed recovery of the
overpayment in the manner described on an attached EN2223 enclosure. No EN2223
accompanied the decision.
LEGAL PRECEDENT
Under section 8129 of FECA and the implementing regulations, an overpayment must be
recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.5
Section 10.431 of the implementing regulations provide that, before seeking to recover an
overpayment or adjust benefits, OWCP will advise the individual in writing that the overpayment
exists and the amount of the overpayment.6 The written notification must also include a
preliminary finding regarding whether the individual was at fault in the creation of the
overpayment.7 Additionally, OWCP is obliged to advise the individual of his or her right to
inspect and copy the government records relating to the overpayment.8 Lastly, the preliminary
notice must inform the individual of his or her right to challenge the fact or amount of the
overpayment, the right to contest the preliminary finding of fault in the creation of the
overpayment, if applicable, and the right to request a waiver of recovery of the overpayment.9
The recipient of the alleged overpayment may present evidence in response to OWCP’s
preliminary notice either in writing or at a prerecoupment hearing.10 The evidence must be
presented or the hearing requested within 30 days of the date of the written notice of
overpayment.11 Failure to request the hearing within this 30-day time period shall constitute
waiver of that right.12

4

OWCP stated that, in response to its September 16, 2010 letter and September 17, 2010 telephone call, OPM
provided several documents dated from March 26, 2007 to February 18, 2009 which did not indicate whether
appellant canceled his health benefits enrollment. The Board notes that these documents appear to have been
provided by appellant.
5

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

6

20 C.F.R. § 10.431(a).

7

Id. at § 10.431(b).

8

Id. at § 10.431(c).

9

Id. at § 10.431(d).

10

Id. at § 10.432.

11

Id.

12

Id.

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OWCP procedures provide that, once an overpayment is identified and calculated,
OWCP is responsible for determining whether the claimant was with fault or without fault,
issuing a preliminary finding, and unless a hearing is requested, OWCP is responsible for issuing
a final decision.13 These procedures note that, if the claimant is determined to be with fault,
Form CA-2201 (preliminary finding notice) must be released within 30 days of the date the
overpayment is identified. Both the reason that the overpayment occurred and the reason for the
finding of fault must be clearly stated. Form CA-2201 informs the claimant of the right to
submit evidence and the right to a prerecoupment hearing on the issues of (a) fact and amount of
overpayment; (b) fault and (c) waiver. Along with Form CA-2201, OWCP should provide a
clearly written statement explaining how the overpayment was calculated.14
ANALYSIS
The Board previously affirmed that appellant received a $1,209.00 overpayment for life
insurance premiums during the period October 3, 2004 through December 20, 2008. However, it
otherwise set aside OWCP’s overpayment, fault and recovery findings noting that further
evidentiary development was needed with regard to whether appellant received an overpayment
regarding healthy insurance premiums. The Board directed OWCP to obtain relevant evidence
from the employer and OPM documenting whether appellant canceled his health insurance
enrollment through OPM. Although OWCP requested such documentation from OPM and the
employing establishment, it received no responsive evidence from the employing establishment
or OPM before it issued its November 2, 2010 final overpayment decision. As such the Board is
unable to determine if OWCP’s calculations were correct.15 OWCP’s decision offered no
explanation regarding why it did not obtain the documentation directed in the Board’s June 11,
2010 decision. The Board has held that it has final authority to determine questions of law and
its determinations are binding upon OWCP.16 The Board finds that OWCP did not take the
action directed by the Board or offer any explanation regarding why it was unable to further
develop the evidence as directed by the Board.17
The Board also finds that OWCP failed to follow its procedures in issuing the
November 2, 2010 overpayment decision. OWCP’s regulations provide that before seeking to
recover an overpayment or adjust benefits, it will advise the individual in writing that the
overpayment exists and the amount of overpayment.18 It must inform the individual of his or her
right to challenge the fact or amount of the overpayment, the right to contest the preliminary
finding of fault in the creation of the overpayment and the right to request a waiver of recovery
13

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4
(May 2004).
14

Id. at Chapter 2.600.4(a)(1) (May 2004).

15

G.K., Docket No. 08-1620 (issued July 2, 2009).

16

See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84, 85 (1949).

17

See Frank W. White, 42 ECAB 693 (1991) (Board’s order in a prior appeal imposed an obligation on the
Director to take particular actions as directed).
18

20 C.F.R. § 10.431(a).

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of the overpayment.19 OWCP’s procedure manual further provides that a preliminary finding of
overpayment must be provided within 30 days and must clearly identify the reason that the
overpayment occurred and the basis for any fault finding.20 In this case, OWCP never mailed a
new preliminary decision to appellant advising him of its findings following the Board’s prior
decision remanding the case and it did not provide him with the right to challenge the amount of
overpayment or its finding of fault in the creation of the overpayment, thereby infringing upon
his procedural rights under its own regulations.21 The Board has previously determined that
failure to inform him in writing of his or her rights is reversible error.22 Therefore OWCP did
not provide appellant due process and improperly issued the November 2, 2010 overpayment
decision.23
Consequently, the Board must set aside the November 2, 2010 decision and remand the
case to OWCP for it to conduct appropriate further development of the evidence as contemplated
in the Board’s June 11, 2010 decision. Following this and such other development as deemed
appropriate, OWCP shall issue a preliminary determination regarding any overpayment, pursuant
to its procedures, prior to making any final overpayment determination.
CONCLUSION
The Board finds that OWCP improperly issued its November 2, 2010 decision. The case
is remanded for further action consistent with this decision.

19

Id. at § 10.431(d).

20

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a)(1) (May 2004).
21

Id. at §§ 10.431, 10.432.

22

F.C., 59 ECAB 666 (2008).

23

See K.G., Docket No. 08-2135 (issued April 16, 2009) (the Board, in a prior appeal, set aside an overpayment
decision and remanded the case for further development regarding whether the overpayment occurred, after which
OWCP issued a final overpayment decision without issuing a new preliminary finding; the Board found that OWCP
erred in not issuing a new preliminary finding and that the final overpayment decision was improperly issued).

5

ORDER
IT IS HEREBY ORDERED THAT the November 2, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision.
Issued: September 27, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
TENNESSEE VALLEY AUTHORITY,
SHAWNEE POWER PLANT,
West Paducah, KY, Employer
__________________________________________

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

Docket No. 15-1813
Issued: April 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 1, 2015 appellant filed a timely appeal of a May 28, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion when it denied appellant’s request for
hearing aids relative to his accepted hearing loss condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal.2 In an October 21, 2004
decision, the Board affirmed a February 12, 2004 OWCP decision which found that appellant’s
request for reconsideration was untimely filed and failed to establish clear evidence of error in
OWCP’s April 4, 2001 decision. The facts and circumstances set forth in the prior appeal are
incorporated herein by reference. The relevant facts include the following.
In an April 4, 2001 decision, OWCP accepted appellant’s claim for hearing loss due to
his employment-related hearing exposure. However, it determined that because his hearing loss
was not severe enough to be ratable he was not entitled to schedule award compensation for
hearing loss. Appellant was advised that his case was open for medical benefits and that he
could contact OWCP if he was interested in obtaining further information regarding hearing aids.
More specifically, the decision found that in the opinion of Dr. Shawn C. Jones, a second opinion
Board-certified otolaryngologist, appellant would benefit from hearing aids and therefore the
claim was open for medical benefits and if he needed a new set of hearing aids they continued to
be authorized.
Following the Board’s October 21, 2004 decision, the claim was dormant until 2011. On
June 14, 2011 appellant telephoned OWCP regarding obtaining his authorized hearing aids. In a
June 16, 2011 telephone memorandum, OWCP informed appellant that he remained eligible to
request hearing aids. Appellant renewed his request for hearing aids in an undated letter received
by OWCP on June 16, 2011.
On August 4, 2011 OWCP asked its medical adviser to address whether the requested
hearing aids were medically necessary. In an August 8, 2011 report, the OWCP medical adviser
noted that, while a trial of hearing aids was previously authorized, there was no indication that
the hearing aids “were actually deemed necessary, desired or authorized at that time.” He noted
that, as hearing loss does not worsen upon removal from noise and because appellant retired on
May 2, 1999, any worsening of his hearing loss and need for hearing aids after May 1999 was
not work related.3
By decision dated August 9, 2011, OWCP denied appellant’s request to obtain hearing
aids. It found that any worsening of his hearing and his need for hearing aids were not work
related. Appellant requested reconsideration on several occasions and these requests were
denied by OWCP in decisions dated March 12, November 1, and September 18, 2013,4 and
April 15, 2014.5 He again requested reconsideration on August 25, 2014. By decision dated
2

Docket No. 04-1784 (issued October 21, 2004).

3

The medical adviser later reiterated this opinion in a March 8, 2012 report.

4

In a September 16, 2013 report, a different OWCP medical adviser noted that appellant retired in May 1999 and
that his hearing loss was found to be not ratable in 2001. He concluded that, as noise-induced hearing loss did not
progress upon removal from noise, any later hearing loss was not due to work factors and hearing aids should be
denied. This medical adviser reiterated his conclusion on February 13, 2014. He reiterated it again on September 9,
2014, asserting that because appellant’s hearing loss was not ratable, he was not eligible for hearing aids.
5

In decisions dated July 2 and August 8, 2014, OWCP refused to reopen appellant’s case on the merits.

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November 21, 2014, OWCP denied modification of the prior decisions denying his request for
hearing aids. It found that the current medical evidence did not establish a worsening of his
hearing, which now required hearing aids, which was related to the work-related noise exposure.
On January 15, 2015 appellant requested reconsideration and submitted additional
evidence. He argued that his claim was previously approved for hearing aids as his need was
work related. Appellant related that he had suffered tremendously and spent numerous hours and
time attempting to receive the hearing aids which were authorized by OWCP and that they later
went back on the recommendation. Furthermore, he argued that the prior OWCP medical
advisers did not correctly calculate his percentage of hearing loss. Appellant also argued that he
had more than 30 years of noise exposure and regardless of the fact that not being exposed to
continuing noise after leaving the employing establishment he still had work-related, noiseinduced hearing loss and was previously authorized to obtain hearing aids for his work-related
hearing loss. The additional evidence also included e-mail correspondence, copies of previously
considered evidence, hearing loss information sheets, and a copy of a November 20, 2014 Board
decision regarding whether appellant had established an employment-related hearing loss.
On May 21, 2015 OWCP requested that a medical adviser revisit the issue of hearing aids
and explain his decision in detail.
In a report dated May 27, 2015, OWCP’s medical adviser6 noted that on February 28,
2001 a previous OWCP medical adviser, diagnosed bilateral sensorineural hearing loss
consequential to noise exposure, but found that the hearing loss was not severe enough to be
ratable. He further opined that it was “the practice of this [a]gency to not approve the use of
hearing aids for hearing loss that is not ratable.”
By decision dated May 28, 2015, OWCP denied modification of its November 21, 2014
decision. In support of its finding, it noted that its medical adviser indicated that it was “the
practice” of OWCP to not approve “hearing aids for hearing loss that is not ratable.”
LEGAL PRECEDENT
Following medical evaluation of a claim, if a hearing loss is determined to be not ratable
for schedule award purposes, other benefits such as hearing aids may still be payable if any
employment-related hearing loss exists.
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability, or aid in lessening the amount of monthly compensation.7
OWCP must exercise discretion in determining whether the particular service, appliance, or

6

This is the same medical adviser who authored the September 16, 2013, February 13 and September 9, 2014
reports. See supra note 4.
7

5 U.S.C. § 8103. Thomas W. Stevens, 50 ECAB 288 (1999).

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supply is likely to affect the purposes specified in FECA. The only limitation on OWCP’s
authority is that of reasonableness.8
ANALYSIS
The Board finds that OWCP abused its discretion in denying appellant’s request for
hearing aids.
The Board has held that, following medical evaluation of a claim, if the hearing loss is
determined to be not ratable for schedule award purposes, other benefits such as hearing aids
may still be provided if any causally-related hearing loss exists.9 In this case, the record supports
that OWCP accepted appellant’s claim for hearing loss due to his employment-related hearing
exposure. While appellant’s hearing loss was not severe enough to be considered ratable,
appellant was advised that his case was open for medical benefits and consideration of hearing
aids. Based upon the well-reasoned medical opinion of a second opinion examining physician,
Dr. Jones, in its April 4, 2001 decision OWCP authorized appellant to obtain hearing aids. The
Board ultimately affirmed the findings of the April 4, 2001 decision. Although appellant
thereafter waited to obtain hearing aids, he is not precluded from requesting such devices from
OWCP who previously notified him that they were authorized.
Following appellant’s renewed request for the authorized hearing aids, OWCP’s medical
adviser recommended that OWCP not authorize hearing aids because, while a trial of hearing
aids was previously authorized, there is no indication that the hearing aids “were actually
deemed necessary, desired or authorized.” However, the medical adviser is incorrect because
within the aforementioned April 4, 2001 decision OWCP did expressly authorize hearing aids for
appellant. The Board previously reviewed and affirmed the February 12, 2004 decision which
found that OWCP had authorized hearing aids in this case. Thus, as to this matter, the
authorization for hearing aids is res judicata.10 OWCP’s medical adviser also determined that
appellant’s authorization for hearing aids be denied because, he noted, it was OWCP’s practice
to not approve hearing aids for hearing loss that was not ratable. However, as previously cited, if
a hearing loss is determined to be not ratable for schedule award purposes, other benefits such as
hearing aids may still be payable if any employment-related hearing loss exists.11 The medical
adviser’s opinion as to OWCP claims practices is afforded no weight. As OWCP previously
authorized hearing aids for appellant’s occupational hearing loss, it acted unreasonably in
denying hearing aids based only upon the statements and assertions of the medical adviser, made
approximately ten years later, which are incorrect.

8

Daniel J. Perea, 42 ECAB 214 (1990); see also D.M., Docket No. 15-0814 (issued July 16, 2015).

9

See Raymond VanNett, 44 ECAB 480 (1993).

10

See Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

11

Supra note 9.

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The Board therefore finds that OWCP abused its discretion in denying appellant’s request
for hearing aids. OWCP shall furnish hearing aids to appellant based upon its prior authorization
as outlined in its April 4, 2001 office memorandum.
The Board does not address as an issue whether appellant has proven an increased
schedule award. While appellant has made a general argument for an increased schedule award,
the argument was limited to the basis on which he asserted the right to obtain hearing aids.
Appellant may request an increased schedule award, at any time, based on evidence of a new
exposure or medical evidence showing progression of an employment-related condition resulting
in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP abused its discretion in denying appellant’s request for
hearing aids.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2015 decision of the Office of
Workers’ Compensation Programs is reversed. OWCP shall furnish hearing aids to appellant in
accordance with this decision.
Issued: April 18, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
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__________________________________________ )
M.H., Appellant

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

Docket No. 14-1570
Issued: December 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 2, 2014 appellant filed a timely appeal from a January 9, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her occupational disease
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
hearing loss in the performance of duty.
FACTUAL HISTORY
This case was previously before the Board. By decision dated September 5, 2012,2 the
Board found that OWCP failed to properly develop the claim as it did not secure adequate
1

5 U.S.C. § 8101 et seq.

2

Docket No. 12-733 (issued September 5, 2012).

workplace evidence regarding appellant’s duration and levels of exposure to hazardous noise
from the employing establishment. The Board further found that Dr. Gregg S. Govett, a Boardcertified otolaryngologist, the second opinion physician, was not provided with an accurate and
complete statement of accepted facts (SOAF) as the factual evidence was incomplete as to
specific levels and duration of noise exposure during appellant’s federal employment. The case
was remanded for OWCP to request that the employing establishment submit additional
information about appellant’s noise level exposure, including copies of noise surveys, and
specific decibel levels for each work location. OWCP was instructed to refer the case record and
amended SOAF to Dr. Govett for clarification on his opinion. The findings of fact as set forth in
the prior decision are hereby incorporated by reference.
By letters dated September 7, October 10, 2012 and February 4, 2013, OWCP requested
that the employing establishment provide copies of noise surveys and specific decibel levels for
each of appellant’s work areas. Additional audiograms and hearing conservation data was
submitted dated June 25, 1969 to March 7, 2000.
In support of her claim, appellant submitted occupational noise exposure charts and a
description of the various positions she held when working at the employing establishment,
which detailed the noise to which she was exposed.
In a September 11, 2013 OWCP memorandum, the senior claims examiner noted that
several attempts had been made to obtain noise surveys and decibel levels from the employing
establishment to no avail. The SOAF was amended based on the evidence in the file.
The October 7, 2013 amended SOAF detailed the various positions appellant held while
working for the employing establishment from December 1969 to January 1, 2011 when she
retired. Appellant worked as a trainee, electroplater, testing equipment operator, instrument
mechanic, electronics mechanic, and pneudraulic systems mechanic. The work history reflected
that she worked around machinery with moving parts and objects. Appellant was exposed to
noise from plating vats machines, rectifiers, shop noises, mechanical and electrical control
systems, air craft engines, and fuel controls. She participated in the hearing conservation
program and wore ear protection. Appellant retired on January 1, 2011.
OWCP referred appellant, the amended SOAF and case file to Dr. Govett, a Boardcertified otolaryngologist, for another second opinion evaluation on November 19, 2013.
A November 19, 2013 audiogram revealed the following decibel (dB) losses at 500,
1,000, 2,000, and 3,000, hertz: 50, 45, 65, and 70 for the right ear and 70, 68, 80, and 80 for the
left ear. Speech discrimination thresholds were 20 dB bilaterally and the auditory discrimination
score was 96 percent for the right ear and 92 percent for the left ear. Dr. Govett reported that
appellant’s November 19, 2013 audiogram was unreliable. He opined that she did not have
organic hearing loss as there were discrepancies between the pure-tone audiometry (PTA)
measurements and the speech reception threshold (SRT). Dr. Govett answered yes when asked if
the workplace exposure as described was sufficient as to intensity and duration to have caused
the hearing loss in question. However, he opined that the sensorineural hearing loss was not due
to appellant’s workplace noise exposure because of the unreliable audiogram. Dr. Govett
recommended auditory brainstem response (ABR) testing. He concluded that, in accordance

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with the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment, appellant had 73.13 percent monaural hearing loss for the left ear and
48.25 percent monaural hearing loss for the right ear with binaural hearing loss ratable at 52.81
percent.
On December 26, 2013 OWCP referred the case file along with Dr. Govett’s report to a
district medical adviser (DMA) to determine the extent of appellant’s permanent partial
impairment and date of maximum medical improvement.
In a December 30, 2013 report, the DMA reported that Dr. Govett considered the
November 19, 2013 PTA as unreliable because of a significant difference between the pure tone
measurements and speech threshold. He further noted that Dr. Govett did not consider
appellant’s possible hearing loss as job related. The DMA stated that he was unable to determine
a probative hearing loss schedule award due to the invalid PTA.
By decision dated January 9, 2014, OWCP denied appellant’s hearing loss claim on the
grounds that the medical evidence did not support that her hearing loss was causally related to
workplace noise exposure.
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
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.5 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.6
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;7 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

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

5

Stanley K. Takahaski, 35 ECAB 1065 (1984).

6

See John W. Butler, 39 ECAB 852, 858 (1988).

7

Michael R. Shaffer, 55 ECAB 386 (2004).

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presence or occurrence of the disease or condition;8 and (3) medical evidence establishing 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.9
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable certainty and must be supported
by medial rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the employee.10
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish his or her claim, OWCP also has a
responsibility in the development of the evidence.11
ANALYSIS
The issue is whether appellant established that she sustained employment-related hearing
loss due to noise exposure during her federal employment. The Board finds that this case is not
in posture for a decision because the second opinion physician did not resolve the issues related
to the cause and extent of her hearing loss.
On remand, OWCP properly referred appellant and an amended SOAF facts to
Dr. Govett for a second opinion evaluation.12
The Board finds, however, that Dr. Govett’s report is not sufficient on the issues of causal
relationship and degree of hearing loss. Dr. Govett reported that appellant’s November 19, 2013
audiogram was unreliable because there were discrepancies between the PTA and SRT
measurements. While he answered “yes” when asked if the workplace exposure was sufficient
as to intensity and duration to have caused the loss in question, he opined that the sensorineural
hearing loss was not due to appellant’s workplace noise exposure because of the unreliable
audiogram. Dr. Govett’s opinion regarding the cause of her hearing loss is equivocal in nature
8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

Beverly A. Spencer, 55 ECAB 501 (2004).

10

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

11

See Claudia A. Dixon, 47 ECAB 168 (1995).

12

The Board notes that the employing establishment did not respond to OWCP’s requests to obtain noise surveys
and specific decibel levels for each of appellant’s work areas. The record establishes that appellant worked around
machinery with moving parts and objects and was exposed to occupational noise.
OWCP procedure manual provides that it is generally accepted that hearing loss may result from prolonged
exposure to noise levels above 85 decibels. Acoustic trauma may, however, result from levels below 85 decibels if
exposure is sufficiently prolonged. OWCP, therefore, does not request the claimant show exposure to injurious
noise in excess of 85 decibels as a condition to approval of the claim. Federal (FECA) Procedure Manual, Part 3 -Medical, Requirements for Medical Reports, Chapter 3.600.8(a) (October 1990).

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and, thus, of little probative value.13 He failed to explain why the established occupational noise
exposure apparently had no effect on appellant’s hearing.14
The Board also finds that Dr. Govett did not provide an accurate assessment of
appellant’s hearing impairment.15 Dr. Govett’s brief responses as contained on the outline for
otologic evaluation do not adequately set fourth his reasons for concluding that the
November 19, 2013 audiogram was unreliable due to discrepancies between the PTA and SRT
measurements. Further, he recommended ABR testing.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.16 Once
OWCP undertakes development of the record, it must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case.17
The Board finds that this case is not in posture for a decision as Dr. Govett did not
adequately address the issue of causation. On remand, OWCP should refer appellant to an
appropriate second opinion physician for ABR and audiometric testing as recommended and an
opinion on causal relationship. The Board also notes that OWCP has not received requested
noise surveys from the employing establishment to establish exposure to specific decibels of
noise. On remand, OWCP should attempt to obtain this information pursuant to Chapter
2.800.7(b)(4) June 2011 of the Federal (FECA) Procedure Manual. Following this and such
further development as OWCP deems necessary, an appropriate decision should be issued.

13

D.F., Docket No. 09-1080 (issued December 7, 2009); Michael R. Shaffer, 55 ECAB 386 (2004).

14

M.H., Docket No. 120733 (issued September 5, 2012).

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The audiological evaluation and the otological examination are to be performed by different individuals as a
method of evaluating the reliability of the findings through independent observations. If possible, the two
consultations should occur on the same day. The usual information sent to consultants should be forwarded to both
the audiologist and otolaryngologist. The audiological testing is to be performed by persons possessing certification
in audiology from ASHA or State licensure as an audiologist. The audiological testing should precede the visit to
the otolaryngologist since the latter should have the audiological findings at the time of the examination. The
audiological examination should be conducted in accordance with OWCP requirements. The medical examination
should be performed by an otolaryngologist certified (or eligible for certification) by the American Board of
Otolaryngology. The physician should be instructed to conduct additional tests or retests in those cases where the
initial tests were inadequate or there is reason to believe the claimant is malingering. Audiological equipment used
for testing must meet the calibration protocol embodied in the Professional Services Board Manual of ASHA. Each
audiologist or physician who conducts hearing tests must certify that at the time of examination the equipment used
for testing met the standards for accreditation of an audiological facility by ASHA (ANSI S 3.6 (1969) and 3.1
(1977), respectively). See supra note 12 at Chapter 3.600.8.a (September 1994).
16

See L.L., Docket No. 10-16 (issued October 1, 2010); Phillip L. Barnes, 55 ECAB 426 (2004); Horace L.
Fuller, 53 ECAB 775, 777 (2002); James P. Bailey, 53 ECAB 484, 496 (2002); William J. Cantrell, 34 ECAB
1223 (1983).
17

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

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CONCLUSION
The Board finds that this case is not in posture for a decision regarding whether appellant
established that she sustained an employment-related hearing loss in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2014 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this opinion.
Issued: December 10, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MONTGOMERY VETERANS MEDICAL
CENTER, Jackson, MS, Employer
__________________________________________

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

Docket No. 12-157
Issued: December 19, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 31, 2011 appellant filed a timely appeal from a June 23, 2011 merit decision
and a July 29, 2011 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) regarding a schedule award. The record also contains a September 13, 2011 merit
decision in which OWCP changed the pay rate of appellant’s original schedule award. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.2
ISSUES
The issues are: (1) whether appellant sustained more than five percent right upper
extremity impairment, for which she received a schedule award; (2) whether OWCP properly
1
2

5 U.S.C. § 8101 et seq.

Appellant requested an oral argument. On October 5, 2012 the Clerk of the Board contacted appellant and
inquired as to whether she still had a continuing desire for an oral argument in Washington, DC. Appellant stated
that she did not desire an oral argument; thus, the Board will decide the appeal on the record.

denied her request for reconsideration; and (3) whether it properly recalculated the pay rate of
appellant’s original schedule award.
FACTUAL HISTORY
On September 11, 2008 appellant, then a 40-year-old nurse, injured her right shoulder
while assisting a patient. OWCP accepted the condition of right-sided rotator cuff tear and paid
appropriate benefits. On February 5, 2009 appellant underwent surgery for a right shoulder
anterior partial rotator cuff tear including extensive subacromial bursitis and labral fraying. She
returned to modified duty.
On July 2, 2009 appellant requested a schedule award. In a May 18, 2009 report,
Dr. Jason A. Craft, a Board-certified orthopedic surgeon, advised that she was three and a half
months post surgery and was working, with soreness and swelling at the end of the day. He
noted appellant’s shoulder range of motion and advised that she had “4+/5” strength. Dr. Craft
noted that she had reached maximum recovery from physical therapy and would have a
functional capacity evaluation. In a June 16, 2009 report, he stated that appellant had pain and
difficulty with elevation after a patient grabbed her right arm and shook it. Dr. Craft listed an
impression of right shoulder rotator cuff strain. On June 25, 2009 appellant underwent a
functional capacity evaluation, which determined that she was capable of performing medium
level work eight hours a day.
On July 20, 2009 OWCP’s medical adviser reviewed appellant’s medical record and
opined that maximum medical improvement was reached on May 18, 2009. He noted that she
had arthroscopic debridement for anterior superior labral fraying, a 30 percent partial thickness
rotator cuff tear and a subacrominal bursa on February 25, 2009 with residual postmoperation
loss of motion and slight weakness. Under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), the medical
adviser rated four percent right upper extremity impairment. Under Table 15-34, page 475, he
found forward evaluation or flexion 155 degrees equaled three percent impairment; internal
rotation 75 degrees equaled one percent impairment; and that this totaled four percent right arm
impairment.
By decision dated August 7, 2009, OWCP granted a schedule award for four percent
impairment to the right arm. The date of maximum medical improvement was May 18, 2009 and
the pay rate of September 11, 2008 was used. On August 24, 2009 OWCP reissued the schedule
award decision with a corrected payment amount.
On August 13, 2009 OWCP received a July 31, 2009 report from Dr. Craft, who
summarized appellant’s findings post surgery. Under the A.M.A., Guides, appellant had three
percent impairment for a partial thickness rotator cuff tear due to functional modifiers and some
persisting continued pains. No impairment calculations were provided. In an appeal request
form dated October 25, 2009, appellant requested reconsideration. A May 19, 2009 physical
therapy report was received together with Dr. Craft’s July 31, 2009 report.
By decision dated November 12, 2009, OWCP denied appellant’s reconsideration request
on the basis the evidence submitted was insufficient to warrant a merit review.

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On March 3, 2010 appellant underwent authorized surgery for a right shoulder rotator
cuff tear and labral fraying. She returned to full-time work June 1, 2010. OWCP accepted the
condition of complete rotator cuff rupture and paid appropriate benefits.
In a July 19, 2010 report, Dr. Craft stated that appellant had very good passive range of
motion of her shoulder with active only to about 110 degrees. He noted break away weakness
with spasm in her paraspinal muscles with rotation and some nondermatomal diffuse numbness
in her hand. Good strength was noted throughout appellant’s rotator cuff with no swelling.
Dr. Craft opined that she reached maximum medical improvement. Appellant underwent a work
functional capacity evaluation on August 23 and 24, 2010. In a September 10, 2010 report,
Dr. Craft advised that the functional capacity examination showed she was able to perform
sedentary level work with restrictions of no lifting or carrying more than 15 pounds. Under the
A.M.A., Guides, he opined that appellant had five percent impairment for her rotator cuff tear
which stayed the same throughout grade modifier adjustments. No impairment calculations were
provided.3
On March 25, 2011 appellant filed a claim for an increased schedule award.
In a June 15, 2011 report, OWCP’s medical adviser reviewed appellant’s medical record
including Dr. Craft’s September 10, 2010 report and the functional capacity evaluation reports of
August 23 and 24, 2010. He stated that she reached maximum medical improvement
July 19, 2010. The medical adviser noted that the rotator cuff tear was originally a partial tear
with debridement on February 25, 2009 which progressed to a full thickness tear that required
repair with a bone anchor and sutures on March 3, 2010 with excellent stable repair of the right
shoulder rotator cuff. He agreed that appellant had five percent impairment due to rotator cuff
injury, full thickness tear right rotator cuff post repair of right shoulder. Under Table 15-5, page
403, the medical adviser opined that she had class 1 or five percent default grade C for rotator
cuff injury, full thickness tear. He found that appellant had grade modifiers of one for Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS). Under the net
adjustment formula of (GMFH – diagnosed condition (CDX)) (1-1) + (GMPE – CDX) (1-1) +
(GMCS – CDX) (1-1), the medical adviser found a zero net. As appellant previously received a
four percent award for the partial rotator cuff repair, he subtracted that amount from the five
percent impairment and found she had an additional one percent impairment of her right arm.
By decision dated June 23, 2011, OWCP granted appellant a schedule award for an
additional one percent impairment. The date of maximum medical improvement was noted to be
July 19, 2010 and compensation was calculated with a pay rate date of March 3, 2010.
On an appeal request form dated July 7, 2011, appellant requested reconsideration. No
evidence was submitted with her request.

3

On October 20, 2010 appellant advised OWCP that she would like to change her physician from Dr. Craft to
Dr. William Geissler, a Board-certified orthopedic surgeon. OWCP authorized the change.

3

By decision dated July 29, 2011, OWCP denied appellant’s reconsideration request as her
letter neither raised substantive legal questions nor included new and relevant evidence.4
LEGAL PRECEDENT -- ISSUE 1
FECA provides that, if there is permanent disability involving the loss or loss of use of a
member or function of the body, the claimant is entitled to a schedule award for the permanent
impairment of the scheduled member or function.5 Neither FECA nor the regulations specify the
manner in which the percentage of impairment for a schedule award shall be determined. For
consistent results and to ensure equal justice for all claimants OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants.6 For schedule awards after May 1,
2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class for the
CDX, which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.9
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained the conditions of right-sided rotator cuff tear
and right shoulder rotator cuff rupture and paid appropriate benefits, including two surgical
procedures. On August 23, 2009 it granted her a schedule award for four percent impairment of
her right upper extremity.
4

By decision dated September 13, 2011, OWCP amended the schedule award decision of August 24, 2009
to reflect a corrected pay rate which resulted in OWCP paying appellant an additional $38.08 to reflect the proper
pay rate. On appeal, appellant has not appealed this decision and only disputes the percentage of impairment
determined by OWCP. OWCP also issued a September 19, 2011 decision denying wage-loss compensation from
April 28 to 29, 2011. Appellant has also not appealed this decision.
5

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
6

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

7

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

8

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
9

Id. at pp. 494-531.

10

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

4

Appellant claimed an increased schedule award on March 25, 2011. In support of her
claim, she submitted July 19 and September 10, 2010 reports from Dr. Craft, who indicated that
appellant reached maximum medical improvement July 19, 2010. In his September 10, 2010
report, Dr. Craft indicated that the functional capacity examination showed that appellant was
able to perform sedentary level work with restrictions. Under the A.M.A., Guides, he opined
that she had five percent impairment for her rotator cuff tear which stayed the same throughout
her grade modifier adjustments. However, Dr. Craft did not provide any impairment calculations
or indicate what tables were used in the A.M.A., Guides.
On June 15, 2011 OWCP’s medical adviser applied Table 155, page 403 of the A.M.A.,
Guides to Dr. Craft’s findings. He opined that appellant had class 1 or five percent default grade
C for rotator cuff injury, full thickness tear. The medical adviser found that appellant had grade
modifiers of one for GMFH, GMPE and GMCS. He utilized the net adjustment formula of
(GMFH – CDX) (1-1) + (GMPE – CDX) (1-1) + (GMCS – CDX) (1-1) and found a zero net
adjustment. While he assessed five percent right upper extremity impairment, the medical
adviser found appellant was entitled to an additional one percent right upper extremity
impairment as she was previously awarded four percent right upper extremity impairment for her
shoulder condition. When a current impairment duplicates a prior impairment, the schedule
award benefits are reduced by the period of compensation paid under the schedule award for an
earlier injury.11 As appellant previously received four percent right upper extremity impairment
and the evidence supports she is entitled to five percent right upper extremity impairment, she is
only entitled to an additional one percent right upper extremity impairment.
The Board finds that OWCP properly relied on Dr. Craft’s clinical findings, as
interpreted by OWCP’s medical adviser, to find that appellant had an additional one percent
impairment of the right upper extremity or a total impairment of five percent. OWCP’s June 23,
2011 decision was proper under the law and facts of this case.
On appeal, appellant contended that she has greater impairment as she continues to
experience pain and symptoms in her right shoulder. As noted, she did not submit probative
medical evidence to establish greater impairment of her right arm.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not considered by OWCP; or by submitting relevant and
pertinent evidence not previously considered by OWCP.12 Evidence that repeats or duplicates

11

T.S. Docket No. 09-1308 (issued December 22, 2009); 20 C.F.R. § 10.404(c).

12

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

5

evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.13
ANALYSIS -- ISSUE 2
On reconsideration, appellant did not submit any specific argument nor did she provide
new evidence. Consequently, she has not shown that OWCP erroneously applied or interpreted a
specific point of law; she has not advanced a relevant legal argument not previously considered
by OWCP; and she has not submitted relevant and pertinent evidence not previously considered
by OWCP. OWCP did not abuse its discretion in refusing to reopen appellant’s claim for a
review on the merits in its July 29, 2011 nonmerit decision.
CONCLUSION
The Board finds that appellant has not established that she is entitled to more than five
percent total right upper extremity impairment, for which she received schedule awards and
OWCP properly denied her reconsideration request.
ORDER
IT IS HEREBY ORDERED THAT the July 29 and June 23, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 19, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

13

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
INTERNATIONAL & NATIONAL
DISTRIBUTION CENTER, Jersey City, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1095
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On April 29, 2020 appellant, through counsel, filed a timely appeal from a December 18,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted March 31, 2014 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 31, 2014 appellant, then a 48-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his right shoulder when picking up a foot
locker while in the performance of duty. He stopped work on the date of injury.
In an April 1, 2014 report, Dr. Norman Penera, a Board-certified internist, diagnosed right
shoulder strain and advised that appellant was unable to work in any capacity at that time.
An April 4, 2014 right shoulder magnetic resonance imaging (MRI) scan demonstrated
degenerative changes of the acromioclavicular (AC) joint, extensive thickening, and abnormal
signal within the supraspinatus, subscapularis, and biceps tendons. It also revealed probable focal
full-thickness tear of the distal supraspinous tendon.
In an April 9, 2014 referral order, Dr. Penera diagnosed a full-thickness supraspinatus
rotator cuff tear.
In an April 22, 2014 medical report, Dr. Faisal Mahmood, an attending Board-certified
orthopedic surgeon, noted findings on his physical examination and advised that appellant suffered
from a right shoulder full-thickness supraspinatus rotator cuff tear with subacromial impingement.
He also diagnosed bursitis, AC joint hypertrophy/arthritis, biceps tendinitis, and labial fraying.
Based on these findings, Dr. Mahmood recommended arthroscopic surgery. In a note of even date,
he requested that appellant be excused from work until June 22, 2014.
By decision dated May 28, 2014, OWCP accepted that the March 31, 2014 employment
incident occurred, as alleged. However, it denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that his diagnosed right shoulder conditions were
causally related to the accepted March 31, 2014 employment incident.
OWCP subsequently received additional reports dated April 1 and 9, 2014 from Dr. Penera
who continued to treat appellant. Dr. Penera diagnosed right shoulder strain of the rotator cuff
capsule and reiterated his prior diagnosis of right shoulder full-thickness rotator cuff tear.
On June 6, 2014 appellant requested a review of the written record by a representative of
OWCP’s Branch and Hearings Review. He also provided a June 2, 2014 letter from Dr. Mahmood
who noted a history of his treatment of appellant’s injury. Dr. Mahmood reiterated his prior
3

Docket No. 19-0587 (issued July 22, 2019).

2

diagnoses and opined that appellant’s injury pattern was consistent with an injury sustained while
lifting an overhead object or repetitive use of the rotator cuff musculature leading to a fu llthickness tear and, as such, he concluded that the injury appellant sustained was causally related
to the employment incident on March 31, 2014.
OWCP subsequently received an attending physician’s report (Form CA-20) dated
May 20, 2014 in which Dr. Mahmood again noted a history of appellant’s accepted March 31,
2014 injury. Dr. Mahmood reiterated his diagnoses and checked a box marked “Yes,” indicating
that these conditions had been caused or aggravated by an employment activity of lifting overhead.
By decision dated August 19, 2015, an OWCP hearing representative affirmed the May 28,
2014 decision.
On November 5, 2015 appellant, through counsel, requested reconsideration of the
August 19, 2015 decision and submitted a November 3, 2015 letter from Dr. Mahmood, who noted
that appellant reported that lifting a foot locker weighing approximately 65 to 70 pounds at work
on March 31, 2014 led to his inability to fully abduct his shoulder. Dr. Mahmood further noted
that appellant related that, prior to this incident, he had full range of motion of the shoulder. He
explained that that, while MRI scan findings demonstrated some degenerative signs consistent
with regular use, including AC joint arthropathy, appellant also had a full-thickness tear of the
rotator cuff muscle, which was not a preexisting condition as he was able to abduct his shoulder
prior to the work-related incident. Because appellant could no longer abduct his shoulder since
the accepted March 31, 2014 incident, Dr. Mahmood concluded that appellant’s full-thickness
rotator cuff tear was consistent with a traumatic injury sustained during the accepted employment
incident.
By decision dated May 13, 2016, OWCP denied modification of the August 19, 2015
decision.
On July 5, 2016 appellant, through counsel, requested reconsideration and submitted a
June 14, 2016 letter from Dr. Mahmood, who continued to opine that appellant sustained a workrelated right shoulder condition and that there was a causal relationship between his condition and
the accepted March 31, 2014 employment incident.
By decision dated March 7, 2017, OWCP denied modification of its prior decision.
On September 13, 2017 appellant, through counsel, requested reconsideration.
By decision dated December 11, 2017, OWCP denied modification of its prior decision.
On July 18, 2018 appellant, through counsel, requested reconsideration and submitted an
addendum note dated July 11, 2018 from Dr. Mahmood, who reiterated his prior opinion that
appellant’s right shoulder injuries were work related.
By decision dated October 16, 2018, OWCP denied modification of its December 11, 2017
decision.

3

On January 17, 2019 appellant, through counsel, appealed to the Board. By decision dated
July 22, 2019, the Board affirmed OWCP’s October 16, 2018 decision, finding that appellant had
not met his burden of proof to establish a right shoulder condition causally related to the accepted
Match 31, 2014 employment incident. 4
On December 5, 2019 appellant, through counsel, requested reconsideration and submitted
an October 28, 2019 medical report from Dr. David Weiss, a Board-certified orthopedic surgeon,
who examined appellant and reviewed his history of treatment and diagnostic studies. Dr. Weiss
conducted a physical examination and diagnosed a post-traumatic full-thickness rotator cuff tear
to the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an
aggravation of preexisting quiescent age-related acromioclavicular joint arthropathy to the right
shoulder. He explained that an impingement syndrome occurred when one raised his or her arm
to shoulder height and above, and the space between the acromion and the rotator cuff narrowed.
Dr. Weiss indicated that the acromion could then rub against or impinge the tendon in the rotator
cuff causing irritation and pain. He further explained that this compression could cause attenuation
on the tendon and predispose appellant to tearing of the rotator cuff. Dr. Weiss noted that for a
person with aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to
repetitive use had even less space in the area and that shoulder elevation would cause a greater
impingement and a greater probability of shoulder tendinopathy. He noted that the MRI scan
revealed that appellant had degenerative changes of the acromioclavicu lar joint predisposing him
to an impingement syndrome. Dr. Weiss opined that lifting a 65- to70-pound heavy plastic
footlocker from the ground above the shoulder at the time of the accepted March 31, 2014
employment incident led to significant impingement and caused the full thickness rotator cuff tear
of the supraspinatus tendon. He noted that, when evaluating occupational risk factors with
shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence that
awkward postures like sustained shoulder postures with more than 60 degrees of flexion and
abduction could lead to the diagnosed pathology. Dr. Weiss concluded that the accepted
March 31, 2014 employment incident was the dominant-producing cause of appellant’s injury.
By decision dated December 18, 2019, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 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, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition f or which compensation is claimed is causally related to the

4

Docket No. 19-0587 (issued July 22, 2019).

5

Supra note 2.

6

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).

4

employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
To determine 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. First, the employ ee 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 whether the employment
incident caused a personal injury and can be established only by medical evidence. 9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 10 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that findings made in prior Board decisions are res judicata,
absent further review by OWCP under section 8128 of FECA. It is, therefore, unnecessary for the
Board to consider the evidence appellant submitted prior to the issuance of OWCP’s October 16,
2018 decision as the Board considered that evidence in its July 22, 2019 decision.12
In support of his request for reconsideration, appellant submitted an October 28, 2019
medical report from Dr. Weiss who diagnosed a post-traumatic full-thickness rotator cuff tear to
the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an aggravation
of preexisting quiescent age-related AC joint arthropathy to the right shoulder. Dr. Weiss
explained that an impingement syndrome occurred when one raised his or her arm to shoulder
height and above, and the space between the acromion and the rotator cuff narrowed. He related
that the acromion could then rub against or impinge the tendon in the rotator cuff causing irritation
7

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).
8

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).
9

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).
10

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
11

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
12

C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).

5

and pain. Dr. Weiss noted that this compression could cause attenuation on the tendon and
predispose appellant to tearing of the rotator cuff. He further explained that for a person with
aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to repetitive use had
even less space in the area and that shoulder elevation would cause a greater impingement and a
greater probability of shoulder tendinopathy. Dr. Weiss noted that the MRI scan revealed that
appellant had degenerative changes of the acromioclavicular joint predisposing him to an
impingement syndrome. He opined that lifting a 65- to70-pound heavy plastic footlocker from the
ground to above the shoulder led to significant impingement and caused the full thickness rotator
cuff tear of the supraspinatus tendon. Dr. Weiss explained that, when evaluating occupational risk
factors with shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence
that awkward postures like sustained shoulder postures with more than 60 degrees of flexion and
abduction led to the diagnosed pathology.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done. 13
Dr. Weiss is a Board-certified physician who is qualified in his field of medicine to render
rationalized opinions on the issue of causal relationship. The Board finds that, although his opinion
is insufficiently rationalized to establish causal relationship, it does raise an uncontroverted
inference regarding causal relationship between the diagnosed conditions and the accepted
March 31, 2014 employment incident sufficient to require further development of the case record
by OWCP.14 Thus, the Board finds that Dr. Weiss’ opinion is sufficient to require further
development of the record by OWCP. 15
The Board will therefore remand the case for further development of the medical evidence.
On remand, OWCP shall prepare a statement of accepted facts and obtain a rationalized opinion
from a physician in the appropriate field of medicine as to whether the accepted employment
incident caused, contributed to, or aggravated the diagnosed right shoulder c onditions.16 If the
physician opines that the diagnosed conditions are not causally related, he or she must explain with
rationale how or why their opinion differs from that of Dr. Weiss. Following this and other such
further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

C.R., Docket No. 20-1102 (issued January 8, 2021); K.P., Docket No. 18-0041 (issued May 24, 2019).

14

See B.F., Docket No. 20-0990 (issued January 13, 2021); Y.D., Docket No. 19-1200 (issued April 6, 2020).

15

See A.D., Docket No. 20-0758 (issued January 11, 2021); C.R., Docket No. 20-0366 (issued December 11, 2020);
John J. Carlone, supra note 9; Horace Langhorne, 29 ECAB 820 (1978).
16

C.G., Docket No. 20-1121 (issued February 11, 2021); A.G., Docket No. 20-0454 (issued October 29, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the December 18, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 29, 2022
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